Thursday, February 23, 2017

Ind. Gov't. - "Could be 1st state requiring parental notification when unemancipated minors pursue 'judicial bypass' procedure for abortion"

Niki Kelly of the Fort Wayne Journal Gazette reports on yesterday's Senate committee hearing on Senate Bill 404:

Pregnant girls would have to confront their parents if they want an abortion, according to a bill passed 6-4 by the Senate Judiciary Committee on Wednesday.

If Senate Bill 404 becomes law, Indiana would be the first state to require parental notification when unemancipated minors pursue the “judicial bypass” procedure for an abortion.

“The purpose is to strengthen parental rights,” said Corinne Purvis, attorney for Indiana Right to Life. “Parents have a constitutional right to determine the upbringing of their children.” * * *

Indiana law currently requires those younger than 18 to get permission from at least one parent before an abortion. But if they can’t or don’t want to, they can seek a waiver of that requirement from a judge, who considers whether the girl is mature enough to make the decision. In those cases, parents are not currently notified.

Statewide in 2015, 25 girls between the ages of 10 and 14 had abortions, and 219 between the ages of 15 and 17 did. Testimony Wednesday said there are about 20 cases of so-called judicial bypass each year in Indiana.

Jane Henegar, executive director for the American Civil Liberties Union of Indiana, argued that the new notification provision is unconstitutional. That’s because courts have ruled that a girl’s parents can’t exercise an absolute veto over her right to an abortion.

States requiring parental notification or consent must provide an alternate process – for example, petitioning a judge for a waiver. By requiring the girl to notify her parents of the petition, Henegar said it runs afoul of those rulings, and the group would challenge the requirement in court if it becomes law.

But that isn’t all the legislation would do. It would also require an adult giving consent for the abortion to prove to the abortion provider that he or she is the girl’s parent or legal guardian through birth records, court orders and ID cards. Indiana Right to Life and several pro-family groups allude to situations where adults are accompanying young girls to get an abortion and lying about being a parent.

Planned Parenthood of Indiana and Kentucky – the state’s largest abortion provider – requires an ID card and makes a copy. But they require only that the adult sign the consent form under penalties of perjury.

The bill also would require a judge to use a higher standard of evidence for the girl’s maturity – clear and convincing evidence, rather than a simple preponderance – before granting the waiver.

But the parental notification provision in waiver cases is clearly the most problematic.

It was unclear whether one or both parents would have to be notified. One senator pointed out that a girl whose father molests her would have to notify her rapist that she is trying to get an abortion. And several people who testified said the bill requires the girl to use an expensive and time-consuming civil process service.

The bill requires a judge to rule within 48 hours on a waiver request, but it also says the judge can’t rule without proof of notification of at least one parent.

Posted by Marcia Oddi on February 23, 2017 12:08 PM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (2):

Jay F. Vermillion v. State of Indiana (mem. dec.)

Ricky L. Allen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 23, 2017 11:52 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Bill prohibiting 'sanctuary universities' moves forward in Indiana Senate"

An ILB post from April 10, 2013 begins (quoting a story from the Kokomo Tribune):

On Tuesday, the House Education Committee voted 8-4 in favor of a bill that would partially roll back a 2011 law banning undocumented students who grew up in Indiana from accessing the lower in-state tuition rate at the state’s public universities. The 2011 law, which requires they pay the more expensive out-of-state rate, led to hundreds of students dropping out.

The version of Senate Bill 207 that passed out of the House committee only covers the students who were enrolled in college when the ban went into effect two years ago.

But Republican bill backers want to expand the legislation’s language to cover more students. With support from Republican House Speaker Brian Bosma, they plan to introduce an amendment to do so when the bill comes up for debate in the full House.

“It really comes down to this: every child in our state needs the opportunity to have an education, “ said state Rep. Rebecca Kubacki, a Republican from Syracuse and the House sponsor of Senate Bill 207.

A July 28, 2013 story provides some follow-up.

Now, in the 2017 General Assembly, the question appears to be not how much additional tuition to charge undocumented immigrants, but whether they may attend Indiana schools at all.

Kaitlin L. Lange of the Evansville Courier & Press reports, in a story reprinted in the Indiana Economic Digest:

An Indiana Senate committee approved a measure Tuesday to make “sanctuary universities” illegal in Indiana — a move that would prohibit universities from letting undocumented immigrants attend school, with some exceptions.

Those who were protected under former President Obama’s Deferred Action for Childhood Arrivals Program (DACA) will still be allowed at universities under House Bill 423 because they were brought into the country as children. But if President Trump were to repeal that program, Indiana universities would no longer be able to allow any undocumented immigrants to attend universities.

The bill’s passage through committee comes just a day after the U.S. Department of Homeland Security sent a memo implementing Trump’s plans to crack down on undocumented immigrants. The memo called for government agents to identify any undocumented immigrant for deportation, with a focus on those who’ve committed crimes.

Trump left DACA untouched for now. Homeland Security spokeswoman Gillian Christensen said Tuesday that those deportation protections for about 750,000 undocumented immigrants would continue to be honored.

If Trump repeals DACA, bill author Sen. Michael Young, R-Indianapolis, said they would have to re-examine the state’s policies.

Still, some opponents of the Indiana Senate bill worry the legislation would just cause worry for immigrants already concerned with Trump’s policy promises on immigration. * * *

The legislation, if it passes in the House and Senate, would only apply to the seven state universities, but a couple of senators suggested extending the measure to private universities on the Senate floor with amendments.

While definitions on “sanctuary universities” can vary slightly, this legislation prohibits universities from not sharing immigration status of students with government officials, maintains that it is illegal for undocumented students to attend universities and prohibits schools from offering instate benefits to these students. Young said the bill has nothing to do with immigration policy; it just requires universities to comply with state and federal government. He maintained that this bill was an expansion of previous legislation that outlawed sanctuary cities. * * *

Some senators said the bill was unnecessary because of the lack of sanctuary schools in the state and were concerned it would only lead to negative perceptions about what the legislature was trying to accomplish.

Posted by Marcia Oddi on February 23, 2017 09:09 AM
Posted to Indiana Government

Ind. Gov't. - "Bill to reduce regulations on livestock operations raising concerns"

Supplementing this Feb. 21st ILB post headed "Does vote on mega farms stink?" Carol Kugler reports in the $$ Bloomington Herald Times (here reprinted in part in Indiana Economic Digest) - some quotes:

Under current Indiana law, anyone who plans to operate, start construction on or expand a confined feeding operation must submit an application and receive a permit from IDEM before construction or expansion of the facility can begin.

Before approval is given, IDEM engineers review the design and conduct inspections of buildings and manure storage structures. There are also routine and complaint-based inspections.

That could change if House Bill 1494 is passed this year by the Indiana Legislature, and representatives of the Hoosier Environmental Council as well as Hoosier residents are opposing the bill, which they believe takes away some of the needed rules and regulations governing confined feeding operations.

In the synopsis for HB 1494, it states that it would replace the “current prohibition against starting construction or expansion of a CFO without the prior approval of the Department of Environmental Management with the requirement that a person obtain a permit to construct and operate a confined feeding operation.”

The Hoosier Environmental Council is opposed to taking away the rules and regulations that help ensure there are no environmental issues related to the confined feeding operations. Kim Ferraro, senior staff attorney and director of agriculture policy for the advocacy group, said the proposed bill would take away the need for a person or company wanting to start or expand a CFO to notify neighbors and the county government before a permit is issued.

State Rep. David Wolkins, R-Warsaw, author of the bill, said that it would not change the current law, saying that the bill’s wording that a person must obtain a permit means that they must have prior approval from IDEM to receive that permit. “We did not change any existing state requirement” in the bill, Wolkins said.

More from the story:
Another major concern of the Hoosier Environmental Council and Ferraro is that the actual person or organization that applies for the CFO permit no longer would have to be the person or corporation that owns the facility. Also, HB 1494 would allow a person or company applying for the permit to disclose only those prior environmental violations of federal, state or foreign laws that happened in the past five years.

Ferraro said one fear is that large corporations will be able to hide behind someone else who will file for either a new or expanded feeding operation. The concern is that no one will know who the true decision makers for the operation are until it’s too late.

“House Bill 1494 in isolation might not be as problematic,” Ferraro said, but the bill takes current law “further in the wrong direction.” She was also concerned that not disclosing the whole history of environmental violations would not give an accurate portrayal of the applicant.

When asked about those concerns, Wolkins said his proposed bill would be looking into the history of the person who is directly responsible for the operation. “The thought is that the investor who puts money into it, why should they have to go through a background check?”

Before the bill was passed out of committee by a vote of 7 to 3, there were three hearings this month for proponents and opponents to talk to the House Environmental Affairs Committee. Ferraro said there was “standing room only” at all three of the hearings, with most of the people speaking in opposition to the bill.

After the committee voted to allow the bill to move forward, Ferraro sent out a statement that said in part, “Our lawmakers should be looking for ways to address the serious gaps in public health safeguards that leave our environmental and rural communities vulnerable and create perverse incentives for industrial livestock agriculture at the expense of sustainable farmers.

“Our legal opinion remains that HB 1494 would make matters worse by further weakening state permitting requirements for factory farms and making it even easier for factory farms to proliferate regardless of their impact on property values, our lakes and streams, the air we breathe and the quality of life in our rural communities.”

ILB: Rep. Wolkin is also the author of the "no more stringent" law, vetoed last year but overridden earlier this month. The measure prevents prevents state environmental standards from being stricter than federal requirements without prior legislative review.

Given that the new head of U.S. EPA has vowed to eliminate a large number of federal environmental regulations, leaving each state to craft its own limitations, this could pose serious challenges in coming years.

Posted by Marcia Oddi on February 23, 2017 09:00 AM
Posted to Indiana Government

Wednesday, February 22, 2017

Environment - "The Pruitt Emails: E.P.A. Chief Was Arm in Arm With Industry"

Coral Davenport and Eric Lipton of the NY Times report today:

WASHINGTON — During his tenure as attorney general of Oklahoma, Scott Pruitt, now the Environmental Protection Agency administrator, closely coordinated with major oil and gas producers, electric utilities and political groups with ties to the libertarian billionaire brothers Charles G. and David H. Koch to roll back environmental regulations, according to over 6,000 pages of emails made public on Wednesday.

The publication of the correspondence comes just days after Mr. Pruitt was sworn in to run the E.P.A., which is charged with reining in pollution and regulating public health. * * *

The companies provided him draft letters to send to federal regulators in an attempt to block federal regulations intended to regulate greenhouse gas emissions from oil and gas wells, ozone air pollution, and chemicals used in fracking, the email correspondence shows.

They held secret meetings to discuss more comprehensive ways to combat the Obama administration’s environmental agenda, and the companies and organizations they funded repeatedly praised Mr. Pruitt and his staff for the assistance he provided in their campaign.

The correspondence points to the tension emerging as Mr. Pruitt is now charged with regulating many of the same companies with which he coordinated closely in his previous position. * * *

The emails show that his office corresponded with those companies in efforts to weaken federal environmental regulations — the same rules he will now oversee.

Please find attached a short white paper with some talking points that you might find useful to cut and paste when encouraging States to file comments on the SSM rule,” wrote Roderick Hastie, a lobbyist at Hunton & Williams, a law firm that represents major utilities, including Southern Company, urging Mr. Pruitt’s office to file comments on a proposed E.P.A. rule related to so-called Startup, Shutdown and Malfunction Emissions. [ILB emphasis] * * *

Despite the large volume of correspondence between Mr. Pruitt’s office and the industry players, the emails are unlikely to cause Mr. Pruitt significant new problems. They do expand on email exchanges or topics that previously had been disclosed.

The Oklahoma attorney general’s office has withheld some documents, asking the judge to determine if they can be exempted from the order requiring their release. There are also other pending open-records requests, from the Center for Media and Democracy, The Times and other news organizations.

This site, run by the Center for Media and Democracy, makes available the previously withheld emails.

See also this Feb. 17th ILB post.

Posted by Marcia Oddi on February 22, 2017 01:38 PM
Posted to Environment

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (5):

In C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens v. Aegis Women's Healthcare, P.C., Brian W. Cook, M.D., Rhonda S. Trippel, M.D., and Lillette (Alice B.) Wood, M.D., a 10-page opinion with amicus briefs filed on both sides, Chief Judges Vaidik writes:

With limited exceptions, a medical-malpractice plaintiff cannot take her case to court until she has submitted a proposed complaint to the Indiana Department of Insurance and received an opinion from a panel of doctors (a “medical review panel”). Once she has made it through the panel process and into court, however, the plaintiff can present any theory of malpractice that (1) was encompassed by the proposed complaint that was before the panel and (2) is related to evidence that was submitted to the panel. McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016), trans. pending.

In the case before us, John and Laura Stevens filed a proposed complaint against Aegis Women’s Healthcare, P.C. and several of its doctors (collectively, “Aegis”) after their daughter was born, via emergency c-section, with various health problems. The medical review panel issued an opinion in favor of Aegis, theory of malpractice is that Aegis waited too long to perform the c-section. The parties agree that this theory fell within the broad allegations in the Stevenses’ proposed complaint but dispute whether there was evidence relating to the theory submitted to the panel. Finding that there was, we reverse the trial court’s grant of summary judgment to Aegis. * * *

The Stevenses ask us to reverse the trial court’s ruling that they did not present their “delayed-c-section” theory to the medical review panel and that they are therefore barred from presenting it in court. On appeal from a grant of summary judgment, we address the issues de novo, giving no deference to the trial court’s decision. * * *

Because evidence relating to the “delayed-c-section” theory was submitted to the medical review panel, and because the proposed complaint encompassed that theory, the Stevenses are entitled to present it in court. See McKeen, 61 N.E.3d at 1261. Therefore, we reverse the trial court’s grant of summary judgment in favor of Aegis.

In Pastor Llobet, M.D. v. Juan Gutierrez , 12-page opinion with amicus briefs filed on both sides, Chief Judge Vaidik writes:
Dr. Pastor Llobet performed an angiogram on Juan Gutierrez, and Gutierrez now claims that Dr. Llobet committed medical malpractice. As required by Indiana’s Medical Malpractice Act, Gutierrez first filed a proposed complaint with the Department of Insurance and presented his case to a panel of doctors (a “medical review panel”). His specific argument to the panel was that Dr. Llobet was negligent in his technical performance of the angiogram. The panel issued an opinion in favor of Gutierrez, who then took the case to court.

Shortly before trial was set to begin, it became apparent that Gutierrez intended to present a second theory of malpractice: that the angiogram was unnecessary, i.e., not “indicated.” At that point, Dr. Llobet turned over records from testing that was performed the day before the angiogram—records that apparently support his position that the angiogram was, in fact, indicated. He also moved to strike Gutierrez’s “angiogram-not-indicated” theory altogether, on the basis that Gutierrez did not argue it to the medical review panel. Gutierrez countered with a motion to bar Dr. Llobet from using the testing records, noting that the discovery deadline had passed and arguing that the records had been requested on multiple occasions. The trial court denied Dr. Llobet’s motion but granted Gutierrez’s motion. As it stands, then, Gutierrez would be allowed to present his “angiogram-not-indicated” theory, but Dr. Llobet would not be allowed to respond with a key piece of evidence contradicting that theory.

Because Gutierrez’s “angiogram-not-indicated” theory was encompassed by the proposed complaint he filed with the Department of Insurance and is related to evidence that was submitted to the medical review panel, we affirm the denial of Dr. Llobet’s motion to strike. However, because we conclude that Dr. Llobet should be allowed to use the pre-angiogram testing records to respond to the allegation that the angiogram was not indicated, we reverse the trial court’s order barring that evidence.

Thomas E. Stettler v. State of Indiana, a 15-page opinion, Judge Baily concludes:
The trial court’s admission of evidence barred by Evidence Rule 404(b) was harmless error. The prosecution did not engage in misconduct during closing arguments, and there was accordingly no fundamental error.
In Ashley N. McFall v. State of Indiana, a 15-page opinion, Chief Judge Vaidik writes:
Ashley N. McFall was convicted of Class A felony dealing in methamphetamine (manufacturing) based in part on videos that a man took of her using his personal cell phone and then showed to a detective. The man, however, did not testify at trial.

In order to authenticate videos under the “silent-witness theory,” there must be evidence describing the process or system that produced the videos and showing that the video is an accurate representation of the events in question. See Ind. Evidence Rule 901(b)(9). Here, however, when the videos were admitted into evidence at trial during the detective’s testimony, there was no showing that the videos had not been altered before they were shown to the detective. However, we find that any error in the admission of the videos under the silent-witness theory was rendered harmless by McFall’s subsequent testimony.

McFall also contends that the evidence is insufficient to support her conviction and that her forty-year sentence is inappropriate. While we find that the evidence is sufficient to support her conviction, we revise her sentence to the advisory term of thirty years given that this is McFall’s first felony conviction and the progress that she has made since her arrest to overcome her addiction and get her life in order.

In Bryce A. Swihart v. State of Indiana, a 9-page opinion, Judge Bailey concludes:
There was sufficient evidence to support Swihart’s conviction. The trial court did not err in determining jail credit time. Affirmed.
NFP civil decisions today (2):

Lisa Baushke v. Eric Miller (mem. dec.)

Han Chong v. Jung Hee Kim (mem dec.)

NFP juvenile and criminal decisions today (10):

Samuel R. White v. State of Indiana (mem. dec.)

Brandon Artis v. State of Indiana (mem. dec.)

Alberto Cruz v. State of Indiana (mem. dec.)

Sarah Speck v. State of Indiana (mem. dec.)

Thomas Yoder v. State of Indiana (mem. dec.)

Asia Marshall v. State of Indiana (mem. dec.)

James Jenkins v. State of Indiana (mem. dec.)

Darrell Berry v. State of Indiana (mem. dec.)

Jason J. Green v. State of Indiana (mem. dec.)

Jay E. Millen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 22, 2017 11:08 AM
Posted to Ind. App.Ct. Decisions

Environment - "U.S. Steel takes pollution control agency to court"

Joseph S. Pete reports today in the NWI Times that:

U.S. Steel has taken legal action against the Minnesota Pollution Control Agency, asking a judge to compel the environmental regulators to hurry up with a long-pending permit.

The Pittsburgh-based steelmaker has been seeking to renew a water permit for its Minnesota Ore Operations Minntac facility, a mine that sends iron ore pellets on freighters over the Great Lakes to Northwest Indiana steel mills, since 1992. U.S. Steel, a major employer in the Region, filed a claim that asks the court to require the Minnesota state agency finally to resolve long-standing issues that have held the permit renewal up for the last 25 years.

U.S. Steel hopes to avoid "significant and unnecessary capital investments in Minntac that could put the facility at a competitive disadvantage, threatening the future viability of the operations and the jobs employed at the operation."

“U.S. Steel has worked cooperatively and successfully with Minnesota's elected leadership on many issues over the years, but we believe filing a Mandamus claim was our only option in this situation,” U.S. Steel Minnesota Ore Operations General Manager Larry Sutherland said. “We felt compelled to take this course of action to ensure specific issues we’ve raised in the past — and MPCA has acknowledged the need to address — are fully resolved so they can be incorporated into our NPDES permit renewal. We recognize the time and resources MPCA needs to do their jobs effectively, and we agree that matters related to our shared environment should be determined by thorough, thoughtful due diligence and scientific evidence."

ILB: A 25-year wait for a permit does seem a long time.

Especially since, if the ILB recalls correctly, the entity continues to operate under the old, much more lenient NPDES standards until the permit is issued.

Posted by Marcia Oddi on February 22, 2017 09:59 AM
Posted to Environment

Ind. Law - "Guns are becoming a running theme in Indiana legislature"

A good story today by Robert King of the Indianapolis Star - some quotes:

The proposal [HB 1071] would enable people shielded by court orders of protection — such as victims of domestic violence — to carry handguns without a license.

* * * In a lopsided 71-26 vote, the Indiana House approved sending the measure to the Senate.

"It is extending the right of protection outside the home for those who need it most," said Rep. Sean Eberhart, R-Shelbyville, author of the bill.

More broadly, Eberhart acknowledged the bill strengthens Hoosiers' Second Amendment right to bear arms. It's a popular theme in the General Assembly, where more than a dozen gun-related bills have been introduced this session, including two others that advanced Tuesday.

Senate Bill 43 would enable Department of Corrections workers to keep guns in their locked cars on prison property. It requires that guns must be kept in a locked case, in a locked car and out of sight. Sen. James Tomes, R-Wadesville, said he made the proposal at the request of corrections employees. The Senate is expected to consider final passage Thursday.

Senate Bill 344
would make it a felony for undocumented immigrants to possess a firearm in Indiana. Sen. Michael Young, R-Indianapolis, said he’s been hearing prosecutors in Southern Indiana report an uptick in gun crimes by immigrants here illegally. Already, it’s a violation of federal law for the undocumented to possess a gun, Young said, but local law enforcement agencies need a means to prosecute such crimes under state law. The bill passed the Senate and now moves to the House.

The zeal for gun rights was evident in Eberhart's bill, which carries an amendment that establishes a summer study committee to evaluate the total repeal of Indiana's gun licensing laws. Rep. Jim Lucas, R-Seymour, added the amendment after a bill he proposed to repeal the gun licensing laws became stuck in committee.

That led ​Democrats to describe Eberhart's bill as being less about domestic violence than it was a “Trojan horse” designed to erode firearms restrictions. They've pointed out that domestic violence experts say women are five times more likely to die in domestic violence situations when a gun is present.

Posted by Marcia Oddi on February 22, 2017 09:42 AM
Posted to Indiana Law

Law - More on President Trump and civil asset forfeiture

Updating this ILB post from Feb. 10th, Jennifer G. Hickey reported for Fox News on Feb. 13th in a story that begins:

The White House has riled the country's civil libertarian wing after President Trump enthusiastically voiced support for a controversial law enforcement tool that allows an individual’s property or assets to be seized without a guilty verdict.

The president weighed in on what's known as "civil asset forfeiture" during an Oval Office meeting last week with sheriffs. The president, who ran on a law-and-order message, said he shared their desire to strengthen the practice and even said he would “destroy” the career of a Texas politician trying to end it.

The comments revived tensions with libertarians who have been fighting the practice under both Democratic and Republican administrations. Already piqued by the selection of former Alabama Sen. Jeff Sessions, a vocal supporter of asset forfeiture, to lead the Justice Department, the Libertarian Party itself condemned the comments.

“It was really disappointing to hear those words. He campaigned on the idea of helping people who are on the low end of the economic spectrum and this [law] disproportionately affects minorities and those who do not have the means to hire an attorney,” Libertarian National Committee Chair Nicholas Sarwark told Fox News.

Sarwark called the practice "immoral," adding that it is simply “government theft of individual property that flips the nation’s legal system on its head.”

Posted by Marcia Oddi on February 22, 2017 09:32 AM
Posted to General Law Related

Ind. Decisions - 7th Circuit issued one Indiana opinion yesterday, a reversal after rehearing en banc

In Alma Glisson v. Correctional Medical Services (SD Ind., Barker), a 36-page, 6-4 opinion, Chief Judge Wood writes:

Nicholas Glisson entered the custody of the Indiana Department of Corrections on September 3, 2010, upon being sentenced for dealing in a controlled substance (selling one prescription pill to a friend who turned out to be a confidential informant). Thirty-seven days later, he was dead from starvation, acute renal failure, and associated conditions. His mother, Alma Glisson, brought this lawsuit under 42 U.S.C. § 1983. She asserts that the medical care Glisson received at the hands of the Department’s chosen provider, Correctional Medical Services, Inc. (known as Corizon) violated his rights under the Eighth Amendment to the U.S. Constitution (made applicable to the states by the Fourteenth Amendment). A panel of this court concluded that Corizon was entitled to summary judgment in its favor. See Glisson v. Indiana Dep’t of Corr., 813 F.3d 662 (7th Cir. 2016). The court decided to rehear the case en banc in order to examine the standards for corporate liability in such a case. We conclude that Glisson presented enough evidence of disputed, material issues of fact to proceed to trial, and we therefore reverse the district court’s judgment. * * *

In closing, we reiterate that we are not holding that the Constitution or any other source of federal law required Corizon to adopt the Directives or any other particular document. But the Constitution does require it to ensure that a well-recognized risk for a defined class of prisoners not be deliberately left to happenstance. Corizon had notice of the problems posed by a total lack of coordination. Yet despite that knowledge, it did nothing for more than seven years to address that risk. There is no magic number of injuries that must occur before its failure to act can be considered deliberately indifferent. See Woodward v. Corr. Med. Servs., 368 F.3d 917, 929 (7th Cir. 2004) (“CMS does not get a ‘one free suicide’ pass.”).

Nicholas Glisson may not have been destined to live a long life, but he was managing his difficult medical situation successfully until he fell into the hands of the Indiana prison system and its medical-care provider, Corizon. Thirty-seven days after he entered custody and came under Corizon’s care, he was dead. On this record, a jury could find that Corizon’s decision not to enact centralized treatment protocols for chronically ill inmates led directly to his death. The judgment of the district court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

[p. 21] SYKES, Circuit Judge, with whom BAUER, FLAUM, and KANNE, Circuit Judges, join, dissenting. * * *

Nicholas Glisson arrived in Indiana’s custody suffering from complicated and serious medical conditions. Some of Corizon’s medical professionals may have been negligent in his care, as Dr. Sommer maintains, and their negligence may have hastened his death. That’s a tragic outcome, to be sure; if substantiated, the wrong can be compensated in a state medical-malpractice suit. Under traditional principles of Monell liability, however, there is no basis for a jury to find that Corizon was deliberately indifferent to a known or obvious risk that its failure to adopt formal protocols in compliance with HCSD-2.06 would likely lead to constitutional violations. Nor is there a factual basis to find that this alleged gap in corporate policy caused Glisson’s death. Accordingly, I would affirm the summary judgment for Corizon.

Posted by Marcia Oddi on February 22, 2017 09:09 AM
Posted to Ind. (7th Cir.) Decisions

Tuesday, February 21, 2017

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (1):

In Otis Sams, Jr. v. State of Indiana , a 20-page opinion, Judge Mathias writes:

Otis Sams (“Sams”) was convicted in Putnam Circuit Court of Level 4 felony possession of methamphetamine. Sams appeals, challenging the warrantless search and seizure of the evidence against him. We conclude that the State did not carry its burden to show that the inventory search of Sams’s truck was sufficiently regulated; therefore, we reverse. * * *

For these reasons, we conclude that the search of Sams’s truck was not sufficiently regulated by standardized police procedures and therefore was pretextual. The vague, conflicting inventory regime of the GPD was not capable of sufficiently regulating the search, but even if it was, the officers’ major deviation from that regime gives rise to an inference of pretext confirmed by other evidence and not overcome by the State.

The trial court abused its discretion by ruling the contrary. All fruits of the inventory search of Sams’s truck were inadmissible. Because no admissible evidence supported Sams’s conviction for possession of methamphetamine, that conviction must be vacated. We therefore vacate Sams’s conviction and remand with direction to grant Sams’s motion to suppress and for any further proceedings required in accordance with this opinion. Reversed.

NFP civil decisions today (3):

Robert Schuyler v. Donna Schuyler (mem. dec.)

Timothy E. Strowmatt v. Keith Butts and Mike Smith (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of T.S., Mother, J.D.W., Father, and J.W., Minor Child, T.S. v. Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (12):

Brian Eldridge v. State of Indiana (mem. dec.)

Larry Lillard v. State of Indiana (mem. dec.)

Kevin Sandifer v. State of Indiana (mem. dec.)

David L. Allen v. State of Indiana (mem. dec.)

John C. McClafferty v. State of Indiana (mem. dec.)

Lazaro Miranda, a/k/a Randall Izquierdo v. State of Indiana (mem. dec.)

Rodney Joe McGuire v. State of Indiana (mem. dec.)

Charles R. Whittington v. State of Indiana (mem. dec.)

Quincy D. Sullivan v. State of Indiana (mem. dec.)

Francisco Esparza-Hernandez v. State of Indiana (mem. dec.)

Brandon M. Gilbert v. State of Indiana (mem. dec.)

Ivan Gooden, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 21, 2017 11:15 AM
Posted to Ind. App.Ct. Decisions

Law - "Trying to Minimize the Misery of Mug Shots"

The ILB has had a number of posts in the past about the online mug shot racket. On Feb. 12th, the entire "The Haggler" column by David Segal in the NY Times was devoted to this issue. From the intro:

For the uninitiated, these are sites that scrape online mug shots from sheriff’s departments around the country and post them. This is a nightmare for the arrestees because when people search for their names online — for a job-related background check, for instance — up pops the image. The sites typically offer to delete it for a fee, anywhere from $20 to $400. This is high-tech extortion, and the victims are often people who have never been convicted of a crime. They were only arrested.

Posted by Marcia Oddi on February 21, 2017 10:59 AM
Posted to General Law Related

Ind. Gov't. - Attorney General Opinions, and Golf Carts

Official opinions of the Indiana Attorney General have been infrequently issued in recent years. Here, for instance, is a list of those issued from 2009 on, averaging less than a half-dozen per year. Here is a list from 2001 to 2008; it is much the same except for 2001, when a dozen were issued.

In past years, many more opinions were issued: for instance, in 1963, there were 64.

The opinions were bound in volumes; a set ranging over the years may be found in the Indiana Supreme Court library.

IUPUIScholarWorks Repository has an online collection that includes volumes of the Indiana Attorney General Opinions from 1933-1976 and will eventually include back to 1921.

There may be a gap in online availability from 1977 through 2000.

HeinOnline, a subscription legal publication service, has Indiana's Attorney General opinions from 1873-2016.

This century's decline in AG opinions may be turning around. Already this year, AG Curtis Hill has issued two opinions. Both are engaging and well-written.

The ILB was particularly interested in Official Opinion 2017-1, "RE: Municipal Regulation of Golf Carts," a topic the ILB has followed closely since 2004.

Posted by Marcia Oddi on February 21, 2017 09:57 AM
Posted to Indiana Government

Ind. Gov't. - "Bills that allow police to take DNA upon arrest advance"

Madeline Buckley of the Indianapolis Star reports in a long story:

Two bills that would allow police to take DNA samples from people who are arrested, but not yet convicted, are steadily advancing — but lawmakers have added safeguards for people who may have been falsely accused.

In Indiana, law enforcement officials can only enter DNA samples into a national database upon a felony conviction. But some lawmakers are pushing for a lower threshold, allowing police to take a DNA sample when they make a felony arrest.

Bills similar to those proposed this session — House Bill 1577 and Senate Bill 322 — have failed to generate support in the past, but the issue gained traction last year when DNA from an Ohio database that includes arrestees helped solve both the slaying of an elderly Zionsville man in November and attacks on two Indianapolis police stations.

Posted by Marcia Oddi on February 21, 2017 09:50 AM
Posted to Indiana Government

Ind. Courts - Johnson Co. Judge Cynthia Emkes announces retirement

Michele Holtkamp of the Johnson County Daily Journal reports today in a long story:

Johnson County’s longest-serving judge has decided to resign from her post in Superior Court 2, where she has overseen hundreds of trials and issued sentences on crimes ranging from drunk driving to death penalty cases.

Superior Court 2 Judge Cynthia Emkes will resign effective April 28, with nearly four years left in her term. She is the county’s longest-serving judge and first female judge and has presided over her court since 1987.

She announced her decision to retire before the end of her term this week.

“I’ve thought about retiring in the past; however, my decision always came down to the fact that I didn’t want to stop doing something I loved and that I would miss terribly,” Emkes said.

“Given all the same considerations now, I’ve concluded it’s not possible to continue my judicial service and at the same time give due consideration to my family and health needs. I pray that I will strike a happy medium serving in part-time status as a senior judge,” she said, referring to a state program where former or retired judges fill in for full-time judges or work on certain cases.

Gov. Eric Holcomb will select her replacement. * * *

She had been re-elected in 2014 to a six-year term, which means the judge appointed to replace her will serve through the end of 2020.

Posted by Marcia Oddi on February 21, 2017 09:42 AM
Posted to Indiana Courts

Ind. Decisions - "Appeals court overturns $550,000 judgment against Hammond schools"

The Court of Appeals opinion Feb. 14th in School City of Hammond District v. Chad Rueth (ILB summary here, 3rd case) is the subject of this story by Dan Carden in today's NWI Times. From the story:

The Indiana Court of Appeals has overturned a $550,000 judgment against the School City of Hammond after determining that a former Gavit High School athletic director was neither defamed nor blacklisted while seeking a similar job elsewhere.

Chad Rueth sued the school district after he wasn't hired in 2012 for the athletic director vacancy at Hammond's Bishop Noll Institute, his high school alma mater.

According to court records, Rueth claimed that individuals connected to Gavit indirectly communicated with the BNI hiring committee in a way that suggested Rueth was "a bad athletic director."

Specifically, Gavit's principal was planning to make Rueth reapply as athletic director, and compete against other applicants for the post, once his one-year contract expired on June 15, 2012.

In a 3-0 decision, the appeals court found any such communication did not meet the legal burden necessary to prove defamation, as the information was not officially disclosed by the school district, was true and also shared with the hiring committee by Rueth himself.

Posted by Marcia Oddi on February 21, 2017 09:36 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Does vote on mega farms stink?"

Kaitlin L Lange reports in today's Indianapolis Star:

When it came time last week to potentially make it easier for existing Indiana mega farms to expand, Rep. Sue Errington decided not to vote on the issue to avoid a potential conflict of interest.

The Muncie Democrat and her family are partners with Creighton Brothers, a large chicken farm in Warsaw. She said she recused herself from voting because she financially benefits from the farming business, also known as a confined animal feeding operation.

But a colleague with similar interests in a large hog farm in White County had no qualms about voting for the legislation.

Rep. Don Lehe, R-Brookston, said he didn’t see it as a conflict even though he owns Lehe Farms, which has a confined feeding operation permitted for up to 1,000 nursery pigs and 1,890 finishing pigs. He said House ethics rules allow him to vote on the legislation because it doesn't uniquely benefit him.

A government watchdog said the varied approaches to ethical issues at the Statehouse show the shortcomings of allowing lawmakers to police themselves.

"There's way too much self-enforcement when it comes to these conflict of interest laws for these legislators," said Julia Vaughn , policy director for Common Cause Indiana. "There's often this very wide degree of variation in how people interpret their own conflicts."

She said it seems obvious that legislation that likely loosens requirements for animal farms should be considered a conflict for any lawmaker who owns such a farm. * * *

House Speaker Brian Bosma, R-Indianapolis, said he doesn’t think it was necessary for either Lehe or Errington to excuse themselves from voting.

"With a citizens legislature, (there are) veterans who have to deal with veterans matters, we have real estate agents that are dealing with real estate matters,” Bosma said, “and as long as there is not a unique positive impact on that individual, our rules are very clear that it’s not a conflict, and they’re actually required to vote."

The House Ethics Committee, composed of lawmakers, exists to resolve ethics concerns among colleagues and offers advisory or formal opinions on ethical issues.

But Lehe said he did not consult the panel for guidance on House Bill 1494, which could make it easier for existing confined feeding operations to expand — and limits the number of people involved in such farms that would be required to disclose any past environmental violations.

Lehe’s vote came Wednesday during a meeting of the House Agriculture Committee, which endorsed the measure on a 7-3 vote. The legislation is now eligible for consideration by the full House. * * *

House Bill 1494 would seem to provide an occasion for lawmakers who own mega farms to take stock, Vaughn said.

The measure would allow owners to expand their feeding operations by using a permit amendment, instead of applying for a whole new permit. Usually when people apply for a confined feeding permit, they have to inform those living less than a half mile away. * * *

Under the measure, environmental reporting requirements also would be eased. CFO operators would only have to disclose environmental violations in the last five years of the owner and those directly in charge of the environmental aspect of the operation. Other senior management and board members no longer would have to disclose any of their environmental violations.

Vaughn said the legislation — and lawmakers' opposing views on who should be allowed to vote on it — show that current ethics laws are unclear and too open to interpretation.

Posted by Marcia Oddi on February 21, 2017 09:22 AM
Posted to Indiana Government

Monday, February 20, 2017

Ind. Decisions - Supreme Court issues judicial disciplinary action

In In the Matter of the Honorable T. Edward Page, Senior Judge, a 2-page, 5-0, per curiam ruling, the Court writes:

Respondent was arrested and subsequently charged in Porter Superior Court with Class A misdemeanor Operating a Vehicle While Intoxicated Endangering a Person, Class C misdemeanor Operating a Vehicle While Intoxicated, and Class A misdemeanor Operating a Vehicle with an Alcohol Concentration Equivalent to .15 or More. On November 15, 2016, he pleaded guilty under a plea agreement to Operating a Vehicle While Intoxicated, a Class C misdemeanor, and the State dismissed the remaining charges. The trial court entered judgment of conviction against on the Cmisdemeanor offense and sentenced Respondent to 60 days in jail, with 59 days suspended and credit for 1 day served in jail. The court also placed Respondent on unsupervised probation for 180 days, imposed an ignition interlock requirement on his driving privileges until December 7, 2016, and imposed fines and court costs of $883.50.

Respondent and the Commission agree that by being arrested and convicted for Operating a Motor Vehicle While Intoxicated, Respondent violated Code of Judicial Conduct Rule 1.1 requiring judges to comply with the law, and Rule 1.2 requiring judges to avoid impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary.

The parties cite no facts in aggravation. In mitigation, they agree that Respondent immediately self-reported his misconduct and voluntarily contacted the Judges and Lawyers Assistance Program (JLAP); that he is compliant with all JLAP requests; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. They also agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.

Accordingly, T. Edward Page, Senior Judge, is hereby reprimanded. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. The costs of this proceeding are assessed against Respondent.

See earlier ILB post here, from Jan. 4, 2017.

Posted by Marcia Oddi on February 20, 2017 05:01 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Justice Roger O. De Bruler, 82, died Feb. 13th

From the Indianapolis Star obituary:

The Honorable Roger O. De Bruler, 82, Indianapolis, Indiana died on February 13, 2017, with his family at his side. He was born in Evansville on August 5, 1934 to Owen and Mary Lucille De Bruler. Justice De Bruler proudly served his country in the United States Army Intelligence Corp during the Cold War. Roger was a dedicated public servant for the State of Indiana for 33 years. He was appointed Steuben County Circuit Court Judge by late Governor Roger Branigin, and later served as the esteemed Chief Justice of the Indiana Supreme Court for some of his 27 years on that court. He was a graduate of Bosse High School in Evansville, Indiana University, and Indiana University School of Law in Bloomington. He was a member of Christ Church Cathedral on Monument Circle in Indianapolis.

While seated on the Supreme Court in 1971, Roger and his wife Karen decided that the area surrounding the James Whitcomb Riley Home was where they wanted to build a new home and raise their family of four children. Neighbors in what is now known as Lockerbie Square agree that their bold move as the first new construction in the area launched a turn-around in the direction of development of that neighborhood and served as a beacon for further development of downtown living. * * *

Services will be held at Christ Church Cathedral at 125 Monument Circle, Indianapolis on Tuesday, February 21st at 11:00 a.m. Interment will be at the De Bruler family plot at Oak Hill Cemetery, Evansville, Indiana.

A related story appeared in the Indianapolis Star on Feb. 3rd - "Historic Lockerbie cottage for sale." The home was owned until last summer by:
Angela Stroud, who had lived there for nearly 35 years with her late husband, lawyer Ken Stroud. Ken had bought the house in 1972 with his first wife, Diana Stroud, who died six years later. Ken died in August 2015. * * *

When Ken and Diana Stroud moved in, Lockerbie Square was at the beginning of its rebirth as a historic urban neighborhood. Ken helped write the bylaws of the newly formed Indianapolis Historic Preservation Commission, along with his neighbor and colleague, Indiana Supreme Court Justice Roger DeBruler.

Professor Stroud, who earlier clerked for Justice DeBruler, died in August of 2015. Here is the ILB post linking to the relevant stories.

Posted by Marcia Oddi on February 20, 2017 02:09 PM
Posted to Indiana Courts

Ind. Gov't. - "Should you have to pay $20 an hour for a public records search?"

This May 10, 2015 ILB post began:

On Friday Governor Pence vetoed SEA 369, the bill which, inter alia, "would allow government agencies to charge a searching fee for record requests that take over two hours." This April 29th ILB post discussed the provision, which was slipped into the bill via a conference committee report.

The language had originally been buried within SB 500, a bill on education deregulation, until it was deleted during the course of the session.

As one can see from reading the digest of the CCR on SB 369, the addition of the search fee language ultimately became a poison pill to what was otherwise a bill with many good new transparency provisions that have now died with it. Here is the final, enrolled printing of SEA 369, as it was presented to the governor.

The language allowing agencies to charge a fee for any time in excess of two hours was supported by the Hoosier State Press Association both this year and last year, apparently as a trade-off for other new, useful language that would have provided that:

... a public agency shall provide a public record in electronic form or in paper form, at the option of the person making the request for a public record.
It is unclear why such a trade-off, or bargain, was necessary ...

Regardless, another noteworthy item about the veto of SEA 369 by Governor Pence was the manner of its veto announcement...

It was by Twitter.

This weekend, Tony Cook of the Indianapolis Star reported:
The cost to access public records could rise sharply under a bill the Indiana House approved Thursday. House Bill 1523 would allow state and local governments to charge up to $20 an hour for public record searches. Those fees would apply when government officials spend more than two hours searching for a record requested by journalists or members of the public.

The House voted 62-25 in favor of the measure. It now goes to the Senate. * * *

Rep. Karen Engleman, said that as a former Harrison County auditor, record requests could consume a lot of staff time.

“Some people come in and ask for hours and hours of research to be done,” Engleman said. “We don’t get paid anything for doing that.”

Opponents argued that citizens shouldn’t be required to pay for records created and maintained with their own tax money. They also fear the measure could allow government agencies to charge large fees for information they want to hide.

“I just think as a matter of principle these records belong to the taxpayers. Government records are the people’s records. The employees in whatever level of government are paid for by the taxpayers. They are our employees. They work for us,” said Rep. Matt Pierce, D-Bloomington. “To have to come in and pay to get access to your records I just think is not a good principle, not a good policy.”

He cited a case in Florida where a county sheriff’s office charged a newspaper $339,000 for a request seeking emails containing gay slurs. Other counties quoted as little as $37 for the same request.

“I think you’re going to open it up to where people come in that are looking for stuff the government doesn’t want them to see, they’re going to get a really high fee,” Pierce said.

State law currently allows local governments and most state agencies to charge a fee for actual copying costs, but not for the time employees spend gathering records.

ILB Comments: The fiscal impact note for this bill says:
The amount of fees that may be collected under the bill is indeterminable. The impact will depend upon whether agencies assess these fees, and the extent to which employees are engaging in public records searches that qualify for the assessment of fees.
In short, there is no evidence, other than anecdotal, that a bill like this is needed to prevent perceived abuses by the public of their right to access governmental records.

Perhaps there should be some sort of research done before a law like this is enacted, such as requiring governmental officials to track the time it takes them now to fill public records requests. This might reveal where governmental processes currently are operating inefficiently, bottlenecks, duplication, etc.

Alternatively, the proposal should include a way for the public to challenge the amount assessed for a public records request. Under this bill there is no requirement, or indeed, any encouragement for a public official to fill a records request in the most efficient way possible.

Posted by Marcia Oddi on February 20, 2017 12:18 PM
Posted to Indiana Government

Ind. Courts - "Child custody cases straining court resources"

That is the heading to a South Bend Tribune story this weekend by Virginia Black. The subhead: "An ongoing conflict more damaging to kids than the divorce itself." Some quotes:

Lingering custody disputes in divorce and paternity cases not only consume already-strained court resources, judges say, but they also take a toll on the children caught in the middle.

Mediation and parenting programs that encourage parents to agree on shared custody have made great improvements in recent years, St. Joseph Chief Judge David Chapleau says.

Still, Indiana statistics show the average divorce case without children takes 39 minutes of a judge's time in hearings, case review and writing orders, he says.

By contrast, a typical paternity case will consume 146 minutes, and a divorce with children, 259 minutes.

In January, new Indiana Supreme Court rules went into effect, establishing new case designations for local courts to better track the differences in divorces that involve children and those that do not.

"Mediation's made a big difference," Chapleau says of such disputes.

Still, contentious cases abound. And parents at war with each other can make it difficult to determine what's best for the children.

"It can be poisonous," Judge Chapleau says. "It can be difficult to hear all the dirty laundry aired."

In Indiana, as in many other states, judges have the right to determine what's best for children when custody is an issue. But awarding sole physical custody to one parent — usually the mother — while offering the other parent limited parenting time is the default position.

Since 2015, a growing number of states have been considering legislation that would encourage children's time to be split between both parents as equally as possible, according to Pew Charitable Trusts reports.

Indiana Sen. Jon Ford, a Republican in Vigo County, introduced Senate Bill 36 in this year's General Assembly, which would establish "a rebuttable presumption that joint physical custody is in the interests of the child." The bill suggests an every-other-week arrangement for children to live with each parent.

Ford did not respond to several requests for information. His bill was assigned to the Senate Committee on Civil Law but has not been heard.

There is much more in the story.

Posted by Marcia Oddi on February 20, 2017 12:08 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

Termination: CB v. Indiana Department of Child Services, et al. (mem. dec.)

NFP juvenile and criminal decisions today (0):

Posted by Marcia Oddi on February 20, 2017 11:53 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Feb. 17, 2017

Here is the Clerk's transfer list for the week ending Friday, April 15, 2017. It is two pages (and 24 cases) long.

One transfer was granted last week:

  • J.M. [sic.] v. State of Indiana - This was a May 24, 2016 COA NFP decision. The Supreme Court granted transfer, with opinion, on Feb. 15th, in a case identified as J.D.M. v. State - ILB summary here.

Posted by Marcia Oddi on February 20, 2017 11:34 AM
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/20/17):

Thursday, February 23

  • 9:00 AM - Gregg Appliances, Inc. and HH Gregg, Inc. v. Dwaine Underwood, on behalf of himself and all others similarly situated (49S02-1701-PL-00025) Senior managers of Gregg Appliances filed a class action alleging they are owed bonuses for fiscal year 2012 because Gregg agreed to pay bonuses based on a measure that includes Gregg’s one-time receipt of life insurance proceeds. On the parties’ cross-motions for summary judgment, the Marion Superior Court denied Gregg’s motion and granted the managers’ motion. The Court of Appeals reversed and remanded with instructions to enter summary judgment for Gregg. Gregg Appliances, Inc. v. Underwood, 57 N.E.3d 831 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a 7/22/16 COA opinion re calculation of bonuses. COA reversed trial court and granted summary judgment for Gregg.

  • 9:45 AM - Indiana Alcohol and Tobacco Commission v. Spirited Sales, Inc. (49S00-1611-PL-00614) Spirited Sales, LLC applied for a permit to wholesale liquor in Indiana. The Indiana Alcohol and Tobacco Commission denied Spirited’s application on the basis it would create a prohibited interest in conflict with Indiana Code section 7.1-5-9-4. The Marion Superior Court reversed, and ordered the Commission to issue Spirited’s permit. The Indiana Supreme Court granted transfer pursuant to Appellate Rule 56(A) and has assumed jurisdiction over the appeal.

    ILB: The Supreme Court granted Emergency (56A)transfer of the trial court decision on Nov. 22, 2016. Justice Massa did not participate. For more information, see these Aug. 29th and a second Aug. 29th ILB posts, the latter of which includes the trial court ruling.

Next week's oral arguments before the Supreme Court (week of 2/27/17):

Thursday, March 2

  • 9:00 AM - William Taylor v. State of Indiana (06A01-1511-PC-01876) A Boone County jury convicted William Taylor of two counts of Class A felony child molesting, and he received an eighty-year sentence. Taylor’s conviction and sentence were affirmed on direct appeal. On Taylor’s petition for post-conviction relief, the Boone Circuit Court found his trial counsel rendered deficient performance for failing to communicate a plea offer to Taylor, but denied post-conviction relief, finding Taylor suffered no prejudice from counsel’s failure. The Court of Appeals affirmed. Taylor v. State, No. 06A01-1511-PC-1876 (Ind. Ct. App. Oct. 28, 2016). Taylor has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This is an Oct. 28, 2016 NFP COA opinion.

  • 9:45 AM - T.A. v. State of Indiana (49S04-1702-JV-00069) T.A. petitioned to expunge records from six juvenile delinquency petitions created between 2008 and 2013. After his expungement petition had been filed, but before the scheduled hearing, the State filed a new criminal charge against T.A. The Marion Superior Court then denied the expungement because of this pending criminal charge. A unanimous panel of the Court of Appeals reversed, holding that the plain language of Indiana Code section 35-38-9-1 required the trial court to consider the merits of the expungement petition only as of the filing date. T.A. v. State, 62 N.E.3d 436 (Ind. Ct. App. 2016). The Indiana Supreme Court has granted transfer pursuant to Appellate Rule 56(A) and has assumed jurisdiction over the appeal.

    ILB: This was an Oct. 19, 2016 COA opinion (3rd case) re whether the juvenile court was permitted to consider T.A.’s post-petition criminal charge in granting a petition for expungement. The now-vacated COA opinion reversed the denial. The Supreme Court granted Emergency (56A) transfer of the trial court decision on Feb. 9, 2017.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/20/17):

Friday, February 24

  • 12:00 PM - Elizabeth (Newman) Lewis v. David Newman (67A05-1609-DR-01981) When the marriage of David Newman and Elizabeth Newman (now Lewis) was dissolved in 2008, the trial court incorporated the parties’ property settlement agreement which provided, in relevant part, that David would pay spousal maintenance in a fixed amount each month to Elizabeth until Elizabeth either remarries or becomes eligible to receive payments from David’s retirement account, whichever occurs first. The agreement also provided that in addition to the $1,000.00 per month spousal maintenance payment, Elizabeth was entitled to 25% of the net profits of David’s book royalties. In 2016, David filed a motion to terminate his spousal maintenance obligation, alleging Elizabeth had remarried. Elizabeth agreed the $1,000 monthly payment should be terminated, but disagreed the book royalty payments constituted spousal maintenance that should also be terminated. The trial court first issued an order terminating David’s $1,000 monthly obligation but ordering the book royalty payments to continue. David filed a motion to correct error following which the trial court issued a corrected order also terminating the book royalty payments. Elizabeth now appeals, arguing the trial court improperly modified the parties’ property settlement agreement when it determined the book royalties were to be considered spousal maintenance rather than a distinct category of property. The Scheduled Panel Members are: Judges Baker, Robb, and Barnes. [Where: Culver Cove Resort, Culver, IN]
Next week's oral arguments before the Court of Appeals (week of 2/27/17):

Thursday, March 2

  • 1:00 PM - Louis Bell v. State of Indiana (49A05-1606-CR-01390) Officer Justin Gough observed Louis Bell riding his bicycle while trailing another bicycle by holding its handlebars. Neither bicycle had proper lighting. Officer Gough asked Bell if he could talk to him, and Bell complied. After observing a bulge in Bell’s front pocket and a screwdriver in his back pocket, Officer Gough performed a pat down on Bell. Officer Gough discovered a handgun and several types of drugs and related paraphernalia. Bell did not have a license for the gun. The State charged Bell with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 6 possession of a narcotic drug, Level 5 possession of cocaine, Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia. Bell filed a motion to suppress evidence, arguing the pat-down was unconstitutional. The trial court denied the motion and found Bell guilty as charged by a bench trial. Bell appeals his conviction, asserting the trial court abused its discretion when it denied his motion to suppress. The Scheduled Panel Members are: Judges Kirsch, May and Robb. [Where: Ivy Tech Community College, Lafayette, IN]
Friday, March 3
  • 11:00 AM - Warner, et al. v. Chauffeurs, Teamsters & Helpers Local Union No. 414 (02A04-1608-PL-02017) In 2015, the Drivers filed a complaint in the trial court against SRM and the Union, alleging that the Union was receiving their union dues in violation of Indiana’s right-to-work law (“the Act”) and seeking recovery of dues already paid under a theory of money had and received. At the same time, Plaintiff Warner filed a claim of unfair labor practice with the NLRB. In June of 2016, the NLRB dismissed Warner’s claim. In July of 2016, the trial court dismissed the Drivers’ claims, ruling that (1) they had failed to state a claim upon which relief could be granted because although the Act had rendered the union security clause in the CBA null and void, it did not affect their previously-executed dues check-off authorizations and (2) their claims were preempted by federal law in any case. The Drivers contend on appeal that the trial court erred in granting the Union’s motion to dismiss because they were not required to prove the existence of a union security clause in order to maintain their cause of action and the relevant federal law contains exceptions for state-enacted right-to-work laws. ​ The Scheduled Panel Members are: Judges Najam, May and Bradford. [Where: Indiana University Maurer School of Law, Moot Court Room, Bloomington, IN]

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

Past Court of Appeals oral arguments which have been webcast are accessible here.


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

Posted by Marcia Oddi on February 20, 2017 08:00 AM
Posted to Upcoming Oral Arguments

Saturday, February 18, 2017

Ind. Decisions - 7th Circuit decided one Indiana case yesterday

In Indianapolis Airport Authority v. Travelers Property Casualty Co (SD Ind., Magnus-Stinson), a 29-page opinion, Judge Hamilton writes:

In this diversity-jurisdiction case, the Indianapolis Airport Authority sued Travelers Property Casualty Company of America over Travelers’ partial denial of a claim for coverage arising from an airport construction accident that occurred in 2007. On motions for summary judgment, the district court interpreted the insurance contract in favor of Travelers on several issues. Following summary judgment, the Airport Authority’s case was narrowed to a claim for unreimbursed inspection costs associated with the incident. Then, two weeks before trial was set to begin on that claim, the district court entered an evidentiary order that effectively precluded the Airport Authority from proving that sole remaining claim. The Airport Authority sought entry of final judgment so that it could appeal, and the district court entered judgment in Travelers’ favor. On the Airport Authority’s appeal, we affirm in part and reverse in part the district court’s summary judgment order, and we vacate the evidentiary order for further consideration in light of this opinion.

Posted by Marcia Oddi on February 18, 2017 10:30 AM
Posted to Ind. (7th Cir.) Decisions

Friday, February 17, 2017

Courts - More on: "Louisville panhandling law struck down"

Updating this ILB post from Oct. 14, 2016, about the action of a Jefferson District Court judge, Jason Riley reports today in a WDRB Louisville story headed "Kentucky Supreme Court strikes down Lexington panhandling law as unconstitutional." From the start of the story:

LOUISVILLE, Ky. (WDRB) – The Kentucky Supreme Court has ruled that a Lexington law against panhandling is an unconstitutional violation of free speech.

The landmark ruling - which could affect similar laws across the state - stems from the case of Dennis Champion, who was jailed in 2015 for violating a Fayette County ordinance prohibiting “begging and soliciting upon public streets.”

Champion, according to court documents, was caught standing at an intersection holding a sign that read “begging for alms” in December 2014.

On Thursday, the high court ordered the case be dismissed because the law “unconstitutionally abridges freedom of speech under the First Amendment.”

“Despite the societal stigma associated with panhandling, this form of expression is widely considered to be constitutionally protected speech,” the high court ruled in a unanimous decision. “… Freedom of speech does not exist for us to talk about the weather; to accept this liberty is to welcome controversy and to embrace discomfort.” * * *

A Jefferson District Court judge last year ruled Louisville's panhandling law unconstitutional, but the order is only for his court.

Here, via WDRB, is the 14-page, Feb. 16, 2017 Supreme Court of Kentucky opinion in Champion v. Kentucky.

Posted by Marcia Oddi on February 17, 2017 04:53 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (6):

In re the Termination of the Parent-Child Relationship of M.L. and A.L. (Minor Children), and A.H. (Mother) v. Indiana Department of Child Services (mem. dec.)

In the Matter of: L.G. (Minor Child), Child in Need of Services, and M.S. (Mother) & C.G. (Father) v. The Indiana Department of Child Services (mem. dec.)

Krysten A. Overly v. Mark E. Overly (mem. dec.)

James Showalter v. Tanya Ray (mem. dec.)

Steak `N Shake No. 315 v. Ronald E. Smith (mem. dec.)

Christen Hartsock v. Donald Fulkerson (mem. dec.)

NFP juvenile and criminal decisions today (5):

Victor Gersdorff v. State of Indiana (mem. dec.)

Danny L. Hersley, Jr. v. State of Indiana (mem. dec.)

Nicholas Edward Daugherty v. State of Indiana (mem. dec.)

Corey L. Spurlock v. State of Indiana (mem. dec.)

Clinton Bryan Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 17, 2017 01:34 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues 1 today

In Termination: VG, et al. v. Indiana Department of Child Services, an 8-page, 5-0 opinion, Chief Justice Rush writes:

Few liberties are as central to our society as the right of parents to raise their children. Our General Assembly has thus set a high bar for terminating parental rights—requiring a termination petition to allege four defined elements and commanding dismissal when DCS fails to prove each element by clear and convincing evidence.

The first required element establishes three waiting periods to give parents time to reunify with their children, and bars DCS from seeking termination until one of those three periods has passed. Here, DCS failed to allege the only one of those waiting periods that had in fact passed— that Father’s daughters had been removed from him for at least six months under a dispositional decree. Finding this missing element fatal to DCS’s petitions to terminate Father’s parental rights, we reverse and remand. * * *

We realize that DCS’s failure to allege the six-month waiting period was likely a mere drafting error. But a statutory requirement—even one that seems minor or technical—is still a requirement. And here, where that requirement protects the fundamental rights of parents, it takes on particular importance. Terminating Father’s parental rights in spite of this pleading defect therefore requires reversal.

Conclusion. DCS failed to prove the waiting periods it alleged and failed to allege the waiting period it could have proved. We thus reverse the termination of Father’s parental rights regarding his daughters, Bi.B. and Br.B., and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on February 17, 2017 01:23 PM
Posted to Ind. Sup.Ct. Decisions

Law - President Trump's executive orders and memoranda

Gregory Korte of USA Today has had several valuable stories recently on President Trump's executive orders.

This story, from Feb. 14th, "White House posts wrong versions of Trump's orders on its website," is eye-catching in itself, but also links to the text of Trump's recent orders. From the story:

By law, the Federal Register version is the legally controlling language. But it can often take several days for the order to be published, meaning that the public must often rely on what the White House puts out — and that's sometimes inaccurate.
Reading some of the executive orders reminds the ILB of the famous Truman quote about President Eisenhower, as set out in this prescient, June 3rd, 2016 (worth-reading in full) NYT opinion piece by Eric Posner ("And if Elected: What President Trump Could or Couldn’t Do"):
Mr. Trump’s biggest obstacle to vast power is not the separation of powers but the millions of federal employees who are supposed to work for him. Most of these employees have a strong sense of professionalism and are dedicated to the mission of their agency. They don’t take kindly to arbitrary orders from above. As President Harry Truman said ahead of Dwight D. Eisenhower’s presidency: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen.”
With that in mind, look at the text of this "presidential memorandum on a plan to defeat the Islamic State," directing the Secretary of Defense to "develop the Plan."

See also: On Jan. 24th, reporter Korte published this story, headed "Presidential memoranda vs. executive orders. What's the difference?"

Posted by Marcia Oddi on February 17, 2017 09:41 AM
Posted to General Law Related

Law - Repealing federal regulations generally difficult

It is not easy to repeal a federal regulation, as Howard Shelanski, who was administrator of the federal Office of Information and Regulatory Affairs from 2013 to 2017, explains in this Washington Post opinion piece. It begins:

Since taking office, President Trump has signed executive orders instructing officials to reconsider regulation of the financial sector and requiring executive departments and agencies to find two rules to repeal for every new one they issue. But translating those promises into action is going to be a lot harder than the president thinks.

Here’s the rub: It generally takes a new rule to change or remove a regulation that is already on the books. Under long-standing Supreme Court precedent and a law known as the Administrative Procedure Act, agencies must provide a reasoned explanation when they want to change established policy.

Put another way, if an agency wants to abandon a rule it already has in place, it must justify that decision by going through the painstaking process of providing an opportunity for public comment and building a factual record subject to review by the courts. Agencies then have to show that their original decisions were either wrong or have been superseded by events. The law thus requires agencies to be both transparent and accountable, not just in issuing new rules but also in repealing existing rules. The more recent the regulation suggested for repeal, the harder that task tends to be.

See also this Jan 27th ILB post: "Trump's regulation freeze makes losers out of some U.S. businesses."

Posted by Marcia Oddi on February 17, 2017 09:18 AM
Posted to General Law Related

Courts - "On eve of confirmation vote, judge orders EPA nominee to release thousands of emails"

The Washington Post is reporting today, in a story by Brady Davis:

An Oklahoma judge on Thursday ordered Scott Pruitt, the state’s attorney general and President Trump’s nominee to lead the Environmental Protection Agency, to turn over thousands of emails related to his communication with the oil, gas and coal industry.

The Center for Media and Democracy has been seeking the release of Pruitt’s correspondence with fossil-fuel representatives under public records laws for more than two years. The group filed suit over Pruitt’s refusal to turn over the documents and requested the expedited hearing that led to the judge’s decision, which was first reported by E&E News.

The ruling by District Court Judge Aletia Timmons, who said there had been “an abject failure to provide prompt and reasonable access to documents requested,” came a day before the Senate is expected to vote on confirming Pruitt to head the EPA, an agency that he has sued repeatedly during the Obama years.

Timmons gave the attorney general’s office until Tuesday to release the records, meaning they likely won’t come to light until after he is sworn in to his new position.

From the Huffington Post:
Judge Aletia Haynes Timmons of the District Court of Oklahoma County ruled that the attorney general’s office will have until Tuesday to turn over more than 2,500 emails and other documents. The watchdog group Center for Media and Democracy, with legal representation from the American Civil Liberties Union, had filed a lawsuit against Pruitt earlier this month, alleging that his office had violated Oklahoma’s open records law.
From E&E News:
The Center for Media and Democracy sued for his emails. The attorney general's office will have to either turn them over to the group or provide them to the court for inspection, Judge Aletia Haynes Timmons [a state district court judge] said after a 25-minute hearing.

Posted by Marcia Oddi on February 17, 2017 09:04 AM
Posted to Courts in general | Environment

Law - The end of public records, and maybe the end of history?

Adding to these recent stories quoted in a Feb. 2nd ILB post:

  • "Federal workers turn to encryption to thwart Trump: Agency employees are turning to Signal and other incognito forms of communication to express their dissent." Politico.

  • "Trump aides' use of encrypted messaging may violate records law: Using disappearing messages in government could be a "recipe for corruption," says one expert." ZDNet.
here are two more:
  • "The Risks of Sending Secret Messages in the White House: Communication apps with disappearing text could run afoul of presidential records laws—and might not be as secure as they seem. The Atlantic. It begins:
    By some accounts, the deluge of leaks detailing the hurdles and setbacks that have troubled the first weeks of the Trump administration have provoked panic among its highest ranks—and prompted top officials to try to identify the leaky staffers. President Trump has tweeted his dismay at the leaks several times, once calling them “illegal.” That’s why, according to a report in The Washington Post, some White House employees have turned to technology to cover their tracks.

    The app of choice: Confide, a platform that encrypts messages end-to-end, so that they can only be seen by the sender and the recipient, and deletes every trace of a message as soon as it’s read. (Axios reported last week that Confide has also been taken up in larger Republican circles looking to avoid the fate of Democrats who had their emails hung out to dry by WikiLeaks.)

    There are two problems with using Confide to chat with your colleagues in the White House. One has to do with digital security; the other with the law of the land.

  • "House members: EPA officials may be using Signal to 'spread their goals covertly': Encrypted messaging app gains new currency under the Trump administration." ArsTechnica. It begins:
    Two Republican members of Congress sent a formal letter Tuesday to the Environmental Protection Agency’s Office of the Inspector General, expressing concern that “approximately a dozen career EPA officials” are using the encrypted messaging app Signal to covertly plan strategy and may be running afoul of the Freedom of Information Act.

    The open source app has gained renewed interest in the wake of the election of President Donald Trump.

    As Ars has reported previously, all Signal messages and voice calls are end-to-end encrypted using the Signal Protocol, which has since been adopted by WhatsApp and other companies. However, unlike other messaging apps, Signal’s maker, Open Whisper Systems, makes a point of not keeping any data, encrypted or otherwise, about its users. (WhatsApp also does not retain chat history but allows for backups using third-party services, like iCloud, which allows for message history to be restored when users set up a new device. Signal does not allow messages to be stored with a third party.)

And from Lifehacker, Thorin Klosowski provides "The Privacy Enthusiast's Guide to Using an iPhone."

Posted by Marcia Oddi on February 17, 2017 08:37 AM
Posted to General Law Related

Thursday, February 16, 2017

Ind. Decisions - Tax Court decides one today

In The University of Phoenix, Inc. v. Indiana Department of State Revenue, a 9-page order, Judge Wentworth writes:

After having successfully defended against and prosecuted discovery enforcement motions either in whole or in part, both the University of Phoenix, Inc. and the Indiana Department of State Revenue claim that an award of expenses pursuant to Indiana Trial Rule 37(A)(4) is warranted. The Court agrees. * * *

The Court, having considered the requirements of Trial Rule 37(A)(4) and the parties’ evidence, arguments, and levels of non-cooperation, awards the University a reimbursement for its expenses in the amount of $9,850.50 for successfully resisting the Department’s second motion for protective order. See Shelby’s Landing-II, Inc. v. PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship, 65 N.E.3d 1103, 1112 (Ind. Ct. App. 2016) (indicating that the Court may consider several factors in assessing a reasonable fee, including the judge’s own personal expertise, the responsibility of the parties in incurring the fees, and the hours worked or rates charged). In addition, the Court awards the Department $12,900.00 to reimburse its expenses for successfully resisting the University’s motion to compel.

Posted by Marcia Oddi on February 16, 2017 02:19 PM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, re threats on Facebook wall - Posner

In USA v. Samuel Bradbury (ND Ind., Simon), a 7-page opinion, Judge Posner writes:

On June 8, 2014, Jerad and Amanda Miller, originally of Lafayette, Indiana, shot and killed two police officers and one civilian in Las Vegas. The couple died in an ensuing shootout with police, Amanda committing suicide after Jerad was shot. At approximately 11:15 p.m. on June 19, 2014, Samuel L. Bradbury, a Lafayette resident, placed the following message on his Facebook “wall,” where it was readable by his Facebook “friends,” who could moreover take screenshots of the message to convey to others: * * *

On the basis of these discoveries, and the threats in the Facebook post, Bradbury was indicted on federal charges of threatening to use explosive materials to kill law enforcement officers and state court judges and destroy a courthouse and police vehicles, all by means of the thermite found in his bedroom—thermite ignitable by the magnesium also found there. But a superseding indictment changed the charges to “willfully mak[ing] any threat” and “maliciously convey[ing] false information.” The jury trial that ensued resulted in Bradbury’s acquittal of the first charge and conviction of the second. The judge sentenced him to 41 months of imprisonment to be followed by two years of supervised release.

The count of which he was convicted was based on 18 U.S.C. § 844(e), which provides, so far as relates to this case, that “whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, … maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made or to be made to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, by means of fire or an explosive, shall be imprisoned for not more than 10 years or fined under this title, or both.” The judge instructed the jury that to act “maliciously” means “to act intentionally or with deliberate disregard of the likelihood that damage or injury will result.” He added that the jury should find the defendant guilty if it concluded that he’d intentionally “conveyed false information, knowing the same to be false,” that “the false information was conveyed maliciously and via an instrument of interstate commerce,” and that it “concerned an alleged attempt to kill or injure law enforcement officers or to damage or destroy the Tippecanoe County Courthouse or other public property by use of fire or explosives.” And so the jury found.

Bradbury argues that the judge’s definition of “maliciously” allowed the jury to convict him merely for posting the message (an intentional act) even if he didn’t intend the post to cause harm—in other words if his Facebook post was a joke and so there was nothing malicious about it, just as in United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000), which vacated a conviction under the Bomb Hoax Act, 18 U.S.C. § 35(b), in which a similar instruction had been given to the jury and the defendant had argued that the false statements about a bomb in his airline luggage were jokes. * * *

It’s true that the word “maliciously” is not precise; if you google “maliciously synonyms,” Thesaurus.com gives you 16 words, ranging in gravity from “crookedly” to “roguishly.” See www.thesaurus.com/browse/maliciously (visited Feb. 16, 2017). But at least “malice” and “malicious” are reasonably clear and they in turn guide interpretation of “maliciously.” “Malice” is the noun, “malicious” the adjective, and “maliciously” the adverb—and so to act maliciously is to act with malice, or equivalently to be malicious. All three cognates well describe Bradbury’s post, which he knew might be read by people not all of them his pals and communicated by them to the police and to the persons named in the post as intended victims of him and his cronies. Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. § 844(e), as explained by the district judge, even if the harm that ensues is fright rather than physical injury. AFFIRMED

Posted by Marcia Oddi on February 16, 2017 01:22 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (2):

In Town of Knightstown v. Dudley Wainscott , an 18-page opinion, Judge Barnes writes:

In this interlocutory appeal, the Town of Knightstown (“Town”) appeals the trial court’s partial denial of its motion for summary judgment regarding a claim by Dudley Wainscott (“Wainscott”). On cross-appeal, Wainscott appeals the trial court’s partial grant of the Town’s motion for summary judgment. We affirm in part, reverse in part, and remand. * * *

Wainscott substantially complied with the ITCA notice requirements, and the trial court erred when it granted the Town’s motion for summary judgment on his negligence and equity claims. The trial court properly denied summary judgment on Wainscott’s nuisance claim, but it erred when it denied summary judgment on Wainscott’s breach of contract claim. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

In Christopher A. Neeley v. State of Indiana, a 16-page opinion, Judge Brown writes:
Christopher A. Neeley appeals his convictions for intimidation as a level 6 felony and resisting law enforcement as a class A misdemeanor. Neeley raises two issues, one of which we find dispositive and revise and restate as whether the trial court abused its discretion in admitting officer testimony. We reverse. * * *

Ind. Code § 34-28-5-3 gives an officer the authority to detain a person who the officer believes in good faith has committed an infraction for “a time sufficient” to inform the person of the allegation, obtain the person’s identification, and allow the person to execute a notice to appear. A stop predicated on a traffic violation becomes an unlawful and unreasonable seizure if it is “prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” Rodriguez, 135 S. Ct. at 1612 (internal quotations and brackets omitted). We find that, in each instance of charged criminal conduct, such conduct occurred well after the stop had progressed from what would be a lawful traffic detention to an unlawful seizure under the Fourth Amendment. Thus, even if the stop constituted a lawful traffic detention, our conclusion would be the same, that the court abused its discretion in admitting into evidence the relevant officer testimony.

NFP civil decisions today (3):

Ashley Brown v. Indiana Family and Social Services Administration (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of A.E.S.H., P.M.H. & J.G.A.H., Minor Children, K.M.H., Mother v. The Indiana Department of Child Services (mem. dec .)

In the Matter of the Termination of the Parent-Child Relationship of P.Y. and J.Y. (Minor Children), and R.Y. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (7):

Matter of J.S., a Child Alleged to be Delinquent v. State of Indiana (mem. dec.)

T.C. v. State of Indiana (mem. dec.)

J.R. v. State of Indiana (mem. dec.)

Mark A. Tyson v. State of Indiana (mem. dec.)

Diego Armando Pacheco Manzo v. State of Indiana (mem. dec.)

Theron Hunter v. State of Indiana (mem. dec.)

Dennis Price v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 16, 2017 11:40 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Indiana AG says ruling on same-sex parent birth certificate issue creates confusion"

WISHTV 8 reports in a story that begins:

Newly-elected Indiana Attorney General Curtis Hill is making headlines after appealing a federal judge’s ruling that would allow female same-sex spouses to be listed on a child’s birth certificate.

Judge Tanya Walton Pratt ruled that requiring a same-sex spouse to adopt a child in order to gain parental rights is unconstitutional. The state currently recognizes the birth mother, but not a same-sex spouse on the birth certificate. That spouse would have to go through the often expensive adoption process to be included on the certificate. Parenting rights make it easier to enroll kids in school and even add them to insurance.

Hill says he’s appealing this decision because Pratt’s ruling creates law that doesn’t exist.

The WISHTV story follows on the Feb. 1st Indianapolis Star story, quoted here in the ILB, that the State is appealing to the 7th Circuit the decision by U.S. District Court Judge Tanya Walton Pratt in Henderson v. Adams.

Posted by Marcia Oddi on February 16, 2017 11:21 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court issues 1 today, re sports injuries

In Tresa Megenity v. David Dunn, an 8-page, 5-0 opinion, Chief Justice Rush writes:

Our decision in Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), established a limited new rule: Indiana courts do not referee disputes arising from ordinary sports activity. Instead, as a matter of law, when a sports participant injures someone while engaging in conduct ordinary in the sport—and without intent or recklessness—the participant does not breach a duty. Id. at 404. Today we clarify that under Pfenning ordinary conduct in the sport turns on the sport generally—not the specific activity.

Here, during a karate class drill, David Dunn jump-kicked a bag, injuring Tresa Megenity, who was holding the bag. Since jump kicks are ordinary in the sport of karate generally, and no evidence supports intent or recklessness, Megenity cannot show breach as a matter of law. We thus affirm summary judgment for Dunn. * * *

The trial court granted summary judgment for Dunn, noting that the jump kick was “ordinary behavior of participants in karate within the context of a ‘kicking the bag’ drill.”

Megenity appealed, and a divided panel of the Court of Appeals reversed summary judgment because (1) the “‘general nature of the conduct reasonable and appropriate for a participant’ in a karate practice drill is not ‘commonly understood and subject to ascertainment as a matter of law’” and (2) questions of fact remained as to whether Dunn’s jump kick breached a duty. Megenity v. Dunn, 55 N.E.3d 367, 373 (Ind. Ct. App. 2016) (emphasis added) (quoting Pfenning, 947 N.E.2d at 403–04). Judge Riley dissented, believing that jump kicks are ordinary behavior within karate as a whole. Id. at 374 (Riley, J., dissenting).

We granted Dunn’s petition to transfer, thereby vacating the Court of Appeals decision. Ind. Appellate Rule 58(A). * * *

Like the wayward drive in Pfenning, Dunn’s jump kick may reflect poor technique or faulty execution. But it was ordinary conduct in the sport of karate generally, and no evidence shows intent or recklessness. We therefore find no breach as a matter of law and affirm summary judgment.

Posted by Marcia Oddi on February 16, 2017 11:12 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Cts. - "Marion Co. Traffic Court bailiffs accused of forging documents to get tickets dismissed" [Updated]

Posted this morning by Fox 59, a story that begins:

Two former Marion County Traffic Court bailiffs are accused of forging judges’ signatures in order to get traffic tickets and violations dismissed. One of them accepted bribes, prosecutors say.

Evelyn Hughes is charged with 49 counts including bribery, forgery and official misconduct. Carnetta Arthur faces 14 counts, including forgery and official misconduct.

The charges against the former bailiffs are the result of a report from the Marion County Superior Courts to the Marion County Prosecutor’s Grand Jury Division.

According to the probable cause affidavit, the bailiffs forged judges’ signatures on documents to dismiss infraction charges in court. They forwarded those documents to the Bureau of Motor Vehicles to clear suspensions and reinstatement fees. Prosecutors said Hughes accepted money from people so that their cases would be dismissed.

[Updated at 12:00 PM] Here is a story from the Indianapolis Star.

Posted by Marcia Oddi on February 16, 2017 11:03 AM
Posted to Indiana Courts

Wednesday, February 15, 2017

Ind. Decisions - Supreme Court suspends attorney 180 days for bringing frivolous lawsuits

In In the Matter of: Andrew U.D. Straw, a 3-page order, the Court writes:

Facts: The four disciplinary counts in this case arise from frivolous claims and arguments advanced by Respondent in four lawsuits, three filed on his own behalf and the fourth filed on behalf of a client.

The first case, Straw v. Kloecker, arose from a defamation lawsuit Respondent had filed on his own behalf against a publishing company. * * *

In the second case, Straw v. American Bar Association et al., Respondent filed suit in federal court against the ABA and 50 law schools, alleging violations of the Americans with Disabilities Act (“ADA”). * * *

The third case, Straw v. Sconiers, arose from Respondent’s prior representation of a client in connection with an employment discrimination claim. * * *

The fourth case, Rutherford v. Zalas, arose from a post-dissolution proceeding in Marshall Superior Court in which Respondent represented the former husband and another attorney (“Zalas”) represented the former wife. * * *

In each of the four counts, the Commission charged Respondent with violating Indiana Professional Conduct Rule 3.1, which prohibits bringing a proceeding or asserting an issue therein unless there is a basis in law and fact for doing so that is not frivolous. Following a hearing in which Respondent refused to participate, the hearing officer found Respondent violated Rule 3.1 as charged in each of the four counts and recommended that Respondent be suspended without automatic reinstatement. * * *

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, effective immediately.

Posted by Marcia Oddi on February 15, 2017 01:38 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "Lawmaker seeks to untangle regulations on African-American hair-braiding"

The IndyStar's Fatima Hussein reports today:

Stylists who specialize in braiding hair would no longer have to attend beauty school under a bill approved by the Indiana House on Monday.

House Bill 1243, sponsored by Rep. Tim Wesco, R-Osceola, passed Monday on an 82-11 vote. It now heads to Indiana's Senate for consideration.

The measure effectively removes natural hair braiding from the cosmetologist licensing requirement. Currently, braiders who offer the service are required to obtain schooling in cosmetology in order to obtain a license.

Indiana has one of the strictest hair-braiding regulations in the country, according to the Libertarian law firm Institute for Justice, requiring braiders to complete 1,500 hours of practice before receiving a license.

The measure is supported by several state agencies that monitor hair salons. The Indiana Professional Licensing Agency told IndyStar that the state has never actually seen a complaint from a consumer regarding unlicensed hair braiders.

See the earlier post here.

Posted by Marcia Oddi on February 15, 2017 01:35 PM
Posted to Indiana Government

Ind. Decisions - "Boonville attorney suspended from practice for three years"

Today's Supreme Court ruling suspending Gene D. Emmons for three years (see ILB summary here) is the subject of a story in the Evansville Courier & Press, reported by Mark Wilson, that begins:

A Boonville, Indiana attorney who wrote $20,000 in checks to himself from the account of an 88-year-old incapacitated woman has been suspended from practicing law for at least three years.

Attorney Gene D. Emmons was Warrick Circuit Court-appointed guardian for the woman, who was living in a nursing home at the time, according to an Indiana Supreme Court disciplinary order published Tuesday.

The order noted that Emmons had already been indefinitely suspended for not cooperating with the state Disciplinary Commission's investigation and he will not be given credit for that time. He was suspended indefinitely on Jan. 25, 2016.

Posted by Marcia Oddi on February 15, 2017 01:23 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues 2 today, including an attorney suspension for 3 years

In J.D.M. v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:

J.D.M. was adjudicated a delinquent for committing acts which, if committed by an adult, would constitute Class C felony child molestation, and was subsequently ordered to register as a sex offender. J.D.M. appeals, claiming that the statutory prerequisites for placing a juvenile on the sex offender registry were not met. We agree, and reverse. * * *

In both J.C.C. and N.L., this Court emphasized that such strict construction of the juvenile sex offender registration requirement was necessary to accomplish the express statutory goal of “ensur[ing] that children within the juvenile justice system are treated as persons in need of care, protection, treatment, and rehabilitation.” Ind. Code § 31-10-2-1(5) (2016); N.L., 989 N.E.2d at 778 (“The stakes of juvenile sex-offender registration . . . are significantly different than where adult offenders are involved.”); J.C.C., 897 N.E.2d at 935 (“[T]he statutory scheme for dealing with minors who commit crimes is vastly different from the statutory scheme directed to adults who commit crimes. This policy is consistent with the State’s primary interest in rehabilitation, rather than the punishment of juvenile delinquents.”) (internal citations omitted).

In In the Matter of: Gene D. Emmons, a 4-page, 4-1, attorney disciplinary action, the Court writes:
We find that Respondent, Gene D. Emmons, engaged in attorney misconduct by converting guardianship funds, failing to comply with court orders, and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least three years without automatic reinstatement. * * *

At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

All Justices concur, except David, J., who would reject the conditional agreement.

Posted by Marcia Oddi on February 15, 2017 01:09 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (4):

In Mint Management, LLC, and J&MW Holdings, LLC v. City of Richmond, Indiana , a 12-page opinion, Judge Pyle writes:

Owners filed a claim for a declaratory judgment on the issue of whether they were required to pay the City’s fee (“Stormwater Fee”) for financing its stormwater system. The City filed a motion for summary judgment, and the trial court granted the motion. It reasoned that all owners of real estate parcels in Richmond were required to pay the Stormwater Fee pursuant to the language of the City’s stormwater ordinance.

On appeal, the Property Owners argue that we should interpret the City’s stormwater ordinance as exempting their properties from the Stormwater Fee because the stormwater runoff from their properties does not enter the City’s stormwater system. Because we conclude that the language of the ordinance as a whole requires all property owners in Richmond to pay the Stormwater Fee, we conclude that the trial court did not err in granting summary judgment in favor of the City.

In Jason Bokori v. Jasmina Martinoski , an 18-page, 2-1 opinion, Judge Bailey writes:
Jason Bokori (“Bokori”) collided with Jasmina Martinoski’s (“Martinoski”) leased car, totaling it. Insurance payments covered Martinoski’s medical expenses and a portion of the cost of her totaled vehicle, but a balance remained on the lease. Martinoski sued Bokori for the balance in small claims court, and the court entered judgment in her favor. Bokori now appeals. We affirm.

Issue. Bokori presents one issue for our review, whether the small claims court committed clear error in determining fair market value and awarding damages. * * *

The dissent’s argument that Martinoski cannot recover for damages related to a leasehold—something apparently akin to arguing that Martinoski lacks a claim for which relief can be granted under Trial Rule 12(B)(6)—is not an argument Bokori made at trial. And, because it is outside our role to advocate for a party, issues not raised by a party are waived. Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied, cert. denied. Here, Bokori has essentially conceded that Martinoski was entitled to pursue this claim. See Ind. Trial Rule 15(B) (providing that issues not raised in the pleadings but tried by express or implicit consent of the parties “shall be treated in all respects as if they had been raised in the pleadings”).

Thus, Bokori’s appeal focuses solely on the question of the trial court’s determination of fair market value. That Martinoski was not the owner of the vehicle does not ipso facto preclude the trial court from hearing or crediting her testimony as to the value of the vehicle, just as surely as Martinoski not owning the vehicle did not preclude her from obtaining insurance. Simply put, she had a contractual interest in the vehicle’s use, and thus a financial stake in any resulting payout for damage to the vehicle. We are not at liberty to aid Bokori, a party represented by counsel in a small claims case, by creating arguments for him, and we are thus not at liberty to take the dissent’s path.

Nor are we at liberty to presume knowledge of the contents of any of a number of documents that might, had Bokori introduced them into evidence, have precluded a recovery. The record includes testimony concerning the existence of a lease and its term. But the lease document itself was not introduced into evidence, and thus we cannot properly rely on what it might say as introducing a bar to Martinoski’s recovery. There is also no evidence about the extent to which some or all of Martinoski’s claims were subrogated either to Toyota Financial or her insurer. * * *

Had Bokori presented other arguments or introduced other evidence, our result might have been different. But we are not bound to do a litigant’s work, and we are not at liberty to reargue the case or reweigh evidence. We therefore affirm the trial court’s judgment. Affirmed.

Brown, J., concurs.

Barteau, Sr. J., dissents with separate opinion. [that begins, at p. 12] The majority concludes that appellate review and disposition of this case hinges on the sufficiency of the evidence of fair market value, and would dispose of this case as an impermissible request by Jason Bokori to reweigh that evidence. I believe that the trial court did not appropriately apply the law, committing clear error, and, therefore, I must respectfully dissent. * * *

Martinoski had a remaining contractual liability on the leased vehicle that was totally destroyed as a consequence of Bokori’s tortious actions. Although the result of the financial choices made seems to lead to a harsh result, Martinoski has no legal remedy against Bokori for her contractual liability under the lease agreement. For these reasons, I must respectfully dissent from the majority opinion affirming the trial court’s decision.

In Harry Hobbs v. State of Indiana, a 7-page opinion, Sr. Judge Barteau writes:
[I]n this case the trial court corrected a limited sentencing error on remand in relation to a motion to correct erroneous sentence. The holdings in Lane and Niece do not compel a conclusion that the trial court or this Court is obligated to consider all of Hobbs’s sentencing claims regardless of whether they are appropriate for a motion to correct erroneous sentence. * * * Affirmed.
In Justin R. Messersmith v. State of Indiana, an 8-page opinion, Judge Bailey writes:
Following a jury trial, Justin R. Messersmith (“Messersmith”) was convicted of one count of Neglect of a Dependent Resulting in Bodily Injury, as a Level 5 felony, and one count of Battery on a Person Less Than 14 Years Old, as a Level 6 felony. Messersmith now appeals, contending that the trial court abused its discretion when, after accepting a plea agreement and entering judgment of conviction against Messersmith pursuant to the agreement, the trial court later granted the State’s request to withdraw the plea agreement. We reverse and remand with instructions. * * *

The circumstances here, however, did offend Messersmith’s constitutional rights. This is because entry of judgment following a guilty plea implicates a defendant’s rights, Coker, 499 N.E.2d at 1138, and due process requires that the government uphold its side of the bargain. Santobello, U.S. 257 at 262. Thus, Messersmith’s due process rights were violated when the trial court allowed the State to avoid the agreement over Messersmith’s objection. Although Indiana law establishes important victim rights, those rights must give way to a defendant’s federal due process rights. U.S. Const. art. VI, cl. 2; Ind. Const. art. 1, § 13(b). We therefore conclude that the trial court abused its discretion when it granted the State’s request to withdraw the plea agreement.

NFP civil decisions today (3):

Courtney L. Donald a/k/a Courtney Cain v. Z.D.C. b/n/f Shana L. Rhodes, et al. (mem. dec.)

In the Termination of the Parent-Child Relationship of: A.B., V.B., C.R., & E.R. (Minor Children), and K.R. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of: N.D. (Minor Child) and J.D. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (8):

Thomas Maxfield v. State of Indiana (mem. dec.)

Rafael A. Faulkner v. State of Indiana (mem. dec.)

Grady Jamal Moss v. State of Indiana (mem. dec.)

Allison Moore v. State of Indiana (mem. dec.)

Joseph Clingerman v. State of Indiana (mem. dec.)

Marc Benton v. State of Indiana (mem. dec.)

Tyree Brodley v. State of Indiana (mem. dec.)

Donald E. Morris v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 15, 2017 11:29 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - State preemption of local bans on short term rentals passes house

Updating earlier ILB posts, Chris Sirich reported late yesterday for the Indianapolis Star:

On its second try, the Indiana House passed legislation to prevent local governments from banning Airbnb and similar short-term rental services.

The House voted 53-40 Tuesday to approve House Bill 1133. Lawmakers first tried to pass the bill Feb. 6 but could not reach a constitutional majority of 51 votes to approve the legislation. * * *

Rep. Matt Lehman, R-Berne, filed the bill to prevent local communities from banning residents from renting rooms in their homes. The legislation also would prevent governments from enacting overly strict regulations, such as adding costly fire prevention codes or noise or parking restrictions, that go beyond what other homeowners face.

The legislation would come with some caveats. Owners cannot rent their rooms for 30 consecutive days or for more than 180 days a year. Owners also must purchase liability insurance to cover up to $1 million per incident for third-party claims of death, bodily injury or property damage. * * *

Carmel Mayor Jim Brainard said he has received complaints from residents, homeowners associations and area hotels about problems caused by short-term rentals. Residents, he said, are worried their property values and quality of life will be damaged by problems such as noise, speeding and increased traffic caused by a high turnover of people who don't care about the community. Hotels, he said, face stricter zoning regulations than homeowners and are worried they are losing business in an unlevel playing field.

Posted by Marcia Oddi on February 15, 2017 10:25 AM
Posted to Indiana Government

Indf. Decisions - "COA upholds Rush County wind decision"

The Court of Appeals decision yesterday in Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al. (ILB summary here) is the subject of a story today by James Sprague in the Connersville News Examiner. The long story begins:

INDIANAPOLIS — The proposed Flat Rock Wind Project in Rush County became a little less likely to happen, at least in Rush County, as of this week.

The Indiana Court of Appeals Tuesday morning issued its opinion on the case involving Flat Rock Wind, LLC. – also known as Apex Clean Energy – and the Rush County Area Board of Zoning Appeals, with that opinion upholding the decision back in July 2015 to enact a 2,300-foot setback distance, from non-participating property lines, on Apex’s special exception permits for construction of industrial wind turbines as part of the proposed wind project which is slated to span both Rush and Henry counties.

That decision by the BZA was later upheld, during a challenge by Apex Clean Energy in Rush Superior Court, by Judge Matthew D. Bailey. Apex argued that the BZA does not have the authority to change the setback distance from the county-stated minimum of 1,000 feet, while Bailey ruled that the BZA did, in fact, have such authority. The decision led to Apex appealing the ruling, thus sending the case to the Court of Appeals.

Posted by Marcia Oddi on February 15, 2017 09:59 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Bill Would Set Guidelines For Releasing People On Bail"

Barbara Brosher reports today for Indiana Public Media:

A bill that would set guidelines for determining who can be released from jail on bail passed out of a Senate committee Tuesday.

The proposal says people who do not present a substantial risk of fleeing or danger should be released without bail. It excludes those under court-ordered supervision, those facing other charges and those who are charged with murder. * * *

The proposal comes after the Indiana Supreme Court adopted Criminal Rule 26 last year, which asks courts to use evidence-based risk assessments to help make pre-trial release decisions. Chief Justice Loretta Rush wrote in the order that “the prompt release of arrestees who do not pose a risk to public safety is associated with reduced recidivism and eliminates unnecessary expenses resulting from the over utilization of local jail resources.”

The bill is SB 228.

This story is of interest because, as the story notes, the Supreme Court has adopted a rule in this area, Criminal Rule 26. Pretrial release. For background, see this ILB post from Sept. 9, 2016, which points to the controversy between "prosecutors and defense attorneys differ on whether a new criminal rule announced by the Indiana Supreme Court will make the state a safer place." See also this Sept. 15, 2016 post, quoting a story in the Columbus Republic that began:

A new assessment process allows some criminal defendants to be released from the Bartholomew County Jail without posting bond.

A new pretrial process will use risk-assessment results to determine whether a defendant may be released without posting bond or whether that person needs to put up money, as they did before, before being allowed to leave the county jail.

Bartholomew is one of nine Indiana counties that may start using the new pretrial model under rules approved Sept. 7 by the Indiana Supreme Court. They go into effect in Bartholomew County this week and will be rolled out to all Indiana courts by 2018.

It will be interesting to know more about whether this bill is intended to usurp the court rule, and the positions of the various interest groups. Perhaps this will come out in second house committee.

Posted by Marcia Oddi on February 15, 2017 09:33 AM
Posted to Indiana Courts

Law - "IRS has stopped requiring individual filers to indicate whether they maintained health coverage or paid the mandate penalty as required under the law"

That according to a headline to an article dated Feb. 14th in Reason ( "free minds and free markets"), by Peter Suderman. The headline in full: "Major Blow to Obamacare Mandate: IRS Won't Reject Tax Returns That Don't Answer Health Insurance Question: The tax agency has stopped requiring individual filers to indicate whether they maintained health coverage or paid the mandate penalty as required under the law." The story begins:

How much difference does a single line on a tax form make? For Obamacare's individual mandate, the answer might be quite a lot.

Following President Donald Trump's executive order instructing agencies to provide relief from the health law, the Internal Revenue Service appears to be taking a more lax approach to the coverage requirement.

The health law's individual mandate requires everyone to either maintain qualifying health coverage or pay a tax penalty, known as a "shared responsibility payment." The IRS was set to require filers to indicate whether they had maintained coverage in 2016 or paid the penalty by filling out line 61 on their form 1040s. Alternatively, they could claim exemption from the mandate by filing a form 8965.

For most filers, filling out line 61 would be mandatory. The IRS would not accept 1040s unless the coverage box was checked, or the shared responsibility payment noted, or the exemption form included. Otherwise they would be labeled "silent returns" and rejected.

Instead, however, filling out that line will be optional.

Earlier this month, the IRS quietly altered its rules to allow the submission of 1040s with nothing on line 61. The IRS says it still maintains the option to follow up with those who elect not to indicate their coverage status, although it's not clear what circumstances might trigger a follow up.

But what would have been a mandatory disclosure will instead be voluntary. Silent returns will no longer be automatically rejected. The change is a direct result of the executive order President Donald Trump issued in January directing the government to provide relief from Obamacare to individuals and insurers, within the boundaries of the law.

However, this reporting change does not appear to eliminate the penalty for going without coverage. More from the long story:
Although the new policy leaves Obamacare's individual mandate on the books, it may make it easier for individuals to go without coverage while avoiding the penalty. Essentially, if not explicitly, it is a weakening of the mandate enforcement mechanism.

"It's hard to enforce something without information," says Ryan Ellis, a Senior Fellow at the Conservative Reform Network.

The move has already raised questions about its legality. Federal law gives the administration broad authority to provide exemptions from the mandate. But "it does not allow the administration not to enforce the mandate, which it appears they may be doing here," says Michael Cannon, health policy director at the libertarian Cato Institute. "Unless the Trump administration maintains the mandate is unconstitutional, the Constitution requires them to enforce it."

"The mandate can only be weakened by Congress," says Ellis. "This is a change to how the IRS is choosing to enforce it. They will count on voluntary disclosure of non-coverage rather than asking themselves."

The IRS notes that taxpayers are still required to pay the mandate penalty, if applicable. "Legislative provisions of the ACA law are still in force until changed by the Congress, and taxpayers remain required to follow the law and pay what they may owe‎," the agency statement said.

Posted by Marcia Oddi on February 15, 2017 09:12 AM
Posted to General Law Related

Tuesday, February 14, 2017

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (4):

In Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al. , a 26-page opinion, Judge Riley writes:

Appellant-Petitioner, Flat Rock Wind, LLC (Flat Rock), appeals the trial court’s decision, affirming Appellee-Respondent’s, Rush County Area Board of Zoning Appeals (BZA), grant of Flat Rock’s amended application to construct a commercial Wind Energy Conversion System, subject to the requirement to locate each industrial wind turbine at least 2,300 feet from a non-participating owner’s property line. We affirm.

Appellant raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2); and

(2) Whether the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a commercial Wind Energy Conversion System, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement. * * *

Based on the explicit language of the Zoning Ordinance, we conclude that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring this Setback. In interpreting the Zoning Ordinance, the BZA viewed the siting setback as a “minimum” guideline, which was subject to “reasonable restrictions” to preserve the health and safety of the public. (Zoning Ordinance, Sec. 6.4.2; see also Zoning Ordinance 10.2). By evaluating Flat Rock’s proposed commercial WECS project as planned and the evidence and testimony received during the hearings, the BZA imposed the Setback Condition to promote the Zoning Ordinance’s and the WECS’ special exception’s stated purpose to promote the public interest. Because we find the BZA’s interpretation reasonable and consistent with the Zoning Ordinance itself, we must defer to the agency’s decision. See Hoosier Outdoor Advertising Corp., 844 N.E.2d at 163. Accordingly, as the BZA did not exceed its powers, we affirm the trial court’s decision.

CONCLUSION. Based on the foregoing, we hold that the trial court properly permitted Remonstrators to intervene pursuant to T.R. 24(A)(2); and the BZA did not exceed its power by interpreting the WECS special exception in the Zoning Ordinance.

In Citizens Action Coalition of Indiana, Inc., et al. v. Southern Indiana Gas and Electricity Company, et al., a 22-page opinion, Judge Altice writes:
Over three years ago, Southern Indiana Gas and Electric Company d/b/a Vectren Energy Delivery of Indiana, Inc. (Vectren) petitioned the Indiana Utility Regulatory Commission (IURC) for approval of projects to modify four of Vectren’s coal-powered generating stations to bring them into compliance with EPA emissions standards. Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. (collectively, Intervenors) intervened in the action and opposed the petition.

The IURC ultimately approved the petition, determining that Vectren’s proposed projects were reasonable and necessary under Ind. Code § 8-1-8.8-11. Upon Intervenors’ appeal in Citizens Action Coal. of Ind., Inc. v. S. Ind. Gas & Elec. Co. (Vectren I), 45 N.E.3d 483 (Ind. Ct. App. 2015), another panel of this court remanded with respect to two of the proposed projects, finding that I.C. § 8-1- 8.7-3 rather than I.C. § 8-1-8.8-11 applied. This court instructed the IURC to make findings regarding the statutory factors listed in I.C. § 8-1-8.7-3 and then issue or deny a certificate of public convenience and necessity (CPCN) for the two projects.

On remand, the IURC refused a request by Intervenors to reopen the record to consider new evidence. It also issued an order analyzing the nine statutory factors, concluding that public convenience and necessity will be served by the proposed clean coal technology projects, and issuing a CPCN to Vectren for the remaining projects. Intervenors appeal once again. They argue that the IURC’s findings are not adequately explained, are arbitrary and capricious, and are not supported by substantial evidence. Additionally, Intervenors argue that the IURC unlawfully denied the petition to reopen the record. We affirm.

In School City of Hammond District v. Chad Rueth, a 24-page opinion, Judge Riley writes:
Appellant-Defendant, School City of Hammond District (the District), appeals the trial court’s entry of judgment pursuant to a jury verdict in favor of Appellee-Plaintiff, Chad M. Rueth (Rueth), on his claims of defamation and blacklisting. We reverse. * * *

Based on the foregoing, we conclude that there is insufficient evidence to support a verdict for defamation or blacklisting, and, as such, the trial court abused its discretion by denying the District’s Motion to Correct Error.

In Termination: TF v. Indiana Department of Child Services, et al. , a 33-page opinion, Judge Brown writes:
T.F. (“Father”) appeals the involuntary termination of his parental rights with respect to his daughters A.F., D.F., and M.F. Father raises one issue which we revise and restate as whether the trial court abused its discretion in admitting evidence. We affirm.
In State of Indiana v. Sameer Girish Thakar, a 12-page opinion, Judge Barnes writes:
The State appeals the trial court’s dismissal of its charging information against Sameer Girish Thakar for one count of Class D felony dissemination of matter harmful to minors. We affirm.

The sole issue is whether the statutes criminalizing and defining dissemination of matter harmful to minors are unconstitutionally vague as applied to the alleged conduct in which Thakar engaged. * * *

In this appeal, the State makes no attempt to argue that the present case is in any way distinguishable from Salter. Rather, it urges this panel to disagree with the majority opinion in that case and to essentially adopt the dissenting position. We decline to do so and, instead, state our agreement with the Salter majority.

The State reiterates the dissent’s comment that the legislature did not intend to “authorize” or “encourage” sixteen year olds to have sex with adults by establishing sixteen as the age of consent for purposes of the criminal law. We respectfully disagree that the legislature did not “authorize” such conduct. By choosing not to subject adults to punishment for such activity, that is precisely what it has done. As for whether the legislature intended to “encourage” such conduct, it is not the government’s duty or prerogative to encourage any particular persons to have sex. We believe any conjecture on this point is not pertinent to our discussion.

The State also asserts that it is logical to distinguish between in-person sexual activity between an adult and a sixteen-year-old and the dissemination of sexual material from an adult to a sixteen year old, and to punish the second type of conduct but not the first. * * *

The State also suggests that the legislature’s failure to take any action to amend the statutes regarding dissemination of matter harmful to minors after Salter was decided somehow represents a rejection of Salter's holding. If anything, the legislature’s inaction points to the opposite. Judicial interpretation of a statute, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly’s acquiescence and agreement with the judicial interpretation. Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005). We need not place too much emphasis on the legislature’s inaction here, especially given that the Indiana Supreme Court has not weighed in on the issue. See id. Still, it has been almost eight years since Salter found these statutes to be unconstitutionally vague and ambiguous with respect to transmission of nude images by adults to sixteen year olds. Moreover, the majority expressly stated at the conclusion of its decision, “we realize our decision is sure to inspire opposition. But . . . our legislature has decided to protect sixteen- and seventeen-year-olds . . . in different ways than it protects other minors. Opposition to that policy choice should be voiced to the legislature, not to the courts.” Salter, 906 N.E.2d at 223. Despite these comments, no change has been made to the statutes aside from a general reclassification of the offense from a Class D to a Level 6 felony. * * *

[W]e conclude, as the majority did in Salter, that the statutes criminalizing and defining dissemination of matter harmful to a minor are unconstitutionally vague and ambiguous with respect to an adult transmitting sexual, non-obscene4 images to a sixteen- or seventeenyear-old, at least where that adult could not be prosecuted for child seduction. We construe the statutes as currently not permitting prosecution of such acts.

Conclusion. We reaffirm the majority holding in Salter. The trial court properly relied upon that holding in dismissing the charging information against Thakar. Affirmed.

NFP civil decisions today (4):

Coventry Court Townhomes v. Brittany D. Bigger (mem. dec.)

Daniel Fuquay v. Teresa Higginson, et al. (mem. dec.)

Cassie L. Carnahan v. Jason M. Carnahan (mem. dec.)

JG v. Review Board, et al. (mem. dec.)

NFP criminal decisions today (7):

AW v. State of Indiana (mem. dec.)

Keri Brewer v. State of Indiana (mem. dec.)

Tommy J. Rubalcada v. State of Indiana (mem. dec.)

Kenneth M. Jordan v. State of Indiana (mem. dec.)

Dax C. Rutherford v. State of Indiana (mem. dec.)

Billy E. Oliver v. State of Indiana (mem. dec.)

Albert Webb v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 14, 2017 11:56 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - JQC advisory opinion on tweeting and microblogging in courtroom

The issues posed in Advisory Opinion #1-17:

1) Does Rule 2.17’s broadcast prohibition include activities like microblogging or ‘live tweeting’ of witness testimony?
2) Even if microblogging or tweeting is not considered broadcasting, is it ethically permissible for a judge to impose reasonable restrictions on the use of these mediums (and other electronic modes of communication) in the courtroom?
Conclusion of 4-page opinion:
Differing, but equally valid, interests exist between the public’s desire for transparency and immediate information about court proceedings and the judiciary’s obligation to maintain order and decorum in the court as well as to preserve fairness for all courtroom participants. Recognizing the challenge that new technologies bring regarding the transmission of court proceedings, the Commission believes that it is imperative that this delicate balance be preserved so that neither side’s legitimate interests are wholly disregarded.

The Commission’s view is the use of electronic means of instant communication, such as Twitter or microblogging, in the courtroom is not considered broadcasting under Rule 2.17 of the Code of Judicial Conduct, except in those limited situations when a user transmits video or audio of court proceedings or a link to videotaped court testimony. Further, it is the Commission’s view that a judge continues to act within the spirit of the Code of Judicial Conduct if he or she imposes reasonable restrictions on how and when an individual may use Twitter or other electronic communication tools during courtroom proceedings.

Posted by Marcia Oddi on February 14, 2017 10:01 AM
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues rare order granting reinstatement to practice of law

As we saw in this Feb. 14, 2014 ILB post -- "How bad is 'suspension without automatic reinstatement' by the Supreme Court; can it be the kiss of death for an attorney?" -- indeed, it can be.

So this Court order dated February 10, 2017, in In the Matter of: John M. Joyce, is noteworthy. Petitioner, who was suspended "for not less than 180 days without automatic reinstatement," effective June 20, 2014, has now been reinstated to the practice of law in Indiana, effective February 10, 2017.

Posted by Marcia Oddi on February 14, 2017 09:40 AM
Posted to Indiana Courts