The Indiana Law Blog

Tuesday, February 09, 2010

Ind. Decisions - Transfer list for week ending February 5, 2010

I'm told: "The Court did not issue any transfer orders last week."

Posted by Marcia Oddi on February 9, 2010 01:13 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In Roger L. Morris v. State of Indiana , a 9-page opinion, Judge Crone writes:

Roger L. Morris appeals his conviction for class D felony theft and habitual offender finding. We find the dispositive issue to be whether the trial court erred by failing to instruct the jury on conversion as a lesser-included offense of theft. We reverse and remand for retrial. * * *

In our view, Morris’s case is one which illustrates the elusive difference between the crimes of theft and conversion as laid out by our legislature. Here, Morris entered the J.C. Penney store and stuffed clothes into a black plastic garbage bag, thus exerting control over the merchandise. Department and clothing stores generally allow customers to carry merchandise which has not yet been purchased throughout the store as they shop. In fact, customers are expected to move about the store while selecting items to try on in a fitting room or while simply making a decision about whether to make a purchase. Moreover, a customer might place the unpurchased items in a cart or shopping bag provided by the store. These are all examples of exerting authorized control over store property. On the other hand, if someone moves or hides unpurchased items within the confines of a store with no intent or ability to purchase them, then the person exerts unauthorized control over that property. In this case, Morris had no cash, checks, or credit cards on his person and thus no way to purchase any of the clothing in the garbage bag. Clearly, he exerted unauthorized control over those items and does not dispute that fact. * * *

Also, we think that if the criminal conversion and theft statutes are indeed one and the same, then they violate the Proportionality Clause, which is contained in Article 1, Section 16 of the Indiana Constitution. * * *

In sum, if criminal conversion as a class A misdemeanor and theft as a class D felony are indeed two different crimes as outlined by our legislature, then the trial court abused its discretion by failing to instruct the jury as to the lesser-included offense of conversion. If the elements of conversion and theft have no practical difference, then the rule of lenity and/or the proportionality clause of the U.S. Constitution would entitle Morris to have the jury instructed on both crimes. Reversed and remanded for retrial.

RILEY, J., concurs.
VAIDIK, J., concurs in result.

In Cathy A. Crawley v. State of Indiana, a 13-page, 2-1 opinion, Judge Vaidik writes:

Cathy Crawley appeals her conviction for Class C felony operating a motor vehicle after driving privileges are forfeited for life. Although nobody witnessed Crawley operate the motor vehicle, we conclude that the State presented sufficient circumstantial evidence from which the trier of fact could conclude beyond a reasonable doubt that Crawley operated the motor vehicle. We therefore affirm her conviction. * * *

When taken as a whole, the substantial circumstantial evidence supports the trial court’s inference that Crawley operated the car, ultimately driving it into Jones’ pool. Shortly after the accident, Crawley was found alone and seriously impaired at the scene. Multiple times she referred to the motor vehicle as “my car.” She initially lied about who she was with but eventually admitted to being alone, and she attempted to evade contact with the police. We therefore affirm Crawley’s conviction for operating a motor vehicle after driving privileges are forfeited for life. Affirmed.

CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins at p. 12] I respectfully dissent. The majority makes light of the fact that no eye witness ever placed Crawley in the driver’s seat of the car. Appellate cases dealing with the sufficiency of the evidence to prove operation of a vehicle usually include fact patterns where a witness has found the defendant in the driver’s seat of the vehicle alleged to have been operated. * * *

I believe that the evidence, taken together, creates a probability that Crawley operated the vehicle, but this probability is less than beyond a reasonable doubt. Although we often state that it is not our function to reweigh the evidence, when we compare the evidence presented by the State here to the evidence in Parks, Clark, and Hiegel it is a break from our precedent to affirm Crawley’s conviction.

NFP civil opinions today (6):

Michael J. Brown v. Debra Wyandt (NFP) - "Debra Wyandt, individually and in her capacity as trustee of the Debra Wyandt Revocable Trust (collectively “Wyandt”), brought suit in Hamilton Superior Court against Michael J. Brown, individually and in his capacity as trustee of the Michael J. Brown Revocable Trust (collectively “Brown”). The parties eventually entered into an agreed order (the “Agreed Order”) pending final resolution of the litigation between them. The trial court subsequently granted Wyandt’s request for partial distribution pursuant to the Agreed Order. Brown appeals and argues that the trial court erred in granting Wyandt’s request. We affirm."

A & M Farm Center, Inc. v. AGCO Finance, LLC f/k/a Agricredit Acceptance Co. (NFP) - "We acknowledge that our supreme court has held: “if one of two innocent parties must suffer due to a betrayal of trust – either the principal or the third party – the loss should fall on the party who is most at fault. Because the principal puts the agent in a position of trust, the principal should bear the loss.” [cites omitted] A jury may very well determine that A&M is the most at fault and should suffer the loss here. However, a jury may alternatively determine that, despite the fact that Leek was, no doubt, processing AGCO agreements in his capacity as vice-president and manager of A&M, several key differences exist in the personal transactions he conducted with AGCO, which we highlighted and discussed. Because genuine issues of material fact exist regarding whether Leek had actual, apparent, or inherent authority to enter into the Cable Tech agreements with their full recourse provisions on behalf of A&M, we conclude that the trial court erred by granting summary judgment to AGCO. We reverse and remand."

Elvera D. Nicholson (formerly Defelice) v. Carlee, Inc. d/b/a Leroy's Hot Stuff (NFP) - "While we are sensitive to an employer “playing fast and loose with wage obligations,” St. Vincent Hospital., 766 N.E.2d at 706 (Boehm, J., concurring), that is not what occurred here. Carlee paid Nicholson her final wages as soon as her whereabouts became known. Nicholson has failed to meet her burden to demonstrate that Carlee violated the Wage Payment Statute. Thus, she is not entitled to the penalties outlined by Indiana Code Section 22-2-5-2.4"

Richard and Susan Reger v. City of Auburn Board of Zoning Appeals (NFP) - "Richard and Susan Reger (“the Regers”) sought a writ of certiorari in the DeKalb Superior Court challenging the City of Auburn's decision to issue permits to an adjoining landowner to make improvements to the duplex on the property. The trial court denied and dismissed the writ after concluding, in part, that the Regers had not established that they were an aggrieved party, and therefore, that they lacked standing to appeal the issuance of the permits. We address only the following dispositive issue: whether the Regers lacked standing to challenge the issuance of the permits. We affirm. * * *

"In this case, the Regers failed to present any evidence that would establish that the issuance of the permits to Weinbrenner infringed upon a legal right of the Regers, which resulted in a pecuniary injury. For this reason, we conclude that the trial court properly concluded that the Regers were not aggrieved parties, and therefore, that they lacked standing to challenge the BZA's decision."

Three Little Birds, LLC v. Stone Manor Investment Corp., Linda Beacham and Daniel Hanley (NFP) - "In sum, we conclude that summary judgment is precluded on the claims relating to the scope of the express easement, the existence of an implied easement of necessity, and civil and criminal trespass prior to a determination regarding ownership of the strip of land in question and that the trial court properly granted summary judgment in favor of Stone Manor on Three Little Birds's claim of tortious interference with contract. The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings."

Linda K. Cecil v. Rex W. Cecil (NFP) - "Linda K. Cecil (“Linda”) appeals the trial court's order denying her petition to hold her ex-husband, Rex W. Cecil (“Rex”), in contempt and raises the following issue: whether the trial court erred when it concluded that Rex was not in contempt for failing to timely refinance certain real estate in accordance with the court-ordered deadline. We affirm."

NFP criminal opinions today (11):

Toby E. Vautaw v. State of Indiana (NFP)

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

Don Chavis v. State of Indiana (NFP)

William H. Carnahan v. State of Indiana (NFP)

Danny Stewart v. State of Indiana (NFP)

Jeremy Jamison v. State of Indiana (NFP)

Larry R. Bradley v. State of Indiana (NFP)

Walter Hawkins v. State of Indiana (NFP)

Jonathan R. Crane v. State of Indiana (NFP)

Brandon Serna v. State of Indiana (NFP)

Timothy Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on February 9, 2010 12:51 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana opinion today from the 7th Circuit

In Dan Helcher, et al. v. Dearborn County Board of Zoning Appeals (SD Ind., Barker), a 36-page opinion, Judge Rovner writes:

Cincinnati Bell Wireless, LLC (“Bell”) applied for a conditional use permit to construct a wireless communication facility (essentially, a cellphone tower) on property owned by Dan and Merry Helcher in Dearborn County, Indiana. When the local Board of Zoning Appeals (“Zoning Board” or “Board”) denied the application, Bell sued the Board and its members for violating various provisions of the Telecommunications Act of 1996, 47 U.S.C. § 332(c). The district court granted summary judgment in favor of the defendants, and Bell appeals. We affirm. * * *

After the testimony, Zoning Board member Patricia Baker moved to deny the application for a special use permit. By a vote of three to one, the Zoning Board denied the application. At the May 2006 meeting of the Zoning Board, many disputes arose during the process to approve the minutes of the March meeting. Members of the Zoning Board, representatives of Bell and the Helchers, and objecting landowners all suggested numerous revisions to the minutes. Unable to agree on many points, the Board tabled approval of the minutes until the next meeting. In early June 2006, the plaintiffs asked the Board not to approve the revised minutes and also requested that the Board reconsider its decision to deny the permit application. At the June meeting, the Board approved the minutes as revised (“Minutes”) and denied the plaintiffs’ request to reconsider the denial of the permit application.

The next month, Bell and the Helchers filed a complaint against the Board and its individual members, alleging several violations of the Telecommunications Act of 1996, 47 U.S.C. § 332(c) (the “Act”). Count I alleged that the Board’s decision was not based on substantial evidence contained in a written record, as required by 47 U.S.C. § 332(c)(7)(B)(iii). Count II asserted that the approved Minutes of the March 14, 2006 Zoning Board meeting did not constitute a sufficient written decision as required by 47 U.S.C. § 332(c)(7)(B)(iii). In Count III, the plaintiffs contended that the Zoning Board’s decision unreasonably discriminated against Bell, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(I). Count IV maintained that the Zoning Board’s decision had the effect of denying the provision of wireless communication services, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). Counts V though IX, which are not at issue in this appeal, alleged violations of the Constitution and the civil rights of the applicants.

The district court granted the defendants’ motion for partial summary judgment on the first four counts of the complaint. Helcher v. Dearborn County, 500 F.Supp.2d 1100 (S.D. Ind. 2007). The court rejected the plaintiffs’ claim that the Zoning Board Minutes were an inaccurate recording of what went on during the meeting and that the Minutes were not adequate to meet the Act’s requirement that the decision be “in writing.” The court found that a written decision was adequate so long as it informed the applicant of the local government’s decision denying the application. In this instance, the court found, the meeting Minutes fulfilled this requirement because the Minutes enabled the court to efficiently judge the Board’s findings and conclusions against the record. The court also noted that the Minutes supplied the reasons underlying the Zoning Board’s decision by noting the sections of the Ordinance which the applicants failed to satisfy. The court found that the Minutes allowed for meaningful judicial review of the decision, and that no more was required by the Telecommunications Act. The court also found that the Zoning Board’s decision was supported by substantial evidence, that the denial of the permit did not effectively prohibit the provision of wireless service, and that the Zoning Board did not unreasonably discriminate among wireless service providers. Bell appeals. * * *

We proceed then to the merits of the appeal.

A.
The Act requires that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). Bell and the Helchers contend that the Zoning Board’s decision does not comply with the Act’s requirement that the decision must be “in writing.” What is necessary for an adequate writing under the Telecommunications Act is an issue of first impression in our circuit.[3] There are differing views among the circuits as to what constitutes an adequate writing. * * *

We join the First, Sixth and Ninth Circuits, the majority of the courts that have reached this issue. The “in writing” requirement is met so long as the written decision contains a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons. * * *

On the threshold question of whether the Minutes met the “in writing” requirement, we conclude that the Minutes met the standard we set forth above.

_______
[3] Although the Seventh Circuit has yet to rule on the “in writing” requirement, our own Judge Cudahy considered the question when sitting by designation on the Ninth Circuit. See MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 721-23 (9th Cir. 2005) (Cudahy, J., writing for the panel). We are greatly aided by his analysis.

Posted by Marcia Oddi on February 9, 2010 12:15 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Appeals court sides with Greenfield homeowner"

Marilyn Elliott and Michael Elliott v. JP Morgan Chase Bank, et al., a Feb. 3rd decision by the Court of Appeals (see ILB summary here), was the subject of a story yesterday by Jeff Swiatek that appeared in the printed Indianapolis Star, but somehow missed the online version. Here it is:

In what it called a "Kafkaesque" case involving a Greenfield homeowner and the nation's largest bank, the Indiana Court of Appeals has come out in favor of the homeowner.

The court reversed a default judgment by a Hancock County court against the homeowner and ordered that a trial be held before banking giant JPMorgan Chase can carry out a foreclosure and eviction.

"The Kafkaesque character of this litigation is difficult to deny," the appeals court wrote in its 10-page opinion issued last week.

Evidence in the case shows Chase bank was unaware of the 2006 foreclosure against the plaintiffs, Marilyn and Michael Elliott, Greenfield, and in fact had declared the Elliotts' mortgage to be paid off. The servicer of the Chase mortgage on the Elliotts' house, Ocwen Financial Corp. of West Palm Beach, Fla., pursued an eviction even though Chase indicated the Elliotts had paid off the mortgage, and carried out a sheriff's sale of the property.

There's no proof that the Elliotts were ever told of the sheriff's sale before it occurred, the appeals court said.

The Elliotts' attorney, Thomas E.Q. Williams, Greenfield, said the couple found out about the sale only when an Ocwen representative showed up with a moving van to evict them.

Told of the court's ruling this week, Marilyn Elliott "was in tears" of happiness, Williams said. "She's been through so much trying to keep her home," which her father built many years ago, he said.

Williams said Indiana courts have traditionally favored the lender in foreclosure disputes, so "hopefully this opinion will give some homeowners . . . hope that summary procedures to take their home away from them can be challenged. A homeowner has challenged the largest bank in the country, and a court in Indiana has listened to them."

Chase's Cincinnati attorney, Sarah Okrzynski, didn't return a call for comment.

Posted by Marcia Oddi on February 9, 2010 10:08 AM
Posted to Ind. App.Ct. Decisions

Law - Possible recess appointment for Dawn Johnsen floated

Manu Raju of Politico reports today:

Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.

But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.

Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have? * * *

Some are urging Obama to install some of his nominees during the Presidents Day recess the week of Feb. 15. On the top of the list: Craig Becker, Obama’s controversial, labor-backed nominee for the National Labor Relations Board.

Democrats will try to get the 60 votes necessary to break a GOP filibuster on Becker’s nomination Monday. But with the arrival of Sen. Scott Brown (R-Mass.), they’ve got just 59 likely votes, and it’s not clear whether they can persuade a single Republican senator to cross over on the cloture motion. * * *

In addition to Becker, there are a number of controversial appointments whose recess appointments could inflame Republican passions — including Dawn Johnsen, Obama’s nominee to head the Justice Department’s Office of Legal Counsel. Democrats said Obama could be on safer political ground if he uses early recess appointments to install national security nominees, including four to senior positions in the Pentagon.

ILB Note: Part of the Politico story turns on Senator Shelby's blanket hold on all Obama nomintees. That hold was lifted this morning.

Posted by Marcia Oddi on February 9, 2010 09:59 AM
Posted to General Law Related

Ind. Law - Ignition interlock bills move to second house

A long ILB entry from Nov. 21, 2009 was headed "More on: "Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks". Access it here.

A story by Kevin Allen of the South Bend Tribune reports:

Habitual traffic violators, including those with histories of drunken driving, would have to submit to stricter monitoring if two bills moving through the General Assembly become law.

Senate Bill 221 would require people with restricted driver’s licenses to submit to sobriety tests when stopped for other traffic violations, wear a device that detects and records their use of alcohol, and install an ignition interlock device on their vehicles.

An ignition interlock requires an alcohol-free breath sample from the driver before the vehicle will start.

"There’s been some confusion as to how far judges and courts can go when they have an individual in this situation. This eliminates any confusion," said Sen. John Broden, D-South Bend, who wrote the bill with Sen. Tom Wyss, R-Fort Wayne.

Senate Bill 247 is another bill that calls on courts to make greater use of ignition interlocks to curb drunken driving.

Under that bill, a person convicted of operating while intoxicated could be prohibited from driving for at least 90 days unless his or her vehicle is equipped with an ignition interlock.

Sen. Joe Zakas, R-Granger, is one of the authors of SB 247. He said the bill is intended to encourage judges to employ a technique that already is available to them.

"We’ve been strengthening and toughening our drunk driving laws for years, but there is always more that needs to be done," Zakas said. "This is part of that effort."

Both SB 221 and SB 247 easily passed the Senate last week and are now being considered in the House Judiciary Committee.

Posted by Marcia Oddi on February 9, 2010 09:48 AM
Posted to Indiana Law

Environment - Stories on CAFOs, Pines coal ash, Asian Carp, Biomass plants [Updated]

A number of Indiana environmental stories today:

• "Randolph megadairy files for bankruptcy", from the Richmond Palladium-Item.

• "EPA to update Pines residents about coal ash contamination", from the Gary Post-Tribune.

• "U.S. Officials Plan $78.5 Million Effort to Keep Dangerous Carp Out of Great Lakes", a story by Monica Davey in the NY Times. A quote:

  The plan, which would be paid for mostly with federal money already promised to Great Lakes restoration efforts, calls for new barriers to prevent flooding that might allow the spread of the fish. It also seeks completion of a third electric barrier aimed at preventing the fish, which have already made homes in the Mississippi River system, from traveling through the waterways that lead to the Great Lakes.

  The plan suggests that navigational locks along those waterways, which connect to Lake Michigan and are crucial to commercial barge traffic in the Chicago area, could be opened less often than they are now as a way to slow the carp.

  Gov. Jennifer M. Granholm of Michigan, a Democrat who attended the meeting, said the measures were inadequate, particularly the notion of opening the locks less frequently. “They just need to shut the locks down, at least temporarily,” Ms. Granholm said in a telephone interview after the meeting.

  She added that some type of modified schedule for closing the locks would hardly stop the fish from swimming.

• "State extends comment time on biomass plants", a story today in the Louisville Courier Journal, reported by Grace Schneider. The story begins:

  Indiana environmental regulators have agreed to provide another three weeks for public comment about air-quality permits for two proposed biomass power plants in Scottsburg and Milltown.

  The decision by the Indiana Department of Environmental Management to accept comments until Feb. 24 came after several Scott County residents urged agency officials last week to allow time to review new information about smokestacks and other plans submitted by Liberty Green Renewables, the company that is developing the two power stations.

  On Monday, agency spokesman Rob Elstro said a “significant number of requests” convinced officials to extend the comment period. Regulators also are still evaluating technical details about the planned smokestacks for the facilities and emissions from switch grass, which may be burned as one of the fuels for the facilities, Elstro said.

[Updated at 12:30 PM] More on CAFOs. See this letter today in the Fort Wayne Journal Gazette, headed "Lawmakers allowing pollution by CAFOs", that begins:

What follows is a report on the efforts to get some legislation that requires responsible operation of the confined animal feeding operations in Indiana.

Posted by Marcia Oddi on February 9, 2010 09:24 AM
Posted to Environment

Ind. Law - More on "The government has your baby's DNA "

Updating this ILB entry from Saturday, Feb. 6th, USA Today has a long story today headed "Debate over blood samples from babies." It begins:

WASHINGTON (AP) — A critical safety net for babies — that heelprick of blood taken from every newborn in the U.S. — is facing an ethics attack.

After those tiny blood spots are tested for a list of devastating diseases, some states are storing them for years. Scientists consider the leftover samples a treasure, both to improve newborn screening and to study bigger questions, like which environmental toxins can harm a fetus' developing heart or which genes trigger childhood cancers.

But seldom are parents asked to consent to such research — most probably do not know it occurs — raising privacy concerns that are shaking up one of public health's most successful programs. Texas is poised to throw away blood samples from more than 5 million babies to settle a lawsuit from parents angry at what they call secret DNA warehousing. A judge recently dismissed a similar lawsuit in Minnesota.

Michigan just moved 4 million leftover blood spots into a new "BioTrust for Health," planning a public education campaign about the research potential and how families can opt out.

Posted by Marcia Oddi on February 9, 2010 08:18 AM
Posted to Indiana Law

Courts - Cheek swabs and the 4th amendment

On Jan. 11, 2010, the Indiana Supreme Court heard oral argument in the case of Arturo Garcia-Torres v. State of Indiana (64S03-0912-CR-550, Porter Co.). Here is the summary from this Jan. 11, 2010 ILB entry:

Garcia-Torres was convicted of rape and burglary in the Porter Superior Court. The Court of Appeals affirmed, holding among other things that taking a cheek swab to obtain a DNA sample requires "reasonable suspicion", obtaining a swab is not subject to the advice-of-counsel requirements in Pirtle v. State, and the trial court properly denied the defense’s motion to suppress evidence. Garcia-Torres v. State, 914 N.E.2d 268 (Ind. Ct. App. Sept. 30, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

[See the ILB summary of the 2-1 COA opinion here. From the dissent: "I believe that the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle."]

According to p. 4 of the Indiana Court of Appeals opinion:

On June 13, 2005, Valparaiso police brought Garcia-Torres in for questioning. Valparaiso Police Detective John Ross questioned Garcia-Torres about the attack on S.P., followed by Valparaiso Police Detective Thomas Horn, who questioned Garcia-Torres about the rape of M.S. At the beginning of Detective Horn‘s interview with Garcia-Torres, he requested and received consent to collect a DNA sample via a swab from the inside of Garcia-Torres‘s cheek.

Yesterday evening Prof. Eugene Volokh posted this discussion of the issue, based on California federal decisions. Here is how Volokh's analysis of the decisions begins:

Cheek Swabs for Arrestees’ DNA Likely Don’t Violate the Fourth Amendment — Even Though Cheek Swabs of Pretrial Detainees Do Violate the Amendment.

That’s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We’re talking here about the taking of DNA just because someone is arrested or detained; if there’s probable cause to believe the DNA will reveal evidence of some crime — for instance, if there’s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape — and a warrant based on probable cause, that’s clearly constitutional.)

The readers' comments are also interesting.

Posted by Marcia Oddi on February 9, 2010 07:56 AM
Posted to Courts in general | Indiana Decisions

Environment - "State lawmakers laying plans for coal-gas pipeline"

Updating earlier, and worth reviewing, ILB entries, including "Still more on: Governor signs first bill of 2009 session" from Nov. 25, 2009, and "Voices aired on Rockport gasification plant" from Dec. 4, 2009, Evan Shields has a story today in the Evansville Courier & Press, headed "State lawmakers laying plans for coal-gas pipeline." The bill, SB 115, has passed the Senate.

Posted by Marcia Oddi on February 9, 2010 07:45 AM
Posted to Environment

Monday, February 08, 2010

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

For publication opinions today (4):

In Gatlin Plumbing & Heating, Inc. v. Estate of Robert Yeager , a 16-page, 2-1 opinion, Judge Darden writes:

Gatlin Plumbing & Heating, Inc. (“Gatlin”) appeals the denial of its objection to the trial court's order in the Matter of the Estate of Robert H. Yeager (“the Estate”) that directed the transfer of 63 shares of Gatlin capital stock held by the late Robert H. Yeager (“Robert”). We affirm. * * *

KIRSCH, J., concurs.
MAY, J., dissents with separate opinion. [that begins, at p. 13] The decision by Yeager's heirs not to open an estate, even though the decedent's assets exceeded the $50,000 limit, should not permit them to circumvent the shareholder's agreement to which Yeager was a party. I must therefore respectfully dissent.

Lei Shi v. Cecilia Yi, et al. "Lei Shi appeals the trial court’s grant of a motion to dismiss and a motion for summary judgment filed by Your Title Company, LLC d/b/a Enterprise Title (“Enterprise”). Shi raises three issues, which we revise and restate as whether the trial court erred in granting Enterprise’s motions to dismiss and for summary judgment as the cause of action relates to Enterprise. We affirm."

In A.S. v. T.H. , a 9-page opinion, Judge Darden writes:

A.S. appeals the trial court's order of protection against her pursuant to a petition filed by T. H. We affirm. * * *

We return to the legislature's stated purpose that the Act provide a mechanism for a protective order that promotes the protection and safety of all victims of domestic violence and prevents future domestic violence. See I.C. § 34-26-5-1. The Act authorizes an order of protection that would prohibit the respondent “from harassing, annoying, telephoning, contacting,” or communicating with the petitioner, I.C. § 34-26-5-9(b)(2); to order the “relief necessary to provide for the safety and welfare of a petitioner and each designated family or household member,” and “necessary to bring about a cessation of the violence or the threat of violence,” as well as I.C. § 34-36-5-9(b)(2), (b)(6), and (f). Here, the trial court was presented with facts indicating physical violence by A.S. and a pattern of acts directed at harassing T. H.'s household. The trial court took action as authorized by statute in order to maintain the peace and to prevent the occurrence of any future domestic violence. We find sufficient evidence of probative value and reasonable inferences supports its issuance of the protective order. Tons, 815 N.E.2d at 511.

In Samuel Hampton v. State of Indiana , a 9-page opinion, Judge Brown writes:

Samuel Hampton appeals his conviction for child molesting as a class A felony.1 Hampton raises one issue, which we revise and restate as whether the evidence is sufficient to sustain Hampton's conviction. On cross appeal, the State raises one issue, which we revise and restate as whether the sentence imposed by the trial court is illegal. We affirm.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of N.W.; E.W. & M.W. v. IDCS (NFP) - "Mother next argues that the termination of her parental rights violates the Indiana Constitution’s Article 1 Section 30 prohibition on corruption of blood. Mother’s argument shows a fundamental misunderstanding about the nature and purpose of parental rights termination. The purpose of terminating parental rights is not to punish the parent (and certainly not the child) for the parent’s status, poor choices, or crimes. Rather, its primary, well-established purpose is to protect the child and ensure that the child’s best interests are served. The Article 1 Section 30 prohibition on corruption of blood bears no relation to and does not affect the process of termination of parental rights."

Matter of the Unsupervised Estate of Darwin Schultz; Daryl Schultz v. Judge Robert Hall, et al. (NFP) - "Daryl Schultz (“Schultz”), an heir of the Estate of Darwin Schultz (“the Estate”), filed pro se in Jackson Superior Court a “Verified Petition for Relief from Frauds, Illegalities and Wrongfully Intending Perpetrated In Connection with the Estate of Darwin L. Schultz” against Judge Robert Hall, Ned Tonner, Donald Shelmon, Robert Gabrielse, and Thomas Fritts (collectively “the Respondents”). After concluding that Shultz lacked standing to assert the claims raised in his petition, the court dismissed all claims pending against the Respondents. Schultz pro se appeals the trial court's finding that he lacked standing to raise the claims set forth in his petition. We affirm."

NFP criminal opinions today (4):

Keith McCoy v. State of Indiana (NFP)

Robert Hawkins v. State of Indiana (NFP)

Kevin L. Hampton v. State of Indiana (NFP)

Robert M. Foy, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on February 8, 2010 01:19 PM
Posted to Ind. App.Ct. Decisions

Courts - "A former bank robber, Shon R. Hopwood emerged from more than a decade in federal prison as a skilled Supreme Court practitioner"

Adam Liptak of the NY Times has a pretty amazing story today. Here is a sample:

Mr. Hopwood spent much of that time in the prison law library, and it turned out he was better at understanding the law than breaking it. He transformed himself into something rare at the top levels of the American bar, and unheard of behind bars — an accomplished Supreme Court practitioner.

He prepared his first petition for certiorari — a request that the Supreme Court hear a case — for a fellow inmate on a prison typewriter in 2002. Since Mr. Hopwood was not a lawyer, the only name on the brief was that of the other prisoner, John Fellers.

The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.

“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”

Mr. Waxman agreed to take the case on without payment. But he had one condition.

“I will represent you,” Mr. Waxman recalled telling Mr. Fellers, “if we can get this guy Shon Hopwood involved.”

Mr. Fellers said sure. “It made me feel good that we had Shon there to quarterback it,” Mr. Fellers said.

The former solicitor general showed the bank robber drafts of his briefs. The two men consulted about how to frame the arguments, discussed strategy and tried to anticipate questions from the justices.

The case was about whether the police had crossed constitutional lines in questioning Mr. Fellers, who had been convicted of a drug conspiracy. Mr. Hopwood said he thought persuading Justice Sandra Day O’Connor would be crucial.

In January 2004, Mr. Waxman called Mr. Hopwood at the federal prison in Pekin, Ill. They had won a 9-to-0 victory. Justice O’Connor wrote the opinion.

Posted by Marcia Oddi on February 8, 2010 12:23 PM
Posted to Courts in general

Environment - Asian carp talks today at White House "may miss bigger lake challenge"

Dan Egan of the Milwaukee Journal-Sentinel had this long and thorough story Sunday that began:

The focus of Monday's White House Asian carp summit is to stop the giant, ecosystem-ravaging fish from slipping in the Great Lakes' back door - the Chicago canal system that links the Great Lakes and the Gulf of Mexico.

But the governors who called for the summit don't just want to talk about carp; they want the Obama administration to tackle the larger issue of invasive species in the Great Lakes, which have become an ecological stew teeming with at least 185 foreign organisms.

And if that discussion is going to occur, it will be impossible for regional and national leaders to ignore what's going on at the lakes' front door - the St. Lawrence Seaway, a manmade navigation corridor between the Great Lakes and the Atlantic Ocean.

That's the invasive species pathway biologists say poses the most trouble for the Great Lakes, even if Chicago canals and Asian carp are grabbing all the attention at the moment.

Oceangoing ships dumping contaminated ballast water are blamed for 57 species invasions since Seaway builders blasted their way into the lakes 51 years ago.

Those species include the quagga mussel that now carpets the bottom of Lake Michigan and has literally turned life in the lake into a shell of what it once was - the population of prey fish, which sustain big fish like salmon, has dropped to less than 10% of what it was before invasive mussels arrived two decades ago.

And despite Obama's 2008 campaign pledge of a "zero tolerance" policy for new Great Lakes invasions and the billions of dollars he plans to spend on the lakes' restoration, the Seaway door to future invasions remains open. The federal government released a report last year that spotlighted 30 species that have yet to colonize the lakes but are medium- to high-risk candidates to do so.

Posted by Marcia Oddi on February 8, 2010 07:58 AM
Posted to Environment

Ind. Gov't. - Reader baffled by AG Zoeller's reported affirmance rate on criminal appeals [Updated]

In this entry from Jan. 29, 2010, the ILB linked to two press releases of Attorney General Greg Zoeller. announcing his first-year accomplishments and future plans. From the AG's list of accomplishments:

3. * * * Criminal Appeals: Representing the State in the Court of Appeals and Indiana Supreme Court, the Attorney General's Office has a 95.6 percent success rate in getting convictions or sentences affirmed on appeal, sparing crime victims (and taxpayers) the burdens of retrial. That's up from the 94 percent success rate the previous year. Zoeller met with county prosecutors on lower-court cases headed for appeal.

The ILB has received the following note from Joel Schumm, a Clinical Professor of Law at Indiana University School of Law -- Indianapolis, where he directs the Appellate Clinic and litigates several appeals each year.

Third on the Attorney General’s press release of “accomplishments” for 2009 was “Criminal Appeals: Representing the State in the Court of Appeals and Indiana Supreme Court, the Attorney General's Office has a 95.6 percent success rate in getting convictions or sentences affirmed on appeal, sparing crime victims (and taxpayers) the burdens of retrial. That's up from the 94 percent success rate the previous year.”

I find those numbers baffling, at best.

I follow criminal appeals closely, and the Court of Appeals’ annual reports routinely report about an 85-87% affirmance rate in both criminal and Post-Conviction Relief (PCR) appeals. The Indiana Supreme Court does not report similar numbers, but the Court issues only about forty opinions in criminal or PCR cases each year. Here’s how I do the math, relying on the Court of Appeals’ annual reports and a quick count of Indiana Supreme Court opinions:

2008

Court of Appeals
Criminal & PCR: 1467 affirmed (86.3%) / 213 reversed / 20 remanded.

Indiana Supreme Court
Criminal & PCR: 30 affirmed (68.2%)/ 14 reversed

­2008 Combined percentage: 85.8%

2009

Court of Appeals
Criminal & PCR: 1392 affirmed (86.3%)/ 207 reversed / 14 remanded

Indiana Supreme Court
Criminal & PCR: 26 affirmed (66.7%)/ 13 reversed

2009 Combined percentage: 85.8% affirmed

Prof. Schumm's note concludes: "How does the Attorney General come up with percentages nearly ten points higher?"

In response to an inquiry from the ILB, Bryan Corbin, spokesman for the AG, writes:

I am advised that the 95.6 percent figure for calendar-year 2009 includes all state appellate cases (including Indiana Supreme Court, not just Court of Appeals). The synopsis is that the search started with all opinions in criminal cases where the State of Indiana was a party and where Greg Zoeller's name appears as counsel, and then involved locating those with "affirmed" or "reversed" results within those results. (A "win" for the state is a reversal when we are the appellant.)

[Updated at 12:14 PM] Jon Laramore, who leads the appellate group at Baker & Daniels LLP, has sent this note:

It’s possible that the differences in reversal rates stem from how the counting is done. In a fair number of cases, something is reversed or vacated but something else is affirmed. For example, the conviction could be affirmed but the sentence vacated or changed. Or the conviction on one count could be affirmed and on another count reversed. Depending on how these are counted, quite different percentages could be calculated. The attorney general’s language you quote refers to “getting convictions or sentences affirmed” (emphasis added), and that may show something about how the counting was done.

Posted by Marcia Oddi on February 8, 2010 07:55 AM
Posted to Indiana Courts | Indiana Government

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

Here is the answer to "What did you miss from the ILB during the weekend?"

From Sunday, Feb. 7, 2010:

• Courts - "States Weigh Judicial Recusals: Some Judges, Businesses Oppose Restrictions on Cases Involving Campaign Contributors"
• Environment - Even more on "Crawford County residents question biomass power project"

From Saturday, Feb. 6, 2010:

• Ind. Law - "The government has your baby's DNA "
• Ind. Courts - Bills of interest to the judiciary that have passed one house
• Courts - "Michigan appellate panel says state sex offender registration law does not apply to homeless"
• Courts - More on "The Illinois Supreme Court on Thursday found unconstitutional a state law capping non-economic damages in medical-malpractice cases"

Posted by Marcia Oddi on February 8, 2010 07:36 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/8/10):

• None scheduled.

Next week's oral arguments before the Supreme Court (week of 2/15/10):

• None currently scheduled.

ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.

---

This week's oral arguments before the Court of Appeals (week of 2/8/10):

Tuesday, February 9th

• 11:00 AM - C.R., A Minor, (by her mother and natural Guardian, C.C. v. Clint Stone, et al. (43A03-0905-CR-233) - C.R., a minor, by her mother, C.C., filed a six-count amended complaint for damages against Clint Stone, as well as his employer Coffel Vending Company, Tippecanoe Valley School Corporation, and Tippecanoe Valley High School. Counts I and II therein alleged, respectively, that Stone had committed intentional infliction of emotional distress and invasion of privacy of intrusion. Stone moved to dismiss the entire amended complaint pursuant to Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief may be granted, which motion was granted with respect to Counts I and II. C.R. now challenges the trial court's grant of Stone's motion to dismiss Counts I and II of her amended complaint. The Scheduled Panel Members are: Judges Kirsch, Darden and May. [Where: Court of Appeals Courtroom (WEBCAST)]

Thursday, February 11th

• 2:30 PM - Hosey Whitmore v. State of Indiana (71A03-0911-CR-507) - Whether there was sufficient evidence to support Defendant's conviction for Felony Murder and whether the trial court imposed an inappropriate sentence given the nature of the crime. The Scheduled Panel Members are: Judges Darden, Bailey and Robb. [Where: Supreme Court Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 2/15/10):

Next Wednesday, February 17th

• 1:30 PM - Lees Inns of America v. William Lee Irrevocable Trust (40A01-0901-CV-47) - Whether or not the Court abused its discretion by failing to appoint a special master with valuation expertise in resolving highly technical disagreements? The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Robb. [Where: Court of Appeals Courtroom (WEBCAST)]

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

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

---

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

Posted by Marcia Oddi on February 8, 2010 07:28 AM
Posted to Upcoming Oral Arguments

Sunday, February 07, 2010

Courts - "States Weigh Judicial Recusals: Some Judges, Businesses Oppose Restrictions on Cases Involving Campaign Contributors"

The Jan. 26, 2010 WSJ has a story by Nathan Koppel that began:

More states are responding to a longstanding concern that elected judges risk the appearance of bias when they hear cases involving their campaign contributors. But recent examples from Wisconsin and Nevada show that some states are reluctant to force judges to disqualify themselves from cases solely because they have received large contributions.

The U.S. Supreme Court last year prompted states to tackle the issue of potential bias after it held in a case involving Justice Brent Benjamin of West Virginia that judges may need to recuse themselves when parties that have spent substantial sums to help elect the judges appear before them. The court, in a landmark opinion Thursday, eliminated limits on campaign spending by corporations.

About 10 states, including California and Texas, have proposed new judicial-disqualification rules in the wake of last year's Supreme Court ruling. But overhaul efforts have met resistance from judges and businesses who oppose restraints on judges' ability to raise campaign funds and on voters' rights to financially support favored candidates. Critics say an array of people would be less likely to donate to campaigns should these types of laws be put on the books.

"States are looking at recusal more seriously, but most are not yet creating more rigorous recusal practices," says Charles Geyh, a law professor at Indiana University who specializes in judicial-ethics issues.

The story concluded:

Last Thursday's landmark opinion [in Citizens United v. FEC] heightens the need for strict disqualification rules, says J. Adam Skaggs, an attorney with the Brennan Center for Justice at New York University School of Law, which is in favor of the public financing of judicial candidates. The ruling "will only exacerbate the trend of escalating, arms-race spending in judicial elections as corporations, unions and special interests seek to buy control of the bench," he says.

"If you are going to elect judges, you can't cut off their speech rights," counters Bradley Smith, chairman of the Center for Competitive Politics, which opposes campaign-spending limits. "The ability to raise money and get your message out is an element of speech."

Zach Lowe of The American Lawyer wrote Jan. 20, 2010 in an article titled "Sorting Out 'Caperton' in the Midwest." The article begins:

Wisconsin is about to join Michigan as the second state to sort out the thorny issue of recusal and judicial elections in the wake of the U.S. Supreme Court's decision in Caperton v. Massey last year, according to lawyers we spoke to on Tuesday and this piece in the Milwaukee Journal Sentinel.

And the two states are set to take very different strategies.

Indiana's appellate justices and judges are appointed, and are subject to a yes/no retention vote every 10 years. County judges, however, are for the most part, elected. The Indiana Code of Judicial Conduct, Rule 2.11, Disqualification, and Rule 4.4, Campaign Committees, particularly Comment #3, appear to be relevant.

Posted by Marcia Oddi on February 7, 2010 12:00 PM
Posted to Courts in general

Environment - Even more on "Crawford County residents question biomass power project"

Updating this Jan. 28th ILB entry, Grace Schneider of the Louisville Courier Journal attended another public meeting, this one in Scott County, and reported on it in this Feb. 4th story. Her earlier story was headed "Defining 'clean' wood is key for biomass power projects." This one is headed "Biomass plant foes pack Scott meeting: IDEM says permitlikely to be issued." Some quotes:

SCOTTSBURG, Ind. — Opponents of a proposed biomass energy plant in Scott County peppered environmental regulators with questions about the project at a public meeting this week — and sought to rally other residents to join the fight against it.
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Critics told the more than 400 people who turned out Wednesday night at Scottsburg High School that the best chance to derail the planned $100million wood-burning power plant was to pressure local political leaders who support the project, rather than expect help from the Indiana Department of Environmental Management.

During a meeting that lasted nearly six hours, representatives of the state agency conceded that despite concerns about the location of the plant on U.S. 31 near a school and other potential impacts on the community, IDEM has a narrowly defined role in examining technical details and ensuring the plans meet all state and federal requirements.

“I have yet to hear anything to suggest this permit could not be issued,” Matt Stuckey, chief of the agency's air permitting division, said at one point. * * *

No one representing Liberty Green Renewables LLC of Harrison County, the partnership seeking to build the plant and a similar facility near Milltown in Crawford County, spoke at the meeting.

It was set up to let residents question IDEM officials about the proposed permit that would outline emission limits and other aspects of the power station.

The facilities would burn wood to generate electricity to sell to utilities across the region.

Proposed permits for both plants would limit Liberty Green to 245 tons of nitrogen oxide emissions and 226 tons of carbon dioxide emissions a year — amounts that are below thresholds to qualify the operations as “major sources” of pollution and necessitate more extensive impact studies and pollution-control devices. * * *

Dennis Murnane drew applause when he asked Stuckey and two other IDEM officials what he might include in written comments to “get you to reject the permit.”

The men replied that it was unlikely his comments would persuade them to do that. * * *

The works board — composed of Mayor Bill Graham, Charles Rose and Ray Zollman — has been criticized by City Council member Terry Amick, who filed a lawsuit Wednesday claiming the board overstepped its authority by optioning city-owned property to Liberty Green without the council's approval.

Stuckey, however, said he doubted the litigation would affect IDEM's decision.

State regulations dictate that the agency deal with the permit regardless of other property or zoning aspects, he said.

Regulators acknowledged, meantime, that they're considering allowing Liberty Green to burn switch grass along with “clean” wood at the plant, pending an analysis of emissions data for switch grass.

Stuckey also said IDEM is reviewing new information submitted by the company about the height of the plant's smokestack.

The Bloomington Alternative has a long story by Linda Greene, dated Feb. 7th, and headed "Citizens fight biomass incinerator in Crawford County."

Posted by Marcia Oddi on February 7, 2010 11:47 AM
Posted to Environment

Saturday, February 06, 2010

Ind. Law - "The government has your baby's DNA "

That is the supermarket tabloid-type headline to this Feb. 4, 2010 CNN story by Elizabeth Cohen. Here are some quotes:

Newborn babies in the United States are routinely screened for a panel of genetic diseases. Since the testing is mandated by the government, it's often done without the parents' consent, according to Brad Therrell, director of the National Newborn Screening & Genetics Resource Center.

In many states, such as Florida, where Isabel was born, babies' DNA is stored indefinitely, according to the resource center.

Many parents don't realize their baby's DNA is being stored in a government lab, but sometimes when they find out, as the Browns did, they take action. Parents in Texas, and Minnesota have filed lawsuits, and these parents' concerns are sparking a new debate about whether it's appropriate for a baby's genetic blueprint to be in the government's possession.

"We were appalled when we found out," says Brown, who's a registered nurse. "Why do they need to store my baby's DNA indefinitely? Something on there could affect her ability to get a job later on, or get health insurance."

According to the state of Minnesota's Web site, samples are kept so that tests can be repeated, if necessary, and in case the DNA is ever need to help parents identify a missing or deceased child. The samples are also used for medical research. * * *

Genetic testing for newborns started in the 1960s with testing for diseases and conditions that, if undetected, could kill a child or cause severe problems, such as mental retardation. Since then, the screening has helped save countless newborns.

Over the years, many other tests were added to the list. Now, states mandate that newborns be tested for anywhere between 28 and 54 different conditions, and the DNA samples are stored in state labs for anywhere from three months to indefinitely, depending on the state. (To find out how long your baby's DNA is stored, see this state-by-state list.)

According to the 2009 list, Indiana samples are kept for 23 years.

Without more information as to how and why they are kept, it is hard to know whether retention of these samples should be a matter of concern in Indiana. The Indiana law involved is IC 16-41-17, "Prevention and Treatment Programs: Examination of Infants for Phenylketonuria, Hypothyroidism, and Other Disorders."

Posted by Marcia Oddi on February 6, 2010 11:09 AM
Posted to Indiana Law

Ind. Courts - Bills of interest to the judiciary that have passed one house

The Legislative Update blog, publishing weekly during the legislative session by the Indiana Judicial Center, has posted this Mid-Session Review.

Posted by Marcia Oddi on February 6, 2010 10:10 AM
Posted to Indiana Courts

Courts - "Michigan appellate panel says state sex offender registration law does not apply to homeless"

See this Feb. 5, 2010 entry from the Sentencing Law and Policy Blog.

Posted by Marcia Oddi on February 6, 2010 09:55 AM
Posted to Courts in general

Courts - More on "The Illinois Supreme Court on Thursday found unconstitutional a state law capping non-economic damages in medical-malpractice cases"

Updating this ILB entry from Feb. 4, 2010, here is the NYT report on the decision.

Here is the WSJ's opinion of the decision, that begins:

If you're flying to Chicago soon, see if you can count the plaintiffs lawyers on the plane. They'll be wearing the Italian suits. This week the Illinois Supreme Court torpedoed the state's medical malpractice law, condemning state doctors to liability lotto.

Posted by Marcia Oddi on February 6, 2010 09:34 AM
Posted to Courts in general

Friday, February 05, 2010

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

For publication opinions today (0):

NFP civil opinions today (1):

Robert A. Harper v. Lisa J. Harper (NFP) - "Father seizes upon the above-emphasized language in a futile attempt to blame the trial court for his inability to have his visitation privileges reinstated. The record reveals that reinstatement of prison visits with Father -- a convicted murderer with a history of anger control problems; physical violence, emotional abuse, and manipulation; and drug and alcohol addiction -- was determined by A.A.'s child psychologist and GAL not to be in A.A.'s best interests, and specifically, to pose a significant threat to A.A.'s physical safety and emotional well-being. Inasmuch as Father is attempting to blame others for his present inability to visit with A.A., we are not moved and reject his self-serving attempt to shift responsibility to the trial court from his own shoulders where it squarely belongs. We find no error."

NFP criminal opinions today (3):

Rodney Eugene Perry v. State of Indiana (NFP)

Mark Erler v. State of Indiana (NFP)

Kenneth Collins v. State of Indiana (NFP)

Posted by Marcia Oddi on February 5, 2010 10:53 AM
Posted to Ind. App.Ct. Decisions

Law - Dawn Johnsen vote in Senate Committee "delayed"

As noted here yesterday and here Feb. 1st, the Senate Judiciary Committee was scheduled yesterday to vote on the re-nomination of Dawn Johnsen. However, it was not to be.

The Judiciary Committee "ran out of time", but, as reported here at Firedoglake, in a footnote: "Chairman Leahy is committed to Johnsen’s nomination, and immediately noticed another Committee business meeting for next Thursday, in which Dawn Johnsen is listed as the first order of business."

Posted by Marcia Oddi on February 5, 2010 10:43 AM
Posted to General Law Related

Courts - "Do 3rd Circuit Rulings Over Student Speech on MySpace Pages Contradict?"

An interesting article today by Shannon P. Duffy of The Legal Intelligencer begins:

Lawyers were scratching their heads on Thursday over a federal appellate court's seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school's power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District.

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 in holding that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

For lawyers watching the cases, it became clear during oral arguments in December 2008 and June 2009 that the two panels weren't likely to agree. Since federal appellate courts cannot issue conflicting opinions, court watchers predicted that the entire court might be forced to rehear both cases before an en banc court.

Since Layshock was argued six months before Blue Mountain, some lawyers predicted that Layshock would be handed down first and its ruling would bind the panel in Blue Mountain.

But now the court has confounded the prognosticators by handing down a pair of decisions on the same day that reached opposite results.

Posted by Marcia Oddi on February 5, 2010 10:28 AM
Posted to Courts in general

Ind. Law - "Senate bill seeks to clarify meth law"

The ILB has been following two issues related to methamphetamine in Indiana.

1. Policing purchases of over-the-counter cold medicines to make methamphetamine. See, for example, this Jan. 2, 2010 ILB entry.

2. Cleaning up after meth. See, for example, this ILB entry from Oct. 29, 2009, and this comprehensive one from July 14, 2009, headed "Illnesses Afflict Homes With a Criminal Past - meth contamination."

Kevin Allen of the South Bend Tribune reported yesterday on legislation that would address the first issue, in a story headed "Indiana Senate bill seeks to clarify meth law: Stores would have to inform customers when buying cold medicines." The bill, SB 285, has passed the Senate. A quote:

The bill will not require people to have a prescription to buy medicines containing ephedrine or pseudoephedrine, but retailers will be able to refuse selling those products to people who have already bought their limit for a given period of time.

In the current system, people can buy more than the limit but will be arrested later. That has led to instances where people unknowingly bought an illegal amount of the decongestants and were arrested, even though they had no plans to make methamphetamine.

One high-profile incident involved a Parke County grandmother who was arrested in July, four months after buying a box of Zyrtec-D for her husband and a box of Mucinex-D for her daughter in the same week.

What of the second issue - dealing with the hazardous residue of meth labs? The ILB is not aware of any legislation even introduced this year to address this problem about which so much has been written in state and national publications.

Posted by Marcia Oddi on February 5, 2010 09:50 AM
Posted to Indiana Law

Ind. Courts - Mayor (East Chicago) hires former mayor (Gary) for defense

Andy Grimm reports today in the Gary Post Tribune:

Former Gary mayor Scott L. King, who once worked as a federal prosecutor, will join Fredrick Work at the defense table for George Pabey.

It's the second time in little over a year King has counseled a mayor facing criminal charges. He also defended Dozier Allen, who served as Gary mayor for two months after King resigned the post 2006, against public corruption charges last year.

King is one of the region's top criminal defense attorneys, and he also can sympathize with his client. Federal agents for years besieged Gary City Hall while investigating King's one-time campaign manager, Jewell Harris.

King was scornful of the apparently wide-ranging scope of the federal investigation, which included the indictment and subsequent dismissal of charges against his deputy mayor and several other top administration officials.

King split with Harris shortly after the first subpoenas arrived in Gary. Trucking company owner Harris eventually was charged and convicted for double-billing the city for hauling work done for the downtown Gary baseball stadium.

Posted by Marcia Oddi on February 5, 2010 09:42 AM
Posted to Indiana Courts

Environment - More on Asian Carp suit; Wood-fired outdoor boilers

Michigan AG: "Close canal to stop carp: DNA data was kept from U.S. Supreme Court," heads this story today in the Detroit Free Press, reported by Tina Lam. It begins:

Michigan Attorney General Mike Cox filed a renewed request for an immediate injunction Thursday with the U.S. Supreme Court, asking the justices to close locks on the Chicago shipping canal leading to Lake Michigan.

Cox's filing said the request for an injunction was based on new information that was not available to the court when it denied an injunction on Jan. 19.

Cox said the new information was an economic study showing the lock closure would not cause serious economic harm and the fact that federal officials knew days before the court's ruling that there was DNA evidence of Asian carp in Lake Michigan, but failed to tell the court.

The U.S. Army Corps of Engineers got the DNA data on Jan. 15, but didn't make it public until hours after the Supreme Court's rejection of the injunction.

"Oppose pollution-emitting outdoor wood-fired boilers" urges this letter published in the Feb. 3, 2010 Fort Wayne Journal Gazette. The letter supplements this ILB entry from Jan. 7, 2010, headed "Rules proposed again to regulate outdoor wood-fired boilers."

Posted by Marcia Oddi on February 5, 2010 09:31 AM
Posted to Environment

Ind. Courts - "Superior Court to survey Warrick Co. residents about Camm"

Matt Thacker reported yesterday in the Jeffersonville News & Tribune:

Surveys will be mailed to 200 randomly selected Warrick County residents to determine how much people in the county know about the David Camm case.

Floyd County Prosecutor Keith Henderson has argued that Camm’s third trial should be held in Warrick County, which is the county that has jurisdiction since the second trial was held there.

Camm’s attorneys filed a petition to change venue to Northern Indiana due to media exposure throughout the southern half of the state.

A court clerk said Superior Court No. 2 Judge Robert Aylsworth wants to determine whether a fair jury can be selected in Warrick County. She said the surveys will likely be mailed within the next couple of weeks.

After parties were unable to agree on a venue, the defense and prosecution were asked to submit proposed survey questions, according to the chronological case summary. The court will review the questions and send them to counsel. Seven days will be allowed for further comment before the surveys are mailed.

Posted by Marcia Oddi on February 5, 2010 08:46 AM
Posted to Indiana Courts

Law - "Take the Money and Run:The crazy perversities of civil asset forfeiture"

Supplementing this ILB entry from Feb. 1, 2010, and recalling the many ILB entries on the controversy surrounding the Delaware County prosecutor's use of the process in drug cases, Radley Balko of Slate has a long article dated Feb. 4, 2010, focusing on Indiana. It begins:

Last month, the Supreme Court tossed out the case Alvarez v. Smith, a challenge to a portion of the asset forfeiture in Illinois that allows the government to keep seized property for up to six months before giving its owner a day in court. The Court declined to rule on the case after determining it to be moot—all of the parties had settled with the government by the time the case made it to Washington.

That's too bad, because the Illinois law should be struck down, and also because the country could benefit from a discussion about the continuing injustice of many states' civil asset forfeiture laws.

Civil asset forfeiture, an outgrowith of the drug war, rests on the legal theory that property can be guilty of a crime. Once authorities establish a nexus between a piece of property and criminal activity—most commonly drug cases, but also prostitution, DWI, and white collar crime—the owner must prove his innocence or lose his property, even if he's never charged with an underlying crime. In most jurisdictions, seized cash and the proceeds from the auctioned property go back to the police departments and prosecutors' offices responsible for the seizure. The scheme, which creates unsavory incentives for public officials, became popular because of a 1984 federal bill designed to encourage aggressive enforcement.

After a number of outrageous forfeiture cases made national headlines, Congress reformed federal civil forfeiture law in 2000. But egregious abuses are still common at the state level. The Indiana case of Anthony Smelley illustrates just how perverse forfeiture proceedings can get.

Posted by Marcia Oddi on February 5, 2010 08:35 AM
Posted to General Law Related

Thursday, February 04, 2010

Courts - "The Illinois Supreme Court on Thursday found unconstitutional a state law capping non-economic damages in medical-malpractice cases"

So reports the WSJ Law Blog this afternoon.

Here is the Chicago Tribune coverage by Bruce Japsen, It begins:

The Illinois Supreme Court struck down the state's medical malpractice law today, saying it violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts.

The much-anticipated ruling, which challenged the constitutionality of damage caps for doctors and hospitals, is being watched closely by the health care industry and employers that see caps on damages as a way to tame rising health care costs.

The ruling could figure in the national health care debate of stalled health care legislation. In the U.S. Senate where Republicans have opposed existing health care reform legislation, the GOP has been vocal about the need for tort reform and caps on damages.

State lawmakers in 2005 passed legislation, which was signed into law by then-Gov. Rod Blagojevich, that established caps on noneconomic damages of $500,000 in cases against doctors and $1 million against hospitals. Illinois followed other states, such as California, that capped damages years ago.

But Justices writing said they were not persuaded by arguments used in other states. "That ‘everybody is doing it," is hardly a litmus test for the constitutionality of the statute," Justices writing for the majority opinion said.

Further, Justices said that what the statute allows for amounts to a "legislative remittur." Chief Justice Thomas Fitzgerald delivered the judgment for the seven-member court and was joined in the opinion by Justices Charles Freeman, Thomas Kilbride and Anne Burke. Justice Robert Thomas took no part in the decision, the ruling said.

Here is the 52-page opinion, Lebron v. Gottlieb Memorial Hospital.

Posted by Marcia Oddi on February 4, 2010 05:40 PM
Posted to Courts in general

Ind. Decisions - One Indiana decision today from 7th Circuit

In Olson v. Brown (ND Ind., Sharp), a 14-page opinion, Judge Flaum writes:

A putative class of plaintiffs, represented by Mark Olson, filed a complaint against the Sheriff of Tippecanoe County, Tracy Brown, alleging several First Amendment violations and violations of Indiana law in the Tippecanoe County Jail. Olson filed for class certification at the same time he filed the complaint. Shortly after Olson filed the complaint and motion for class certification, the Indiana Department of Correction transferred him out of Tippecanoe County Jail. Because the transfer took place before class certification, the district court dismissed the suit as moot. Olson appeals the dismissal on the ground that this case is inherently transitory for any possible named plaintiff and therefore falls within the exception to the mootness doctrine announced in Gerstein v. Pugh, 420 U.S. 103 (1975). We find that this case fits within the exception to the mootness doctrine carved out for inherently transitory cases and therefore we reverse the district court’s dismissal.

Posted by Marcia Oddi on February 4, 2010 01:57 PM
Posted to Ind. (7th Cir.) Decisions

Law - "Wall Street Journal, N.Y. Times Face Off Over Dawn Johnsen Nomination"

Ryan J. Reilly has a report today in Main Justice, complete with quotes from the dueling editorials, that begins:

Ahead of today’s scheduled Senate Judiciary Committee vote on Dawn Johnsen, President Obama’s nominee to be the Justice Department’s Office of Legal Counsel, opposing editorials ran this morning in the two of the nation’s top newspapers.

The New York Times wrote that Johnsen, who has been awaiting a vote for more than a year, should be confirmed swiftly. The Wall Street Journal, however, said that “at this point it would serve the best interests of all parties to cut Ms. Johnsen loose.”

Posted by Marcia Oddi on February 4, 2010 12:17 PM
Posted to General Law Related

Ind. Decisions - Still continuing with: Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray

For background, start with this ILB entry from Jan. 26, 2010.

Jeff Wiehe of the Fort Wayne Journal Gazette has an important report today on how Wallace is being interpreted. Wiehe also co-authored this story from Jan. 8, 2010. I was going to highlight passages from today's story, but it turns out I would need to highlight nearly every line:

Indiana Attorney General Greg Zoeller has taken an official stance on a state Supreme Court ruling that threw the sex- and violent-offender registry into disarray.

But a spokesman for Zoeller said accuracy problems with the current registry won’t be fixed overnight.

“We don’t have an immediate fix, but we want to clean up the registry,” said Bryan Corbin, spokesman for the attorney general.

At issue is the state Supreme Court’s ruling last year that Richard P. Wallace, convicted of child molesting in 1989, no longer had to register as a sex offender because the crime was committed before the law that created the registry was enacted in 1994.

In the aftermath, some sheriff’s departments – including Allen County’s – took the ruling to mean anyone who committed a crime before the registry existed should come off the list. Those departments began scrubbing names from local registries.

But officials with the Indiana Department of Correction, keepers of the official statewide registry, interpreted it as applying only to Wallace.

Anyone who wants to be removed from the registry must appear before a judge and obtain a court order, according to the department.

As a result, some local registries of sex offenders began to conflict with the statewide registry.

The Attorney General’s Office counseled the Department of Correction to interpret the ruling as applying only to Wallace, a spokesman for the Department of Correction told The Journal Gazette last month.

The situation changed recently with a recent court filing in Hendricks County.

In that filing – part of one man’s lawsuit against the Department of Correction – Deputy Attorney General Scott L. Barnhart wrote that the Wallace ruling does indeed apply to everyone in Indiana who committed a sex crime before 1994.

The Supreme Court’s decision effectively changed Indiana law, Barnhart wrote.

It’s still up to offenders to obtain a court order from a local judge to be removed from the state’s list, according to Corbin.

The Department of Correction will not remove a name without one.

There are about 9,700 people on the state’s sex- and violent-offender registry, with about 2,000 possibly affected by the Supreme Court ruling, according to court records.

The attorney general is reviewing the Supreme Court decision and vows to assist sheriffs and the Department of Correction in dealing with the changes in the law, Corbin said.

Offenders must still obtain the requisite court order to come off the list because of various nuances associated with each case, Corbin said.

“Everything is going to have to be on a case-by-case basis,” Corbin said.

Judges in Allen County have been inundated with such requests. Some offenders have sent in simple handwritten letters explaining their situation and have received a court order without hiring a lawyer or legal counsel.

Unlike the Department of Correction, the Allen County Sheriff’s Department began scrubbing names from its local offender registry shortly after the Wallace decision was issued.

Detective Jeff Shimkus, of the sheriff’s department’s Sex Offender and Registration Notification team, reviewed more than 600 files and took more than 200 names off the list without court orders or requests from sex offenders.

Some sex offenders who shouldn’t be on the list don’t know about the ruling, Shimkus said. His team saw one come in for his regularly scheduled photo only to be told he no longer had to register.

“The problem you have is, from the public’s standpoint, is the accuracy of the registry,” Shimkus said. “The public is supposed to look at the Web site and know that it’s right.”

Some Allen County offenders who have come off the local registry because of the Supreme Court ruling are still on the state registry. Now, though, they are listed on the state registry as “failed to register” because they no longer have to come in to register with the sheriff’s department.

The sheriff’s department sends all registry information from the county to the Department of Correction. Because these offenders are still on the state registry but no longer have to register with the sheriff, it appears they are failing to register.

For the past few months, Shimkus has been bombarded with phone calls from people who claimed to know where these “failed to register” offenders were, and he explains that those offenders are no longer required to be on the list.

More importantly, though, he said the registry as a public safety tool is suffering from the problems with accuracy.

“There’s a ton of dangerous people out there, and this is a tool, not a magic catch-all,” Shimkus said. “Parents still need to be parents.”

Posted by Marcia Oddi on February 4, 2010 12:00 PM
Posted to Ind. Sup.Ct. Decisions

Law - "Is it ethical to have a ghostblogger secretly write your law blog?"

"Ghostbusters of the Blawgosphere Take Aim at 'Ghostblogging'" is the heading of this entry on Legal Blog Watch. The example given is an estate planning blog, where a writer offers:

* * * a steady stream of content for your estate planning blog, created by an experienced writer and estate planning paralegal. Your content can be a mix of syndicated or original posts, with new material appearing on your blog several times a week.

I have seen this here in other law specialties, blogs written in the voice of the lawyer, but in fact totally ghosted by PR professionals.

Posted by Marcia Oddi on February 4, 2010 11:31 AM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Darryl D. Hopkins v. State of Indiana (NFP)

James Carr v. State of Indiana (NFP)

Cynthia Aguirre v. Steven C. Paschall (NFP)

Posted by Marcia Oddi on February 4, 2010 11:26 AM
Posted to Ind. App.Ct. Decisions

Wednesday, February 03, 2010

Ind. Courts - Indy traffic court bill passes Senate, goes to House

So reports Jon Murray of the Indianapolis Star in his blog, Justice Watch. He notes:

Marion County traffic court Judge Bill Young -- whose large fines for some violators are the bill's main target -- has voiced some weighty objections to the bill, but that doesn't appear to have slowed it down.

See more about SB 399 in this ILB entry from Dec. 25, 2009, and its links.

Posted by Marcia Oddi on February 3, 2010 12:43 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (3):

In Phillip Yoder, et al. v. Colonial National Mortgage, et al. , an 8-page opinion, Judge Friedlander writes:

Boyd Gohl appeals from the trial court's denial of his Ind. Trial Rule 60(B)(6) motion to set aside a default judgment entered against him in a foreclosure action instituted by Colonial National Mortgage, a Division of Colonial Savings, F.A. (Colonial). Gohl presents one issue for our review: did the trial court err in finding that he was not entitled to relief pursuant to T.R. 60(B)(6) because he was properly served with notice such that the court had personal jurisdiction over him? We reverse and remand. * * *

After learning that service could not be had on Gohl at the Jeffersonville (Clark County) address, Colonial made no further attempt to locate Gohl, who had lived at the same address in LaGrange County his entire life (except for time spent away at college). Colonial's cursory attempt to locate Gohl does not constitute a diligent search.

Further, as it pertained to effecting service of process by publication as against Gohl, Colonial wholly failed to comply with T.R. 4.13. Having considered all of the circumstances and given our finding that Colonial acted with less than due diligence, we find that service of process by publication as against Gohl was unreasonable. See Goodson v. Carlson, 888 N.E.2d 217 (Ind. Ct. App. 2008). We therefore conclude that the trial court abused its discretion in finding that it had personal jurisdiction over Gohl when it rendered the default judgment against him. Being without personal jurisdiction, the default judgment is void. We reverse and remand with instructions for the trial court to grant Gohl's motion to set aside the default judgment.

In Marilyn Elliott and Michael Elliott v. JPMorgan Chase Bank, et al. , a 10-page opinion, Chief Judge Baker writes:

The Kafkaesque character of this litigation is difficult to deny. Having failed to receive a summons that may have been improperly served upon them, Marilyn and Michael Elliott learned that a default judgment had been entered against them, foreclosing on their home because of a mortgage that was allegedly in default. The home was sold in a sheriff's sale to the lending bank. Feeling confused and suspicious, they turned to the Indiana Attorney General, who directed them to file a complaint with the Comptroller of the Currency. The Comptroller's investigation revealed that Chase Bank, the ostensible plaintiff herein, is entirely unaware of the foreclosure proceeding. Moreover, Chase's records show that the mortgage was paid in full in 2001. Chase, therefore, executed and recorded a satisfaction of mortgage. Notwithstanding the satisfaction of mortgage, Chase's loan servicer—Ocwen Bank—continued to prosecute this action in Chase's name, attempting to force the Elliotts out of their home even though there has never been a trial and the lending bank has declared that the mortgage was paid in full. Finding this situation untenable, we reverse and remand for trial. [Emphasis by ILB]

In Troy Blasko v. State of Indiana, a 5-page opinion, Chief Judge Baker writes:

Appellant-defendant Troy Blasko appeals his conviction for Sexual Misconduct with a Minor, a class B felony. Specifically, Blasko argues that his conviction must be vacated because he was not brought to trial within one year after his arrest for the offense. As a result, Blasko claims that he should have been discharged pursuant to Indiana Criminal Rule 4(C). Concluding that the trial court properly denied Blasko’s motion to dismiss, we affirm. * * *

Unlike the circumstances in Greengrass, there is no evidence that the State refused to extradite Blasko. In fact, the State authorized the extradition and commenced proceedings to transport Blasko back to St. Joseph County in November 2003, following the Florida arrest. There was no refusal or inaction on the State’s part with regard to the extradition, and there is no showing that the State ever canceled the extradition order. Rather, the evidence shows that it was Blasko’s illness that prevented his transport to Indiana for prosecution by November 17, 2003. Blasko knew that he was facing criminal charges in Indiana and did nothing to make himself available for extradition until May 2005, when he was rearrested. Although we acknowledge that Blasko was not at “fault” for his inability to be transported in light of his illness, we decline to attribute such a delay to the State in accordance with Criminal Rule 4(C). Thus, we conclude that the trial court properly denied Blasko’s motion to dismiss.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Keayon K. Scott v. State of Indiana (NFP)

April Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on February 3, 2010 10:47 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana opinion today from 7th Circuit

In U.S. v. Risner (ND Ind., Miller), a 7-page opinion, Judge Kanne writes:

After Kevin Risner choked and threatened to kill his girlfriend, she called 911. After an officer arrived she told him that Risner was drunk, armed, and hiding in the basement crawl space of their shared home. Police entered the home and arrested Risner without a warrant. Police reentered the home to take the girlfriend’s statement, and eventually removed several guns from the home at her request. The girlfriend never expressly consented to either of the police entries into her home. Nevertheless, the district court denied Risner’s motion to suppress, finding that the girlfriend had impliedly consented to both entries. We affirm.

Posted by Marcia Oddi on February 3, 2010 09:58 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Floyd County caseload bill moves to House

From a press release:

INDIANAPOLIS –Legislation authored by State Senator Connie Sipes (D-New Albany) that would redistribute the Floyd County Circuit Court’s caseload for better court efficiency was approved by a unanimous vote in the Senate.

Senate Bill 307 provides that in Floyd County, the Circuit Court have exclusive jurisdiction over probate and trust matters. The bill also states that the Floyd Circuit Court and Floyd Superior Court No. 3 have concurrent juvenile jurisdiction.

The bill permits juvenile cases, which comprise 22 percent of the Circuit Court’s workload, to be shared between the two courts.

“This will allow for greater efficiency in the alignment of our courts,” said Sipes.

The bill will now go to the House of Representatives for further consideration.

Posted by Marcia Oddi on February 3, 2010 09:50 AM
Posted to Indiana Courts

Ind. Courts - "Simon heir aims to oust widow as sole trustee: In filing, daughter asks that bank take control of billionaire's assets" [Updated]

Updating this ILB entry from Jan. 28, 2010, Jeff Swiatek reports today in the Indianapolis Star that begins:

A Hamilton County judge has been asked to oust Bren Simon as sole trustee of her late husband's $1 billion-plus estate.

Deborah Simon filed the request Monday to put a bank in charge of overseeing the trust controlling Melvin Simon's massive holdings.
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Deborah Simon's seven-page petition says keeping Bren Simon as trustee "would be detrimental to all beneficiaries" of the estate because of the "distrust and animosity" between them.

Chief beneficiaries of the estate are Deborah Simon, her sister Cynthia Simon Skjodt and brother David Simon, who is chairman and chief executive of Simon Property Group, the Indianapolis shopping mall developer co-founded by Melvin Simon.

Hostility between the trustee and beneficiaries in an estate plan "clearly can be a basis for a court's decision to remove the trustee," the petition says.

It said a national bank or investment bank "would be best suited to manage the trust."

The petition cites Bren Simon's recent request to convert 6.5 million partnership units in the publicly traded Simon Property Group to stock or cash as an example of why a professional trust manager is needed.

"In one precipitous move, Bren Simon tendered for potential sale nearly $500 million in trust assets," said the petition, noting the move "cannot conceivably be viewed as consistent with the duties of a prudent fiduciary to preserve the value of the trust's assets for all beneficiaries."

An attorney in Minneapolis for Bren Simon, Michael V. Ciresi, said she would reply to the request to remove her as trustee in a formal response that likely will be filed in court later this week. Superior Court Judge William J. Hughes probably will hold a hearing in court on the request before making a decision, Ciresi said.

The request comes in a lawsuit by Deborah Simon alone, filed last month against Bren Simon, alleging she imposed on Melvin Simon to sign a new will last year while he was in a "weakened and susceptible state of mind" seven months before his death.

[Updated 2/6/10] From the Indianapolis Star, a brief story that begins:

Noblesville -- Bren Simon has asked a court to reject an appeal by a stepdaughter to remove her as trustee of her late husband's $1 billion-plus estate.

In a nine-page filing in Hamilton Superior Court on Friday, the widow of Melvin Simon said dissension with her stepchildren isn't a good enough reason to replace her as trustee.
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"Hostility does not itself justify removal of a trustee, especially here where the trustee was named by her late husband," the response by Simon said.

Posted by Marcia Oddi on February 3, 2010 09:25 AM
Posted to Indiana Courts

Ind. Law - More on: Who voted for and against the "defense of marriage" constitutional amendment?

Updating this ILB entry from Jan. 31st, the ILB has just this morning obtained a copy of the Roll Call for SJR 13, which I have posted here.

As of this morning, the Roll Call is still not available online.

Posted by Marcia Oddi on February 3, 2010 09:08 AM
Posted to Indiana Law

Courts - Prop. 8 trial, banned from broadcast, re-enacted

The SCOTUS prohibited a California federal district court from broadcasting the "Prop. 8" trial. See a number of earlier ILB entries here. Here are the details from Jan. 13th, 2010.

The trial continued without cameras, testimony concluded, and closing arguments are expected next month. Meanwhile, Bob Egelko of the San Francisco Chronicle reported yesterday in a story that begins:

The U.S. Supreme Court's camera blackout of the trial over same-sex marriage in California didn't faze two Los Angeles filmmakers, who - with the help of transcripts, bloggers and a corps of professional actors - have launched its re-enactment on YouTube.

"We want all Americans to have a chance to judge for themselves, based on the evidence that was presented," John Ireland said Monday after the first of 12 scheduled "episodes," each covering a day of the trial, made its Internet debut.

The cast includes such Hollywood talents as Tess Harper and Adrienne Barbeau.

Testimony in the trial ended Wednesday in San Francisco before Chief U.S. District Judge Vaughn Walker, who is expected to hear closing arguments next month. At stake is the constitutionality of Proposition 8, the November 2008 initiative that defined marriage as the union of a man and a woman.

The Supreme Court intervened Jan. 11 to block Walker's plan to have the trial telecast to other courthouses and have testimony uploaded to YouTube, both of which would have been unprecedented for a federal case in California. In a 5-4 ruling two days later, the court said the telecast might subject pro-Prop. 8 witnesses to harassment and intimidation.

"We were poised ... getting ready to watch it," when the court ruled, said Ireland's filmmaking colleague, John Ainsworth, who married his partner at San Francisco City Hall before Prop. 8 passed. "It frustrated me. Who were they to say that I can't watch this, especially when it's in a public courtroom?"

With no money to pay anyone, they put out a casting call to the Screen Actors Guild and got an enthusiastic turnout for the more than 40 available roles, Ireland said.

The No on 8 side relayed official trial transcripts, bloggers and a professor in the courtroom described the witnesses and the atmosphere, and David Cruz, a University of Southern California law professor, provided legal guidance.

Although both filmmakers opposed Prop. 8, they took pains to cast attractive performers on both sides, Ireland said. Their goal, he said, was "transparency, not swaying anybody.

Watch the re-enacted trial here.

The WSJ Law Blog has coverage here, headed "Prop. 8 Trial Caught On Tape (Sort Of)." So does the Law Librarian Blog, in an entry headed "Recreating a Trial Online: We Have the Technology."

Posted by Marcia Oddi on February 3, 2010 08:33 AM
Posted to Courts in general

Court - Federal Judicial Conference develops juror instructions re electronic devices

Michael Cooney, an online news editor with Network World, writes today:

If you think you're going to use your spanking new iPhone to entertain yourself next time you're on jury duty, think again. Judges are going to take an even dimmer view of jury member use of Blackberry, iPhone or other electronic devices as a judicial policy-setting group has told district judges they should restrict jurors from using electronic technologies to research or communicate.

The Judicial Conference Committee on Court Administration and Case Management for the United States District Courts said it developed instructions that would be issued by judges, "to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases. Such use has resulted in mistrials, exclusion of jurors, and imposition of fines. The suggested instructions specifically inform jurors that they are prohibited from using these technologies in the courtroom, in deliberations, or outside the courthouse to communicate about or research cases on which they currently serve, the group stated.

Specifically, those instruction spell out that jurors should not you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information either before the trial, during deliberations or after until the judge instructs otherwise.

The instructions state jurors must not use cell phones, e-mail, Blackberry, iPhone, text messaging, or on Twitter, or communicate through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn, and YouTube.

"The Committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices," the group stated.

Here is the official memorandum itself, complete with attachment headed "Proposed Model Jury Instructions The Use of Electronic Technology to Conduct Research on or Communicate about a Case." The memorandum begins:

At its December 2009 meeting, the Judicial Conference Committee on Court Administration and Case Management (CACM) endorsed a set of suggested jury instructions that district judges should consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve. The suggested instructions are included as Attachment 1.

The CACM Committee developed these instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases. Such use has resulted in mistrials, exclusion of jurors, and imposition of fines. The suggested instructions specifically inform jurors that they are prohibited from using these technologies in the courtroom, in deliberations, or outside the courthouse to communicate about or research cases on which they currently serve.

Posted by Marcia Oddi on February 3, 2010 08:02 AM
Posted to Courts in general

Law - Thomson Reuters Buys Super Lawyers

From a news release:

EAGAN, Minn., USA, Feb. 2, 2010 – Thomson Reuters, the world’s leading source of intelligent information for businesses and professionals, announced today that it has acquired Super Lawyers, the leading attorney ratings system for consumers, from Key Professional Media, based in Minneapolis, Minn. Terms of the deal were not disclosed.

Posted by Marcia Oddi on February 3, 2010 07:56 AM
Posted to General Law Related

Tuesday, February 02, 2010

Ind. Law - "Senate OKs bill on gun permit secrets"

Mary Beth Schneider of the Indianapolis Star is reporting this afternoon:

Gun permit information would be secret under a bill that passed the Indiana Senate today, 45-5.

Senate Bill 195, authored by Sen. Greg Walker, R-Columbus, now goes to the Indiana House, which earlier passed similar legislation.

The bill was aimed at newspapers, including The Indianapolis Star, which has published a database based on gun permit information. The newspapers have not published the names or addresses of those holding the permits, but instead showed readers the number of permits in a geographic area, including by ZIP code.

The Star used the information to study the gun permit process, finding numerous cases where people with violent backgrounds were given permits to carry a concealed weapon, often over the objections of local police.

For background see this ILB entry from Jan. 28th.

Posted by Marcia Oddi on February 2, 2010 03:14 PM
Posted to Indiana Law

Ind. Law - Bill to significantly expand authority of Attorney General up for passage today in the Senate [Updated]

The bill is SB 394 and it is up for first-house passage today, if it has not already passed.

SECTION 2 adds a new article to Indiana Code Title 34 - Civil Law and Procedure.

The NEW article would be IC 34-33.1, and would be headed "Authority of the Attorney General." Here is the proposed Chapter 1, to be added by SB 394:

Chapter 1. Authority of the Attorney General to Intervene in Cases Challenging the Constitutionality of a Statute, Ordinance, or Franchise.

Sec. 1. (a) If the constitutionality of a state statute, ordinance, or franchise affecting the public interest is called into question in an action, suit, or proceeding in any court to which any agency, officer, or employee of the state is not a party, the court shall certify this fact to the attorney general and shall permit the attorney general to intervene on behalf of the state and present:

(1) evidence that relates to the question of constitutionality, if the evidence is otherwise admissible; and
(2) arguments on the question of constitutionality.

(b) If a party to an action bases its claim or defense on:

(1) a statute or executive order administered by a state officer or agency; or
(2) a rule, order, requirement, or agreement issued or made under the statute or executive order;

the attorney general shall be permitted to intervene in the action.

Sec. 2. The state, by the attorney general, may file an amicus curiae brief in any matter pending in any state court without the consent of the parties or leave of the court. The attorney general shall file the amicus curiae brief within the time allowed for the party with whom the state is substantively aligned to file the party's brief or petition. However, for good cause shown, a court may permit the attorney general to file a belated amicus curiae brief. If the court permits the filing of a belated amicus curiae brief, the court shall set a deadline for an opposing party to file a reply brief.

[Emphasis added by ILB]

[Updated 2/3/10] SB 394 passed third-reading in the Senate yesterday by a vote of 50-0 and has been sent to the House, where it will be sponsored by Rep. Linda Lawson.

Posted by Marcia Oddi on February 2, 2010 01:40 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

S.W., alleged to be CHINS v. IDCS - "For these reasons, we conclude that DCS presented sufficient evidence to prove by a preponderance of the evidence that S.W.’s physical or mental condition was seriously endangered by her parent’s refusal or neglect to provide necessary supervision.

"Based on the foregoing, we conclude that the trial court did not abuse its discretion when it admitted evidence of S.W.’s drug use at the fact finding hearing and the DCS presented sufficient evidence to prove that S.W. is a CHINS."

NFP civil opinions today (1):

Dale L. Horn v. Lucinda B. Horn (NFP) - "We hereby grant Dale’s petition for rehearing for the sole purpose of clarifying our original memorandum decision issued on November 24, 2009.

"In his petition for rehearing, Dale alludes to a citation on page 14 of our memorandum decision that includes a reference to an amount of “two thousand” instead of two hundred thousand which is allegedly owed by Dale in back taxes. * * *

"With the exception of this clarification, we affirm our memorandum decision in all other respects."

NFP criminal opinions today (4):

Joshua W. Weston v. State of Indiana (NFP)

Marquis A. Foard v. State of Indiana (NFP)

Edward A. Fair v. State of Indiana (NFP)

Todd Zurbuchen v. State of Indiana (NFP)

Posted by Marcia Oddi on February 2, 2010 01:19 PM
Posted to Ind. App.Ct. Decisions

Not law but interesting - "Why is Peter Orszag so sexy? "

Watch the video. I don't recall anything like this when Mitch Daniels was director of OMB ...

Posted by Marcia Oddi on February 2, 2010 10:48 AM
Posted to General News

Ind. Gov't. - "City could expand gun owners' rights"

Apparently our Indianapolis Parks are so dangerous some city council members believe carrying guns in city parks should be permitted so people can protect themselves. Francesca Jarosz has the story today in the Indianapolis Star:

Recent momentum to strengthen gun owners' rights in Indiana could get more force from a City-County Council proposal that would let residents with gun permits carry firearms in Indianapolis parks.

The measure, introduced Monday by Libertarian Ed Coleman, would amend a long-standing ordinance that bars anyone not authorized by the city's Parks and Recreation Board from carrying guns in city parks. It has drawn criticism from those concerned about gun violence and from the city's Department of Parks and Recreation, which says the restrictions are needed to maintain safety. But it has also garnered some support from members of the council's Republican majority.
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The proposal comes as pro-gun initiatives are moving forward in the Indiana General Assembly. The Indiana House voted 76-21 last week for a bill that would let people take their guns to most workplaces, as long as they were kept locked in a vehicle. A similar bill passed the Senate. And another proposed state law would keep information about gun permits from being released to the public. [ILB - see this 1/27/10 entry.]

Coleman's proposed ordinance follows recent changes that will allow people with gun-carry permits to take firearms into state and federal parks.

Until two years ago, guns were banned from state parks, but a rule change made it legal to carry guns in those parks and other land owned by the Indiana Department of Natural Resources. A law passed last year will make it legal to carry guns in national parks starting Feb. 22, but only in states where park systems already allow them.

Coleman said those changes strengthen the case that Indianapolis' parks also should allow guns. * * *

Coleman, however, said his proposal would make parks safer by allowing those who own guns legally to protect themselves.

The ordinance has gotten some traction among members of the council's Republican caucus.

Council President Ryan Vaughn, a Republican, said he agrees there's a need to make the gun laws in parks more level.

"For the sake of consistency, I think there's merit in it," Vaughn said. "You could have citizens who don't know what kind of park they're in."

Posted by Marcia Oddi on February 2, 2010 10:36 AM
Posted to Indiana Government

Courts - More on "More court cases to test campaign-finance limits"

Updating this ILB entry from Jan. 27, 2010, Marcia Coyle of The National Law Journal has a long article today headed "High Court Campaign Finance Opinion Roils Dozens of Cases."

Posted by Marcia Oddi on February 2, 2010 10:32 AM
Posted to Courts in general

Ind. Decisions - Transfer list for week ending January 29, 2010

Here is the Clerk's transfer list for the week ending January 29, 2010. It is three pages long.

One transfer was granted last week with opinion, in the case of Bules v. Marshall County -- see this Jan. 28 ILB entry for details.

The Voter ID case transfer order, about which I reported on Jan. 25th, is also on the current list.

__________

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

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

Posted by Marcia Oddi on February 2, 2010 09:58 AM
Posted to Indiana Transfer Lists

Ind. Courts - "Charlestown makes city court position full-time"

Branden Lammers reports in the Feb. 1 Jeffersonville New&Tribune:

The Charlestown City Council met briefly Monday evening. * * *

Ordinance 2010-OR-4 allowed for the Charlestown City Court Clerk Kim Rouff to move from part-time to a full-time position. She will receive the same hourly rate, but her hours per week will increase from 32 to 40, said Mayor Bob Hall.

Funding to pay for the increased hours will come out of the city’s general fund, he said.

Posted by Marcia Oddi on February 2, 2010 09:32 AM
Posted to Indiana Courts

Law - Still more on: Free Fastcase access on iPhone

Updating this ILB entry from Jan. 30, Ted Waggoner of Peterson & Waggoner, LLP, Rochester, IN, wrote early yesterday to report:

Loaded the app over the weekend, and played with it some. Not bad, got the several cases and statutes I tested it on. It can save the matter, but not email or print which is a weakness. Better search than the Indiana Code LSA page I was using for Indiana statutes.

Late yesterday Ted wrote again, to point out a review on a blog that was new to me -- iPhone J.D. A few quotes from the lengthy review:

Fastcase I will start this review with what probably belongs in my conclusion: Every single lawyer using an iPhone should download the Fastcase app. Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today. This app is that useful. * * *

On the iPhone, however, I don't need something as powerful as the full version of Westlaw or Lexis. My research needs on the iPhone usually consist of pulling a case when I am out of the office and have a citation, doing a quick search for recent cases that contain a word or phrase, or pulling a statute. Last week, for example, I was in trial and there were several times when I wanted to quickly pull a case at issue and read it. I accessed Google Scholar using Safari (which I previously discussed here) and for the most part I got what I needed, but it would have been much easier to use a dedicated legal research app. How I wish that Fastcase for the iPhone had been released last Monday instead of last Friday! I would have made extensive use of this app during my time in the courtroom, and the app is so efficient that I would have been much more productive. I know that I will be using this app a lot in the future when I am in court, a meeting, or otherwise out of the office and need to look at the law. * * *

I presume that Fastcase is offering the iPhone app for free in the hopes that attorneys will enjoy using the iPhone version so much that they will sign up for Fastcase on their computer. That's not a bad strategy. My opinion of Fastcase has gone up quite a bit as I have been using this app over the last few days, and I'm sure that I will find myself giving Fastcase a second look on my computer as a result. If Westlaw or Lexis were to come out with a full featured app, then Fastcase would have some serious competition. Lexis already has an iPhone app, and while it is free, it lacks so many important features that I find the current version of the app just plain frustrating. Also, I suspect that at some point, someone will come out with a good iPhone app front end to Google Scholar, which would also give Fastcase some serious competition. But unless and until we see something good and free from Westlaw, Lexis or Google, Fastcase will clearly be the research app of choice for all attorneys with iPhones. Congratulations to Ed Walters and his team at Fastcase for creating an incredibly useful app that every lawyer should get immediately.

Posted by Marcia Oddi on February 2, 2010 09:20 AM
Posted to General Law Related

Monday, February 01, 2010

Ind. Decisions - No transfer list received yet for the week ending Jan. 29

Maybe tomorrow ...

Posted by Marcia Oddi on February 1, 2010 06:17 PM
Posted to Indiana Transfer Lists

Environment - "For scofflaws, a public mea culpa: Plea-deal ads admit environmental crimes"

Some quotes from Jonathan Saltzman's story in today's Boston Globe:

The Rockmore Co. has a confession: “Our company has discharged human waste directly into Massachusetts coastal waters.’’

That statement is part of an abject apology that will soon appear in newspaper ads if a federal judge approves a plea deal between the US government and Rockmore, which is accused of illegally dumping waste for years in Salem Harbor and in the Charles River off the Esplanade from its sightseeing cruise ship and its floating restaurant.

The agreement would mark at least the fourth time in recent years that federal prosecutors in Massachusetts have required environmental scofflaws to buy large and costly advertisements atoning for their crimes as part of their sentences.

Many legal scholars say the apologies foster contrition and save the government the high costs of more traditional punishments, such as incarceration.

But some defense lawyers and scholars say the ads represent a throwback to the stocks and pillories of Colonial times and are designed less to educate the public and more to humiliate wrongdoers. * * *

If the plea deal is accepted by US District Judge Joseph L. Tauro on Feb. 8 in Boston, the company would have to pay fines of more than $300,000, spend three years on probation, and run a half-page apology in the Boston Herald and full-page apologies in three newspapers that serve coastal communities.

“We, the Rockmore Company, sincerely apologize for contaminating the coastal waterways of Massachusetts,’’ the ad is supposed to say. “For these actions, we have paid a steep fine and have pleaded guilty to criminal charges. We are sorry.’’

The company’s name is to appear at the bottom of the ad in typeface twice the size of the text’s typeface

Posted by Marcia Oddi on February 1, 2010 05:42 PM
Posted to Environment

Ind. Law - Lebanon attorney held on OWI charge

From a brief story in the Lebanon Reporter:

Lebanon — Eileen J. Sims, 59, whose law firm represents the city of Lebanon and the Boone County Commissioners, was arrested on multiple charges Thursday after she crashed into a fire hydrant and left the scene.

Posted by Marcia Oddi on February 1, 2010 05:38 PM
Posted to Indiana Law

Ind. Decisions - " Court Rejects Cross-State Rules on Car Title Lenders"

The 7th Circuit ruling January 28th in the case of Midwest Title Loans v. David H. Mills, Dir, Ind. Dept. Financial Institutions (see ILB summary here) is the subject of a story today by Annie Youderian of Courthouse News Service:

An Indiana law imposing interest rate caps on out-of-state car title lenders unconstitutionally burdens interstate commerce, the 7th Circuit ruled.

The Chicago-based appellate panel shot down a law that forced an Illinois car title lender to get an Indiana license to make consumer loans. That license made Midwest Title Loans subject to Indiana's regulations on predatory lending, including a ceiling on the annual interest rate that a lender may charge. If the lender doesn't get an Indiana license, the borrower doesn't have to repay the loan and is entitled to a refund of excess interest payments.

Judge Richard Posner noted Indiana's interest in protecting its citizens from predatory lending, but said the Constitution's dormant Commerce Clause bars "extraterritorial regulation." * * *

"To allow Indiana to apply its law against title loans when its residents transact in a different state that has a different law would by arbitrarily to exalt the public policy of one state over that of another."

Posted by Marcia Oddi on February 1, 2010 02:16 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Mark Hinkel v. Sataria Distribution & Packaging, Inc. , a contracts/employment law case, Judge Vaidik writes, in a 12-page, 2-1 opinion including a 2-page dissent:

The appellant, Mark Hinkel, was hired to work for the appellee, Sataria Distribution and Packaging, Inc. (“Sataria”). Hinkel was allegedly promised a year’s worth of salary and insurance coverage if he were ever terminated involuntarily, but his written employment contract did not provide for severance pay or post-employment benefits. Hinkel was soon terminated, and he did not receive the severance package he says he was promised. Hinkel sued for breach of contract and/or promissory estoppel. The trial court entered summary judgment in favor of Sataria. We hold that (1) Hinkel’s written employment contract is a completely integrated agreement which precludes consideration of any prior or contemporaneous oral promises, (2) to the extent the severance agreements were made after the execution of the written contract, they were not supported by additional consideration, and (3) Hinkel is unable to sustain his claim of promissory estoppel. We affirm. * * *

RILEY, J., concurs.
CRONE, J., dissents with separate opinion. [that reads in part]I respectfully dissent because I disagree with the majority’s conclusion that Jacobs’s oral promise to Hinkel regarding a severance package is “barred from consideration by the parol evidence rule.” Slip op. at 4. I do so for two reasons.

First, I believe that a genuine issue of material fact exists regarding whether the parties intended for Jacobs’s written job offer to Hinkel to be completely integrated, i.e., a “final and complete expression of all the parties’ agreements[.]” * * *

Second, the terms of the severance package do not vary from or contradict the terms of the written offer, but merely cover that which was not covered in the offer.2 As such, even assuming that the offer is completely integrated, the terms of the severance package would not be barred by the parol evidence rule.

In Erica Bishop v. The Housing Authority of South Bend , a 19-page opinion, Judge Darden writes:

Erica Bishop appeals the trial court's order that granted the Housing Authority of South Bend (“HASB”) prejudgment possession of the apartment unit she had leased from HASB. We affirm.

Issues:
1. Whether the order must be reversed because the trial court violated Bishop's right to a jury trial on the issue of immediate possession.
2. Whether the trial court committed reversible error when it refused to issue a transportation order for Bishop's son Derek to testify at the hearing on immediate possession.
3. Whether the order of immediate possession must be reversed because HASB failed to follow U.S. Department of Housing and Urban Development (“HUD”) rules in its termination of Bishop' lease.
4. Whether Bishop's lease with HASB was illegal or unconscionable.
5. Whether the termination of Bishop's lease, given the facts presented, violated due process.

In Borovilos Restaurant Corporation, II v. Lutheran University Association, Inc. , a 12-page opinion, Judge Darden writes:

Borovilos Restaurant Corporation II (“Borovilos”) appeals the trial court’s order on its complaint against Lutheran University Association, Inc. (“Valparaiso University”) for a preliminary injunction, declaratory judgment, and damages. We affirm.

Issues:
1. Whether the trial court’s order must be reversed because it fails to acknowledge Borovilos’ legal easement rights.
2. Whether we should remand for a determination of monetary damages.

NFP civil opinions today (1):

James Witt d/b/a Witt Construction v. Nancy A. Thornton (NFP) - "The small claims court did not abuse its discretion in excluding evidence offered by Witt or in not advising Witt that he could cross-examine Thornton. Further, the small claims court’s judgment is not clearly erroneous. Affirmed."

NFP criminal opinions today (3):

Danny Floyd, Jr. v. State of Indiana (NFP)

Coy Brindle v. State of Indiana (NFP)

Jonathon Grieshop v. State of Indiana (NFP)

Posted by Marcia Oddi on February 1, 2010 11:10 AM
Posted to Ind. App.Ct. Decisions

Law - "Internet experts and estate planners say a cybercrisis is brewing because Internet services, barring court order, forbid accessing or transferring accounts unless someone has the password"

This interesting article by Michael S. Rosenwald appeared in the Jan. 25, 2010 Washington Post. Some quotes:

[At least a dozen businesses] have sprung up to help denizens of the digital world grapple with the thorny issues raised after your physical being leaves behind only its virtual reality. Internet experts and estate planners say a cybercrisis is brewing because popular Internet services have policies that, barring an order from a court, forbid accessing or transferring accounts -- including recovering money -- unless someone has the password.

The legal fog affects not only personal lives -- the photo site Flickr has 40 million members -- but also millions of business accounts on such sites as eBay and PayPal and the virtual community of Second Life, which generated $55 million of real money for users last year. Despite our increasing reliance on cloud computing -- storing all sorts of data online through Web applications -- very few Internet users have begun to think about what happens to all that data should we get hit by a bus.

"We haven't truly seen the breadth of this issue play out yet, but I'm telling you, this is a huge problem," said Chicago lawyer Karin C. Prangley, who has spoken on the topic at conferences. "Ten or 15 years ago, someone could go into your house and find the paper trail if you die. Now the paper trail is online."

Posted by Marcia Oddi on February 1, 2010 10:51 AM
Posted to General Law Related

Courts - "Wealthy Kentucky businessman's heirs fight wife over will"

This long story today in the Louisville Courier Journal, reported by Andrew Wolfson, is but another instance of the children of a wealthy individual vs. the current wife. It begins:

Super salesman Mason C. Rudd made millions of dollars from the heavy-equipment company that bore his name and gave millions away as an equally committed philanthropist.

When he died last July at age 90, after a battle with diabetes, Rudd still had a small fortune in stocks, bonds, cash and real estate, including condominiums in Louisville and Florida and a horse farm off Wolf Pen Branch Road.

But now his daughter and four grandchildren say in court documents that after Rudd was “incapacitated” and on the “verge of death,” his “younger second wife” transferred millions of dollars to herself from his accounts and had him recraft his will to her benefit.

As a result, Rudd's “natural offspring” will get little more than mementos and furniture, according to the will contest they filed Jan. 21 in Jefferson Circuit Court.

According to their lawsuit, Peggy Mudd Rudd, who married Mason Rudd in 1999, when she was 59 and he was 81, stands to collect $3million in “liquid assets” plus $2 million that she took before Rudd's death.

“This lawsuit is not about money or condos or farms,” Rudd's grandson, Mason Miller, a Lexington attorney, said in an interview. “It is about doing what is right, because that is what our grandfather always did with his money. He would expect nothing less of us.”

But Peggy Rudd's lawyer said the family's “vitriolic” complaint will fail, because Rudd was competent when he signed his last will on April 16 and friends will vouch that he was lucid in the months before.

Posted by Marcia Oddi on February 1, 2010 09:16 AM
Posted to Courts in general

Courts - More on: Oral argument Nov. 3, 2009 before the SCOTUS in RICO case in which many states have an interest

The case is Hemi Group, LLC v. City of New York. As noted in this ILB entry from Nov. 3, 2009, the Indiana Attorney General authored an amicus brief in the case, joined by a number of other states.

According to this SCOTUSBlog entry by Brian Goldman:

The case presents the Court with an issue being watched closely by state and local governments nationwide: whether such governments may bring civil suits to recover non-commercial losses – such as uncollected taxes – under the Racketeer Influenced and Corrupt Organizations Act (RICO), which confers standing upon “any person injured in his business or property by reason of a violation of” RICO’s criminal prohibitions.

The WSJ had a brief story on Jan. 25, 2010, by Brent Kendall, headed "US High Court Rules Against NY City On Internet Tobacco Suit." Some quotes:

The U.S. Supreme Court ruled Monday that New York City could not use federal racketeering laws to sue out-of-state Internet tobacco retailers that don't file reports on city residents who buy cigarettes online.

The city wants the reports so it can collect cigarette taxes directly from residents who purchased tobacco products online. The retailers are not required to collect the taxes. * * *

But the Supreme Court, in a 5-3 opinion written by Chief Justice John Roberts, ruled that the relationship between Hemi's alleged actions and the city's inability to collect taxes was too indirect to establish racketeering liability against the online retailer.

Roberts said the direct cause of the alleged fraud against the city was not Hemi's conduct, but the refusal of residents to pay their taxes for online cigarette purchases. "The city, therefore, has no RICO claim," Roberts wrote.

Yesterday Michael Kirkland of UPI reported:

Last week, however, the Supreme Court made it harder for state and local governments to collect taxes for online sales using federal racketeering law.

Federal law, of course, bans government at all levels from collecting taxes for Internet access or from imposing Internet-only taxes. Amended in 2007 to extend its provisions to 2014, the Internet Tax Freedom Act does allow a sales tax or use tax for online sales.

Moreover, the federal Jenkins Act says a company selling cigarettes online does not have to pay the taxes, but must provide a state the names and addresses of those ordering the smokes, so a state and a city can then collect taxes. Failure to disclose sales is a misdemeanor, punishable by a fine of up to $1,000, a jail term of up to six months or both.

In last week's case, New York City filed suit under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, against New Mexico's Hemi Group LLC, which sells cigarettes online.

The city said Hemi's failure to file reports about who was buying cigarettes online was fraud, a "predicate act" under RICO that caused the city to lose tens of millions in cigarette taxes. RICO's civil provisions provide for triple damages.

A federal judge dismissed the suit, but the 2nd U.S. Circuit Court of Appeals in New York threw out that ruling and said the city had a valid RICO claim.

The Supreme Court reversed the appeals court, ruling for Hemi. Citing precedent in the majority opinion, Chief Justice John Roberts said there had to be a more direct connection for a RICO injury.

For more, see the SCOTUSLaw Wiki on the case.

Posted by Marcia Oddi on February 1, 2010 08:50 AM
Posted to Courts in general

Law - "Asset Forfeiture: 'A License to Steal'”

Updating earlier ILB entries on Alvarez v. Smith, Ilya Somin has this entry today in The Volokh Conspiracy on "the asset forfeiture system, which often allows police to seize property without compensation — even in cases where the owners have not been convicted of any crime." He continues:

In many cases, the authorities hold on to the seized property for months at a time without giving innocent owners any opportunity to contest the seizure whatsoever. If that isn’t deprivation of property without “due process,” it’s hard to see what is. The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out the case on procedural grounds. Hopefully, the issue will make its way back to the Supremes, and they will see fit to give innocent property owners at least some protection for their constitutional rights.

I am not optimistic that the political process will protect these rights on its own. As Radley explains, police departments and prosecutors in many areas have a vested interest in perpetuating these practices. In addition, most of the people whose property is seized in this way are relatively poor and lacking in political influence. There have been a few modest reforms over the years. But for reasons Radley outlines, they have only addressed a small part of the problem.

Posted by Marcia Oddi on February 1, 2010 08:27 AM
Posted to General Law Related

Law - Opening: Research Librarian, Frost Brown Todd, Louisville KY Office

Take a look at the qualifications.

Posted by Marcia Oddi on February 1, 2010 08:23 AM
Posted to General Law Related

Law - Dawn Johnsen on Senate Judiciary Committee agenda again

At the end of a very long list of items to be considered by the U.S. Senate Judiciary Committee on Thursday, Feb. 4, 2010, starting at 10:00 AM, is:

* * * and the nominations of Edward Milton Chen, to be United States District Judge for the Northern District of California, and Louis B. Butler, Jr., to be United States District Judge for the Western District of Wisconsin, and Christopher H. Schroeder, of North Carolina, Mary L. Smith, of Illinois, and Dawn Elizabeth Johnsen, of Indiana, all to be an Assistant Attorney General, all of the Department of Justice.

Posted by Marcia Oddi on February 1, 2010 08:18 AM
Posted to General Law Related

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

Good morning and welcome to another work week. Here is the answer to "What did you miss from the ILB during the past weekend?"

From Sunday, Jan. 31, 2010:

• Ind. Gov't. - According to new report, Counties could save cash with vote centers
• Ind. Law - Who voted for and against the "defense of marriage" constitutional amendment?
• Ind. Law - "Red-light runners rampant: Definitions vary; ticketing makes little difference"
• Ind. Courts - "Lake County closer to ankle monitors: Less expensive than jail for minor offenses"
• Courts - "Idea of company-as-person originated in late 19th century"
• Ind. Law - "Judges hope bill restores say in placing juveniles"
• Ind. Law - More on "Grandparents testify in Indy to establish visitation rights"
• Ind. Gov't. - "Indiana Embraces Tax Caps Despite Hit to City Services "

From Saturday, Jan. 30, 2010:

• Law - More on: Free Fastcase access on iPhone
• Ind. Law - Student sexting in Indiana, are felonies the answer?
• Environment - More on: The other side of CAFO manure spills and run-off
• Ind. Courts - Continuing with "ACLU Lawsuit claims Indiana law examiners violate the ADA "
• Ind. Gov't - "Mistake found on Indiana tax form"
• Ind. Decisions - Interesting discovery ruling from SD Ind.

Posted by Marcia Oddi on February 1, 2010 07:50 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/1/10):

• None scheduled.

Next week's oral arguments before the Supreme Court (week of 2/8/10):

• None currently scheduled.

ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.

---

This week's oral arguments before the Court of Appeals (week of 2/1/10):

Tuesday, February 2nd

• 1:30 PM - Marvin Smith v. State of Indiana (49A05-0905-CR-256) - Marvin Smith was convicted of Class C felony robbery, Class D felony criminal recklessness, and Class A misdemeanor failing to stop following an accident causing injury, found to be a habitual offender, and sentenced to an aggregate sentence of eighteen years of incarceration. Smith contends on appeal that the State failed to establish that property was taken from the CVS that he was alleged to have robbed or that he was person who demanded property from the CVS and that his aggregate sentence is inappropriately harsh. The Scheduled Panel Members are: Judges Darden, Barnes and Bradford. [Where: Lawrence North High School, 7802 Hague Road, Indianapolis, Indiana, 46256]

Next week's oral arguments before the Court of Appeals (week of 2/8/10):

Next Tuesday, February 9th

• 11:00 AM - C.R., A Minor, (by her mother and natural Guardian, C.C. v. Clint Stone, et al. (43A03-0905-CR-233) - C.R., a minor, by her mother, C.C., filed a six-count amended complaint for damages against Clint Stone, as well as his employer Coffel Vending Company, Tippecanoe Valley School Corporation, and Tippecanoe Valley High School. Counts I and II therein alleged, respectively, that Stone had committed intentional infliction of emotional distress and invasion of privacy of intrusion. Stone moved to dismiss the entire amended complaint pursuant to Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief may be granted, which motion was granted with respect to Counts I and II. C.R. now challenges the trial court's grant of Stone's motion to dismiss Counts I and II of her amended complaint. The Scheduled Panel Members are: Judges Kirsch, Darden and May. [Where: Court of Appeals Courtroom (WEBCAST)]

Next Thursday, February 11th

• 2:30 PM - Hosey Whitmore v. State of Indiana (71A03-0911-CR-507) - Whether there was sufficient evidence to support Defendant's conviction for Felony Murder and whether the trial court imposed an inappropriate sentence given the nature of the crime. The Scheduled Panel Members are: Judges Darden, Bailey and Robb. [Where: Supreme Court Courtroom (WEBCAST)]

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

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

---

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

Posted by Marcia Oddi on February 1, 2010 07:41 AM
Posted to Upcoming Oral Arguments

Sunday, January 31, 2010

Ind. Gov't. - According to new report, Counties could save cash with vote centers

An AP story in the NWI Times this afternoon begins:

INDIANAPOLIS | A new report says all 92 Indiana counties could save money if they used vote centers on Election Day instead of traditional precinct locations.

Currently only three counties — Tippecanoe, Cass and Wayne — are allowed to use vote centers under a state pilot program. Voters there can cast their ballots at any county voting location instead of just their neighborhood precinct.

A new analysis by the Indiana Fiscal Policy Institute says all counties could save if they went to vote centers. The report shows Lake County would cut its costs by more than half, saving $397,000. Porter County would reduce its costs by 37 percent, saving nearly $60,000, and LaPorte County's reduction would be 37 percent, or more than $40,000.

"This study finds that counties that choose to establish vote centers could realize significant cost savings both immediately and long-term," said John Ketzenberger, president of the IFPI. "Another advantage is vote centers give local election officials more flexibility to anticipate voter turnout and deploy staff more effectively."

Here is the 32-page report,

Posted by Marcia Oddi on January 31, 2010 06:28 PM
Posted to Indiana Government

Ind. Law - Who voted for and against the "defense of marriage" constitutional amendment?

As Doug Masson's blog has also noted, SJR 13, the proposed constitutional amendment that not only limits marriage to one man and one woman , but also provides that "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized", was adopted by the Indiana Senate on Jan. 28 and sent on to the House.

The vote was Yeas 38 and Nays 10. But, oddly, the Roll Call showing how the individual senators voted has not been linked, although it is identified as Roll Call #67.

Stranger still, if one goes to the file containing presumably all the Senate roll calls, there is no #67.

Posted by Marcia Oddi on January 31, 2010 11:41 AM
Posted to Indiana Law

Ind. Law - "Red-light runners rampant: Definitions vary; ticketing makes little difference"

What exactly is a "red light" is expored in this story today by Benjamin Lanka of the Fort Wayne Journal Gazette. Some quotes from the long story:

Stopping for a red light apparently is far from a black-and-white issue.

The concept is simple enough to be understood by most children, but Fort Wayne drivers have widely varying interpretations on what it really means.

Even Fort Wayne police and the city’s traffic engineer disagreed on what constitutes a violation.

What is clear is that regardless of interpretation, Summit City drivers often choose to ignore that bright red bulb. Hundreds of motorists are ticketed for the offense even in the slowest years. * * *

The problem is so prevalent that Laura McCoy, a driving instructor for Fort Wayne Community Schools, teachers her students not to enter an intersection until they check for drivers running reds, especially at downtown intersections where sightlines are blocked.

“There are so many people in Fort Wayne who run those lights downtown,” she said. “You almost plan on somebody running that light.” * * *

Not everyone agreed on what constitutes a violation.

Maze said officers can cite a driver if any part of that driver’s vehicle is in the intersection when a light turns red. This means drivers who enter on yellow and don’t make it through can get a ticket.

Shan Gunawardena, city traffic engineer, said he believed vehicles are allowed to enter an intersection while the signal is yellow, even if the light changes to red while the vehicle is in the intersection. He said this is the interpretation the city uses to design its intersections.

It was not until after an inquiry by The Journal Gazette that the city confirmed the police interpretation of the law is correct.

Many years ago when a traffic signal switched to red, traffic in the opposite direction was given a green light immediately. Crashes caused by people running reds and jumping greens led to the start of the all-red sequence.

Gunawardena said the duration a traffic light remains red in all directions is based on the amount of time needed to safely clear an intersection of all vehicles that entered on yellow. This varies based on the size of the intersection. For the intersection of Covington Road and West Jefferson Boulevard, the interval is 4.5 seconds, but he said most intersections are between 1 and 2 seconds.

McCoy, of FWCS, said knowing when to stop at an intersection is one of the most difficult decisions for new drivers. She said what is most important is for drivers to make a decision and stick with it, whether it’s stopping early or continuing through a yellow or red light. Problems are caused when drivers brake and then speed up or slam on the brakes when they are already in an intersection.

“With a new driver, indecision can be the worst problem,” she said. * * *

The two biggest factors that cause drivers to run red lights are inattention to the road and frustration caused by congestion, he said.

All the engineering for the safety of an intersection is based on posted speed limits, he said. He added that drivers who speed will typically be forced to enter an intersection later in a signal because they are going too fast to brake safely for a red light.

“When you are approaching a traffic signal it is important to be doing the speed limit or less,” he said.

Posted by Marcia Oddi on January 31, 2010 11:32 AM
Posted to Indiana Law

Ind. Courts - "Lake County closer to ankle monitors: Less expensive than jail for minor offenses"

Andy Grimm of the Gary Post-Tribune had this long story Jan. 30th that began:

CROWN POINT -- Lake County judges may soon be ordering nonviolent offenders to put on electronic anklets instead of sending them to cells in the troublesome county jail.

County and city judges are working on a list of criteria that will define what crimes merit being locked up before trial, a key component of a "book and release" program touted during budget negotiations by Sheriff Roy Dominguez as a way for the county to save millions.

Instead of booking people arrested for nonviolent, misdemeanor-level crimes into the jail at a cost of $55 per day, inmates who are eligible to post bond could be fitted with a high-tech ankle bracelet and sent home for as little as $8.

"The cost has brought the issue to the forefront, but we've been talking about this for five years," said Judge Julie Cantrell, who said many jail inmates are locked up on minor charges because they can't afford the few hundred dollars in bond set for their crimes.

"Public safety is the most important issue, but the more I looked at it, the more I saw people that are in there because they have no bond money."

Posted by Marcia Oddi on January 31, 2010 09:02 AM
Posted to Indiana Courts

Courts - "Idea of company-as-person originated in late 19th century"

Martha C. White writes today in the Washington Post, in an article that begins:

The Supreme Court's 5 to 4 decision that rolled back long-standing restrictions on corporate campaign finance donations has generated a lot of Sturm und Drang from proponents of campaign reform and the White House itself. At the crux of the decision was a determination that corporations have a right to free speech. The court ruled that limiting the amount that companies can spend promoting their favored candidates is tantamount to denying First Amendment rights.

Since when do corporations have civil liberties?

Posted by Marcia Oddi on January 31, 2010 09:00 AM
Posted to Courts in general

Ind. Law - "Judges hope bill restores say in placing juveniles"

Niki Kelly of the Fort Wayne Journal Gazette reports today at length on House Bill 1167, aimed at reversing one of the many "surprises" in the 2009 special session budget. Here are some quotes from Kelly's story:

INDIANAPOLIS – After administration officials slipped an eleventh-hour provision into last year’s budget bill that eliminated a negotiated compromise on juvenile placements, judges are fighting back this year with a bill to restore their discretion.

It is the latest strike in a turf battle two years in the making between the judicial and the executive branches of government over sending delinquent kids to out-of-state programs.

“This doesn’t affect a lot of people, but for those it does, it affects them deeply,” said Rep. Win Moses, D-Fort Wayne. “Traditionally, we should keep kids with their families. But sometimes there are bad families and the kids shouldn’t be in those communities.”

The number of juvenile placements in question is relatively small – at present, 85 children have been placed out of state. The bigger issue seems to be the public-policy question of who controls the final decision – a judge or a state administrator.

The tug of war goes back to 2008 when lawmakers passed property tax reform in which the state took over all child welfare costs. This includes delinquency cases and children found in need of services, such as those abused or neglected.

Gov. Mitch Daniels’ administration made clear at the time if the state was to be responsible for the bills, there would have to be checks and balances.

So legislators, administration members and judges reached a compromise regarding these placements that involved an expedited appeal to the Court of Appeals if the Department of Child Services disagreed with a juvenile judge’s decision.

The state agency lost several appeals under the new system. In fact, when the Indiana Supreme Court refused to hear a case, Chief Justice Randall T. Shepard attached this proviso to the order:

“The Department has urged that the judge be commanded to place the child in one of several Indiana facilities, the cheapest of which will cost 50 percent more per day than the one in Arizona which all the remaining players, including the prosecuting attorney, think can provide the best chance to divert the juvenile from delinquency to a more successful life. That is, after all, the point of government intervention.

“I stand fully ready to smack down anything that even sniffs of judicial overreaching or overspending. But if the appeals we have seen so far represent the worst instances of attacks on the public fisc (treasury), it suggests to me that judges, prosecutors, probation departments, and guardians are acting very responsibly.”

Ultimately, Department of Child Services Director Jim Payne, a former juvenile judge, sought a legislative remedy in last year’s contentious special budget session.

The provision that was added said the state won’t pay for the services if the placement is not recommended or approved by Payne – ultimately throwing out the appeals process agreement that had been reached.

“We can provide a place for these children rather than send them out of state,” Payne told a legislative committee last week. “Keeping the child close to home and in the state is the best practice.” * * *

Moses filed House Bill 1167 to revert to the previous appeals process. It was amended before advancing from committee last week to include a provision saying the state is responsible for the costs of services and housing if the proposed placement is no more expensive than similar services provided within the state.

“I believe a judge that sits in the court and listens to the testimony and talks to the child is in a much better place to make a decision on the placement of a child than some bureaucrat in Indianapolis reading a file,” said Rep. Dennis Avery, D-Evansville.

A number of Republicans also supported the bill because of concerns about separation of powers.

For background, start with this ILB entry from Sept. 8, 2009, headed: "Certainly we haven't heard the last of: 'Apparently there are all sorts of surprises in the special session budget.'"

Posted by Marcia Oddi on January 31, 2010 08:33 AM
Posted to Indiana Law

Ind. Law - More on "Grandparents testify in Indy to establish visitation rights"

Updating this ILB entry from Jan. 19, 2010, about SB 59 (which passed third reading in the Senate Jan. 25th with a vote of Yeas 44 and Nays 6), here is a letter published in the Jan. 30th Terre Haute Trib-Star, headlined "Intrusive expansion of visitation litigation", written by Karen A. Wyle, a Bloomington attorney:

Most Hoosiers have no idea that in Indiana, widowed, divorced and single parents can be sued for grandparent visitation. If such parents make the difficult decision that contact with a grandparent is bad for their child or even dangerous, a trial judge can overrule this decision. Now, bills are racing through the Indiana House and Senate that would undermine the parental authority of parents in intact families and subject them to the same litigation.

Grandparent visitation litigation is almost always a tragic and counterproductive mistake, with the child the principal victim. Litigation generally puts an end to any possibility of future improvement in relations between parent and grandparent. By so doing, it further reduces the chances of a healthy and beneficial relationship between grandparent and grandchild. If the grandparent wins visitation, the child will be in an ongoing emotional crossfire. The litigation itself places enormous emotional stress on the custodial family, and consumes financial resources that would otherwise have benefitted, even fed and clothed, the child at its center.

The proponents of these bills, HB 1055 and SB 59, express concern about grandparents and great-grandparents who step in to care for their grandchildren when the parents are unable to do so, only to be kept away from the children when the parents take up their role again. These concerns can be addressed through guardianship proceedings or statutes concerning de facto parenthood, or, where the parents are arguably unfit, via Child Protective Services. These bills reach far further.

The U.S. Supreme Court case of Troxel v. Granville, repeatedly recognized by the Indiana Court of Appeals, held that a parent’s fundamental constitutional right to raise his or her child includes the right to make decisions about contact between children and their grandparents (or other nonparents). Courts must, in any grandparent visitation dispute, start out by presuming that the parent’s decision to deny grandparent visitation was in the child’s best interests. Only if that presumption is decisively rebutted, by specific facts rather than generalizations about grandparental affection, may the court override the parent’s decision.

Our current grandparent visitation statute, I.C. 31-17-5, unfortunately makes no mention of these binding constitutional principles. The proposed bills not only would not correct this situation, but would greatly expand the scope of nonparent visitation litigation. Intact families who have not in any way involved the judicial system in their family lives could be thrust into the purgatory of visitation litigation.

The situations most often thought to require such intervention — where a single, divorced or widowed parent is unwilling to let the child continue a relationship with the parents of the noncustodial parent — would no longer be a prerequisite for a family’s being dragged into court.

Please — call or e-mail your state representative and senator immediately and tell them to oppose these bills. Contact Gov. Daniels and urge him to veto the bills if he receives them. Please do what you can to stop this well-intentioned, but harmful and intrusive expansion of nonparent visitation litigation.

Note that HB 1055 paased the House on Jan. 28, with a vote of 63-33.

Here are a number of other ILB entries mentioning grandparents visitation.

Posted by Marcia Oddi on January 31, 2010 08:17 AM
Posted to Indiana Law

Ind. Gov't. - "Indiana Embraces Tax Caps Despite Hit to City Services "

That is the headline to a long story in the Jan. 30, 2010 WSJ, reported by Amy Merrick. It begins:

ndiana lawmakers are moving to enshrine property-tax caps in the state constitution, despite cuts in fire, police and other local services the limits have caused.

The push marks the latest round in a revenue tug-of-war between state and local governments amid plunging tax collections nationwide. States, forced to cut their budgets, have often held back funds pledged to local governments. In response, some cities, towns and school districts have raised property taxes—their main source of revenue—to partially fill gaps.

But property-tax increases started raising the ire of residents even before tax revenue fell off. A 2007 spike in Indiana's property-tax bills, just as the recession was gathering steam, led to a "tea party" protest, the ousting of the mayor of Indianapolis and a 2008 law limiting property taxes, which as of Jan. 1 may be no more than 1% of the assessed valuation for residential homes, 2% for rental properties and farms, and 3% for businesses.

The effective tax rate for homes in 2007 ranged from 0.19% to 3.13%, and the cap is expected to save homeowners $404 million statewide in the current fiscal year.

Posted by Marcia Oddi on January 31, 2010 08:10 AM
Posted to Indiana Government