Saturday, September 20, 2014

Ind. Decisions - More on: "ACLU asks for federal recognition of Indiana same-sex marriages"

In this ILB post from July 11, the ILB links to a letter of that date sent by the Indiana ACLU to U.S. AG Eric Holder asking for a statement of federal recognition for Indiana same sex marriages performed in Indiana between June 25th and 27th.

This would be similar to the recogition Attorney General Eric Holder granted on March 28th regarding the status of same-sex marriages that had been performed in the State of Michigan a few days earlier:

I have determined that the same-sex marriages performed last Saturday in Michigan will be recognized by the federal government. These families will be eligible for all relevant federal benefits on the same terms as other same-sex marriages.
But AG Holder has not responded to the Indiana request, or that of two other states. A long, Sept. 19th article in the Washington Blade by Chris Johnson reports:
Holder has already announced that the Obama administration would recognize same-sex marriages performed in Utah and Michigan following court rulings in those states that allowed marriage equality before stays were imposed on the decisions. But no such announcement has been made for same-sex marriages performed in Arkansas, Indiana and Wisconsin, where courts have similarly allowed same-sex couples to marry for brief periods of time.

Posted by Marcia Oddi on September 20, 2014 09:07 AM
Posted to Indiana Decisions

Friday, September 19, 2014

Ind. Decisions - Supreme Court lets COA ruling in Dram Shop Liability case stand; more

The ILB has just learned that the Supreme Court has denied transfer in the case of Pierson v. Service America (49A02-1307-CT-00561). This is a case involving dram shop liability, here is the ILB summary of the May 21st Court of Appeals opinion, including:

Trenton Gaff (“Gaff”) was intoxicated2 when his vehicle struck and killed twelve-year-old Tierra Rae Pierson and injured her cousin, twelve-year-old January Canada. Earlier in the day, Gaff had attended a Colts game at Lucas Oil Stadium and had consumed alcoholic beverages at a pre-game tailgate party, during the game, and at a post-game tailgate party. * * *

The discovery process did not yield the identity of the person or persons who had sold alcoholic beverages to Gaff inside Lucas Oil Stadium. Centerplate moved for summary judgment on the negligence claims against it. The trial court granted the motion * * *

Were we to accept Centerplate’s argument that only a single inference arises, that is, no liability can ensue because no particular server to Gaff has been identified, such would circumvent the public policy associated with the Dram Shop Act. In comparison to a neighborhood bar owner employing a few servers, a provider of alcoholic beverages using hundreds of volunteers to sell alcohol to thousands of patrons in a stadium may well seem ideally situated to lessen liability although the potential consequences are greatly increased. We do not believe this to be the intent of our Legislature. It is for the fact-finder, and not the court on summary judgment, to determine whether Centerplate knowingly provided one more alcoholic beverage to a visibly intoxicated patron.

Conclusion. Reasonable inferences to be drawn from the designated materials could permit a fact-finder to conclude that a Centerplate designee served Gaff beer while knowing him to be visibly intoxicated. As Centerplate did not, based upon undisputed facts, negate an element of Pierson’s negligence claim, summary judgment was improvidently granted. Reversed.

The vote of the Supreme Court was 4-1, with Justice Massa voting to grant transfer.

And in another case, according to this news report last evening from WTHITV 10:

The Indiana Supreme Court will review a Valley high-profile child abuse case.

The state’s top court agreed to review the case against Larry Russell of Terre Haute. He and his wife Nikki pleaded guilty to neglect and criminal confinement charges.

The court of appeals overturned Larry Russell’s 10 year prison sentence. The court felt his plea agreement did not follow state law.

The Supreme Court’s decision to take on the case means both the appellate and trial courts rulings are vacated.

Here is the ILB summary of the COA opinion in Larry D. Russell, Jr. v. State of Indiana (84A01-1312-CR-532).

ILB Comment: Presumably, both these cases and a number of others will be listed on the Clerk's Transfer List, which likely will be available to the public sometime Monday morning.

Back in the day, several clerks ago, the transfer list used to be available on Friday afternoons. Just saying...

The SCOTUS goes a step further, making publicly available the list of cases it will be considering in conference, followed after the conference with a list of those acted on.

Posted by Marcia Oddi on September 19, 2014 02:42 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Courts - Information on judicial retention - where is the birth date?

The ILB has been looking at the Court's judicial retention site for 2014 and notices that it does not list the birth dates of the judges and justices up for retention in November.

As I posted in 2010 and in 2012 in commenting on the Court's previous retention websites:

I would have liked to see: (1) The age of each judge. By law, an appellate judge must retire at age 75. Thus, whether a judge will be able to finish his/her term is a fact voters should be able to take into consideration.
Again this year, that information has not been made available for the voters on the retention website.

(Notably, this year's Supreme Court Annual Report does list, for the first time, the birth dates of the five current justices. See pp 4 and 5.)

Posted by Marcia Oddi on September 19, 2014 01:13 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In City of Mitchell v. Randy Phelix, a 15-page opinion, Judge Barnes writes:

The City of Mitchell (“the City”) appeals the trial court’s denial of its complaint for declaratory judgment related to Randy Phelix’s claim for medical expenses. The Indiana Association of Cities and Towns and the Indiana Municipal Lawyers Association filed an amici curiae brief in support of the City. We reverse.

The City raises two issues, which we revise and restate as whether the trial court properly found that the City was required to pay Phelix’s medical expenses under Indiana Code Section 36-8-4-5. * * *

We recognize the inconsistency here—PERF apparently determined that Phelix’s medical condition was at least in part a result of his employment, but the worker’s compensation carrier determined that his medical condition was not related to his employment. However, that inconsistency would have been better addressed by Phelix exhausting his administrative remedies in the worker’s compensation proceedings. Where the statutes are unambiguous, as here, we are constrained to apply the statutes as written. The trial court erred when it concluded that Phelix was entitled to have the City pay his medical bills under Indiana Code Section 36-8-4-5 despite the worker’s compensation carrier’s denial of his claim.

Conclusion. The trial court erred when it determined that the City was required to pay Phelix’s medical expenses under Indiana Code Section 36-8-4-5. We reverse.

In JDN Properties, LLC v. Vanmeter Enterprises, Inc., an 11-page opinion, Judge Barnes writes:
JDN Properties, LLC, (“JDN”) appeals the trial court’s grant of summary judgment in favor of VanMeter Enterprises, Inc. (“VEI”). We reverse and remand.

The sole restated issue before us is whether there is any evidence VEI caused or contributed to ground pollution in land that VEI sold JDN, as required to support JDN’s claim against VEI under Indiana’s Environmental Legal Actions (“ELA”) statute. * * *

To the extent VEI implies that a party seeking recovery under the ELA must prove that a defendant both caused or contributed to pollution and had knowledge of such pollution,4 the plain language of the statute does not require both. Rather, we believe knowledge of pollution is one way in which an owner of land may be held liable under the ELA for causing or contributing to hazardous pollution, under circumstances like those present here. Because there are genuine issues of material fact as to whether VEI had actual knowledge of petroleum contamination caused by its tenant, whether such contamination occurred during VEI’s ownership of the land and whether the contamination discovered in 2009 was the same contamination discovered between 1988 and 1991, it was improper to grant VEI’s motion for summary judgment.

Conversely, we reject JDN’s claim that it is entitled to summary judgment in its favor. The evidence we have described is conflicting as to whether VEI had knowledge of a petroleum leak occurring during its ownership of the land. Thus, there are genuine issues of material fact still to be resolved as to whether VEI caused or contributed to the petroleum contamination and a grant of summary judgment in JDN’s favor would be inappropriate.

Conclusion. There are genuine issues of material fact in this case regarding whether VEI caused or contributed to the ground contamination discovered by JDN in 2009. We reverse the grant of summary judgment in favor of VEI on JDN’s claim under the ELA and remand for further proceedings.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: K.C. & K.G. (minor children), and R.G. (mother) & T.G. (father) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on September 19, 2014 12:37 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Coverage of two of yesterday's Supreme Court oral arguments

Dan Carden of the NWI Times has stories today about two of the cases argued yesterday before the Indiana Supreme Court.

In a story headed "Fate of 3,800 Lake adoptions hangs on Indiana Supreme Court" Carden reports:

The Indiana Supreme Court heard oral arguments Thursday in a dispute that could void 3,800 Lake County adoptions approved over the past 14 years.

At issue was whether state law and local court rules authorized the Lake Superior Court's juvenile division to assent to the adoptions, alongside its other statutory tasks of ruling in child abuse and neglect cases and overseeing paternity and child support matters.

Backed by a March Court of Appeals ruling in his favor, attorney Larry Stassin, of Dyer, argued state law puts adoption cases solely under the jurisdiction of probate court, which administers wills.

Lake County does not have a dedicated probate court. Instead, probate matters are lumped into the civil division of Lake Superior Court.

"I cannot find a statute that conveys jurisdiction in adoption proceedings to the juvenile court," Stassin said.

Deputy Attorney General Robert Henke argued Stassin is misreading the law.

He said probate jurisdiction isn't limited to the civil division but resides with the Lake Superior Court, which contains both the civil and juvenile divisions, along with criminal and county divisions.

As a result, the Superior Court is not required to send adoption cases to civil court and can direct adoptions to juvenile court, so long as the action is authorized by local caseload management rules, as it is in Lake County, Henke said.

The high court's five justices focused most of their questions on how they could authorize the Lake juvenile court to approve adoptions when they previously let stand a 2006 Court of Appeals decision that explicitly denied juvenile courts the authority to finalize adoptions.

You can review the oral argument in Adoption of J.D. here.

In a story headed "Should annoying drinkers go to jail?," Carden reports:

What does it mean for a drunk person to "annoy?"

Does singing badly in a karaoke bar count? Yelling in a library? How about sleeping it off at a bus stop when no one else is around?

The Indiana Supreme Court will have the final say after hearing oral arguments Thursday in a challenge to the state's 2012 public intoxication law, making it a misdemeanor crime if a person is drunk in a public place and "harasses, annoys or alarms another person."

Rodregus Morgan, 52, of Indianapolis, was convicted of public intoxication after an Indianapolis police officer encountered him sleeping in a downtown bus shelter two years ago.

The officer said he smelled alcohol on Morgan's breath and was annoyed that Morgan became agitated and was reluctant to leave the shelter when directed.

Suzy St. John, Morgan's attorney, argued to the high court that the public intoxication statute is unconstitutional because the term "annoy" is not defined in the law. St. John also argued it sets an unknowable standard ripe for abuse because what may annoy one person might not bother another.

"To a sober person, just seeing an intoxicated person might be annoying," St. John said. "I consider myself a reasonable person, and seeing someone sleeping at a bus stop wouldn't annoy me at all."

Deputy Attorney General George Sherman admitted the law likely is unconstitutional -- as the Court of Appeals concluded 3-0 in February -- but he urged the justices to save it by attaching a "reasonable person" standard.

You can review the oral argument in Morgan v. State here.

Posted by Marcia Oddi on September 19, 2014 12:10 PM
Posted to Indiana Courts

Ind. Gov't. - Still more on: "Porter Co. prosecutor says he’s exempt from anti-nepotism laws " What of "domestic partners"?

Referring to the July 11, 2012 memo from State Court Administration to "Judicial Officers" re whether the new county nepotism law applies to judges and judicial employees, which the ILB posted yesterday, an attorney reader points to the Code of Judicial Code, Rule 2.13, cited in the memo, which reads [emphasis added]:

RULE 2.13: Hiring and Administrative Appointments

(A) In hiring court employees and making administrative appointments, a judge:

(1) shall exercise the power of appointment impartially and on the basis of merit; and

(2) shall avoid nepotism, favoritism, and unnecessary appointments.

and Comment 2:
[2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge's spouse or domestic partner, or the spouse or domestic partner of such relative.
Earlier in the Code, this defintion is provided:
Domestic partner” means a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married.
As the attorney reader points out, the Code mentions:
... domestic partnership relationships when the State doesn't, and when no there are no state domestic partnership benefits.
ILB: Looks like a good point.

Posted by Marcia Oddi on September 19, 2014 11:27 AM
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - More on: "State files licensing action against four Indiana physicians for violations of abortion record-keeping, advice and consent laws"

Updating this ILB entry from yesterday, which quoted from AG Zoeller's news release, the Indianapolis Star today has this story by Shari Rudavsky, headed "Complaints against doctors could make abortion rarer."

You think?

A quote from the story:

Until the Medical Licensing Board holds a hearing scheduled for Dec. 4, the licenses of the four doctors will remain active. The board will decide whether to take action, which could range from a reprimand to revoking the license to practice.

With only a few clinics operating in the state, such a move could have an impact. “We don’t even know how many people have chosen not to provide abortion care because they have been seeing what’s going on, the pressure the state is putting on abortion providers,” said Dr. Sue Ellen Braunlin, co-president of the Indiana Religious Coalition for Reproductive Choice.

Whittling down the number of abortion providers would make it more difficult for women who undergo the procedure to do so safely, said Betty Cockrum, president and chief executive officer of Planned Parenthood of Indiana and Kentucky, which has no connection to the Clinic for Women.

“The more these activists are successful at reducing the number of providers in Indiana, the more difficult they make it for women to have access to a safe abortion,” she said.

State law closely regulates how abortion providers must report procedures to the Indiana State Department of Health and in recent years, new reporting requirements have been added by the legislature.

For instance, see these ILB posts from the 2013 and 2014 sessions.

Today Emily Shire of The Daily Beast has this long story, headed "Indiana’s Crazy Administrative Abortion Demands Have Doctors Racking Up the Violations." Some quotes, but there is much more worth reading in the story:
These four physicians are facing potential loss of their medical license for “violations of abortion record-keeping and advice and consent laws,” according to a press release from Zoeller’s office.

These violations essentially stem from unsatisfactory patient paperwork. Under Indiana law, abortion providers must fill out an extensive Terminated Pregnancy Report (TPR). The state charges that the aforementioned doctors have failed to complete these forms within the established guidelines.

While some of the information requested is pertinent, such as the type of termination procedure and date of procedure, other categories seem more onerous: name of the father, age of the father, number of previous abortions and/or miscarriages a woman may have had, and dates of said abortions. Additional information required seems bluntly biased, such as “post-fertilization age of fetus” and “information as to whether the fetus was delivered alive.”

The violations also stem from submission of TPRs past the state-mandated deadline. Under Indiana law, TPRs for abortions performed between January 1 and June 30 must be submitted to the State’s Department of Health by July 30, and TPRs for abortions performed from July 1 through December 31 no later than January 30.

The Indiana Attorney General’s office appears to be taking its cue in their complaints against Klopfer, Glover, Pasic, and Robinson from state and local Right to Life groups. The nature of the violations almost entirely stem from the alleged failure to properly complete a TPR or for filing one too late, a tactic anti-abortion groups have used in the past against abortions providers within the state, including Klopfer.

Also somewhat related is this Aug. 17th story from the Winston-Salem NC Journal, which begins:
After passing laws imposing new conditions on abortions and elections, taking away teacher tenure and providing vouchers for private school tuition, Republican state legislators have seen those policies stymied in state and federal courtrooms.

So they have passed another law, this one making those kinds of lawsuits less likely to succeed when filed in state court. Beginning in September, all constitutional challenges to laws will be heard by three-judge trial court panels appointed by the chief justice of the state Supreme Court.

Posted by Marcia Oddi on September 19, 2014 10:55 AM
Posted to Indiana Government

Ind. Courts - Some Highlights of the Indiana Supreme Court’s 2013-14 Annual Report

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Just about two and a half months after the Indiana Supreme Court’s fiscal year ended, the Court released its annual report Thursday morning. Last year’s report was issued on November 4 and summarized in this post.

During the past year the court received, primarily through petitions to transfer, 300 civil cases (36%) and 523 criminal cases (64%), very similar to the numbers of civil and criminal cases last year. But the justices were far more likely to grant transfer and issue opinions in civil cases. The Court issued 49 civil transfer opinions (60%) compared to just 33 criminal transfer opinions (40%). Last year was more closely divided between civil (35 opinions or 54%) and criminal (30 opinions or 46%).

The number of opinions written by each justice during the past year was similar to the previous year, with the exception of Justice Rush, who had served only a partial year in 2012-13: Justice David (19), Chief Justice Dickson (18), Justice Rush (15), Justice Massa (14), and Justice Rucker (13). Perhaps most surprising was the division between civil and criminal, as Chief Justice Dickson and Justice Massa, who spent most of his professional life working as a prosecutor, wrote about 70% of their transfer opinions in civil cases. Justices Rucker and David authored slightly more criminal than civil opinions, and Justice Rush was even split.*

The court heard oral arguments in 80 cases this past year compared to 72 the previous year. Roughly the same percentage of arguments (20% this year; 19% the previous year) were held before deciding whether to grant transfer.

The report includes several photographs of the justices fulfilling their various duties. As this photograph of the Court's weekly conference shows (page 21), hundreds of pages of paper filings are considered by the justices each week. Within the next couple of years, those stacks of paper will likely be replaced with iPads or laptops. As explained on page 31 of the report:

The Supreme Court also launched a major effort this fiscal year to develop statewide electronic filing standards for both appellate and trial courts. An advisory committee completed a comprehensive revision of rules for e-filing and submitted the draft to the Committee on Rules of Practice and Procedure. The Rules Committee published the proposed rules for comment and will eventually submit their recommendation to the Court.
*The numbers for Justice Rush in the chart on page 14 appear inconsistent with the list of cases on page 20. Although the chart notes ten civil opinions, only the following seven cases are civil as I understand the term: Adoption of C.B.M., Schwartz, Kesling, Fulp, In re S.D., In re E.M., and Andrews. The following seven cases (not four as in the table) were criminal transfers: N.L., Becker, I.T., Ramirez, Brewington, McIlquham, and Berry. According to Appellate Rule 2(G), Juvenile Delinquency (JD) cases are considered criminal appeals. The report appears to count the two delinquency cases (and one other case) as civil cases.

Posted by Marcia Oddi on September 19, 2014 08:00 AM
Posted to Schumm - Commentary

Ind. Gov't. - "Indiana settles DCS adoption suit for $15 million"; What about Domestic violence budget cuts?

The ILB has a number of earlier posts under the heading "1,400 Indiana families sue Indiana DCS for unpaid subsidies." This post from Aug. 14, quoting a FWJG editorial, gives a good overview. It ends:

Still unclear is whether parents who adopted in good faith but have been waiting for years while struggling to help their adopted children deal with chronic illnesses, inherited drug addictions, or physical or emotional abuse will get significant retroactive payments from the state.
Late yesterday, Tom LoBianco of the AP reported:
INDIANAPOLIS — The Indiana Department of Child Services announced Thursday it has reached a settlement with adoptive families who alleged the state had reneged on promised payments.

The state will pay $15.1 million to about 1,800 families who adopted special needs children. The settlement was filed in LaPorte Superior Court on Thursday afternoon and still needs court approval.

The settlement follows shortly after Gov. Mike Pence announced last month that the state would resume paying subsidies to the adoptive families.

The state took over adoption subsidies in 2009 from the counties but did not continue the practice of paying additional aid for families who adopted special needs children, which ultimately led to the lawsuit. The settlement covers payments dating back to 2009. * * *

Irwin Levin, the Indianapolis lawyer who filed the suit, said in a statement that the deal "will help adoptive families provide for the physical and emotional needs of the children. We're very happy the Governor and Director Bonaventura were cooperative and agreed to get the adoptive families the help they need."

Virginia Black of the South Bend Tribune has a comprehensive story here.

ILB: The domestic violence budget cuts issue (see ILB post here) was also briefly in the news yesterday, with an IndyStar reporter initially tweeting: "BREAKING: Anti-domestic violence group says state has agreed to restore funding it had planned to withhold," but an hour later tweeting "The governor's office is now saying there is no agreement with anti-domestic violence group on funding. I'm trying to sort this out."

TomLoBianco of the AP reported late yesterday:

INDIANAPOLIS – An advocate for victims of domestic violence said her group reached agreement Thursday with Indiana officials over funding for the private agencies serving them, but a state official denied there was a deal.

Indiana Coalition Against Domestic Violence director Laura Berry said that her group has reached a deal with the state that avoids about $1 million in cuts that had been planned.

The issue was poised to boil over Friday at a meeting of the Indiana Criminal Justice Institute's board of trustees. But Barry said the deal calls for a separate meeting in two weeks where all of the $3.5 million allocated by lawmakers will be approved by state officials.

Advocates have said the administration of Gov. Mike Pence had been poised to cut roughly $160,000 in funding and place a hold on another roughly $826,000 in aid for 53 domestic violence shelters around the state.

Spokesman Gary Abell of the Indiana Criminal Justice Institute, which administers the funding, disputed Berry's contention.

"Nothing has changed," Abell said Thursday evening. He said the funding was still up for discussion at Friday's meeting.

Abell also said no further meetings were planned.

Earlier in the day, he had said there was never a plan to cut any funding and added that the $826,000 was only being held until shelters could show how they planned to use the money.

The fight over state funding for domestic violence cropped up amid the national debate over the NFL player Ray Rice's suspension for domestic abuse. It also stems from budget constraints in Indiana, which many Democrats and social services advocates say have been artificially created by Republicans.

Pence has continued a practice of cutting agency budgets at the start of each year to maintain the state's significant cash reserves. The state has maintained a $2 billion cash savings, even as tax collections have fallen off.

Pence's budget director told other members of the State Budget Committee last month that state agencies were already preparing for cuts again this year unless tax collections improve.

Posted by Marcia Oddi on September 19, 2014 07:33 AM
Posted to Indiana Government

Thursday, September 18, 2014

Ind. Courts - "At IU McKinney today for this year’s Government Practice Section Debate. 2014 topic: Judicial Selection"

For those of you who didn't follow this on Twitter, @IndyBar has tweeted from a debate today between former Indiana Supreme Court Justice Ted Boehm and Tom John of Ice Miller. Here are the tweets, read in reverse order. Check out the photos.

Big thanks to Justice Boehm, Tom John & Judge Oakes. Great display of civility while discussing a hot topic!

In addition to our esteemed debaters, great questions are coming in from former Justice Sullivan, Judge Baker & variety of top notch attys.

John: Need more confidence in judiciary? Require more disclosure. Judges unlikely to jeopardize careers over small donations from lawyers

Boehm: Current system won’t survive constitutional attack bc it places meaningful vote only in the hands of those who associate with a party

John: if your premise is that election system is a bad process, shouldn’t the judges it produces also be bad? Not the case in Marion county

Now Tom John gets his shot, presenting the case for electing judges.

Boehm: elections cause judges to be in the business of raising money. Who do they raise money from? Lawyers.

Justice Boehm is up first, arguing for merit selection.

Judge Tim Oakes introduces today's debaters: former Sup Ct Justice Ted Boehm & Tom John of Ice Miller.

We’re at @IUMcKinney today for this year’s Government Practice Section Debate. 2014 topic: Judicial Selection.

Posted by Marcia Oddi on September 18, 2014 04:55 PM
Posted to Indiana Courts

Environment - "Single-Stream Recycling Is Easier for Consumers, But Is It Better?"

See this article by Sarah Laskow in The Atlantic.

"Indy sued over $45M recycling center deal" was the heading of this Sept. 12th ILB post.

Posted by Marcia Oddi on September 18, 2014 04:41 PM
Posted to Environment

Ind. Decisions - Tax Court decides one today

In Nick Popovich v. Indiana Department of State Revenue, a 15-page opinion in a lawsuit initiated in 2010 in which there have been several rulings (here is the docket), Judge Wentworth writes:

This matter concerns Nick Popovich’s motion for default judgment, costs, and attorney’s fees as sanctions for the Indiana Department of State Revenue’s purported spoliation of evidence and discovery abuses. The Court denies Popovich’s motion. * * *

As the Court has noted previously, the discovery process in this case has been acrimonious. See Popovich v. Indiana Dep’t of State Revenue (Popovich II), 7 N.E.3d 419, 423 (Ind. Tax Ct. 2014), reh’g denied, 13 N.E.3d 954 (Popovich III) (Ind. Tax Ct. 2014). Indeed, the parties have used the discovery process not as a mechanism to unearth all relevant facts and evidence, but rather as an opportunity for gamesmanship, which engendered secrecy, incivility, and distrust. While the Court does not condone this behavior, it cannot infer from the facts before it that the Department intentionally or even negligently destroyed, mutilated, or altered Popovich’s 2003 transmittal envelope. Nor can the Court infer from the facts that the Department conspired to supplant Popovich’s 2003 transmittal envelope with his ex-wife’s transmittal envelope. Accordingly, Popovich has not shown that the Department’s discovery misdeeds warrant the entry of a default judgment and an award of all litigation expenses, including attorney’s fees.

Conclusion. For the above stated reasons, the Court DENIES Popovich’s Motion for Trial Rule 37 Sanctions, Including Judgment and Fees. The Court will schedule, by separate order, an Indiana Trial Rule 37(A)(4) hearing on the propriety of expenses given its resolution of Popovich v. Indiana Department of State Revenue (Popovich I), 7 N.E.3d 406 (Ind. Tax Ct. 2014), Popovich II, and Popovich III.

Posted by Marcia Oddi on September 18, 2014 02:59 PM
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - "Starke County Settles Lawsuit With Former Treasurer"

The ILB has had a long list of posts, the most recent from Oct. 25, 2012, on the removal of Starke County Treasurer Linda Belork from office in 2011, and her reinstatement by court order on Oct. 18, 2012.

Today Mary Perren reports for WKVI K99.3:

Starke County officials have settled the lawsuit filed by a former elected official. Linda Belork was exonerated of wrongdoing in 2012 after the Starke County Commissioners removed her from office in August of 2011.

That action was prompted by fund balance discrepancies discovered in a state audit of the Starke County Treasurer’s office. Further investigation found a clerical error was to blame for the missing money. Belork filed a counterclaim against the county, and both sides agreed to work with a court-appointed mediator in an attempt to resolve the issue. Court records indicate an agreement was reached last Thursday, Sept. 11. On Monday the Starke County Council approved a request from the commissioners to transfer $138,000 from the county’s rainy day fund to settle the lawsuit. County attorney Marty Lucas is hopeful this will resolve the issue.

Posted by Marcia Oddi on September 18, 2014 02:35 PM
Posted to Indiana Government

Ind. Gov't. - More on: "Porter Co. prosecutor says he’s exempt from anti-nepotism laws "

Updating this post from a few minutes ago, Lafayette attorney Doug Masson has sent along this July 11, 2012 memo from State Court Administration to "Judicial Officers" re whether the new county nepotism law applies to judges and judicial employees.

Posted by Marcia Oddi on September 18, 2014 01:58 PM
Posted to Indiana Courts | Indiana Government

Ind. Courts - Supreme Court hears argument on the meaning of "annoying" in our public intoxication statute

Oral argument took place this morning in the case of Rodregus Morgan v. State of Indiana. This is the case the ILB posted about yesterday, here.

If you want to watch an example of a good oral argument, with the attorneys and justices all actively engaged, it is now available for viewing here.

Posted by Marcia Oddi on September 18, 2014 01:49 PM
Posted to Indiana Courts

Ind. Gov't. - "Porter Co. prosecutor says he’s exempt from anti-nepotism laws "

An interesting story today by Amy Lavalley of the Gary Post-Tribune. Read it all; this part particularly caught my eye (the employment bifurcation comes up often in county budgeting disputes involving local judges):

VALPARAISO — Porter County Prosecutor Brian Gensel’s sons are working in his office, taking files home and digitally scanning them so they can be archived.

Gensel said he isn’t covered by a state law or a county ordinance against nepotism in public offices and doesn’t have to file an affidavit with the county that he will abide by those rules.

“The prosecutor actually is technically employed by a judicial circuit” and is exempt from the law, he said, citing a ruling by the Indiana Prosecuting Attorneys Council to that effect. “I’m a state employee. I get a $5,000 supplement (from the county), but that doesn’t make me a county employee.”

As for the anti-nepotism rules, Gensel said he didn’t think they were “meant to cover part-time teenage jobs.”

Posted by Marcia Oddi on September 18, 2014 01:16 PM
Posted to Indiana Government

Ind. Gov't. - Purdue student points out what should have been obvious to all

Stacy Bogan, a Purdue University student from West Lafayette, has an excellent guest opinion piece today in the Lafayette Journal & Courier:

The current and former commissioners for Indiana’s higher education system have proposed a bizarre solution to the problem of low degree completion rates among community college students.

In Teresa Lubbers and Stan Jones’ Sept. 14 guest column, they note that “students who take 15 or more credits per semester earn better grades, are more likely to stay enrolled in school, and ... are far more likely to graduate (than those carrying 12 credits)”. These commissioners have concluded that all students should, therefore, carry a 15-credit course load.

This is illogical. It’s akin to saying to a group of people who couldn’t haul 12 pounds of rocks up a hill, “Oh, if you’d been hauling 15 pounds of rocks, you would have succeeded.”

A more intelligent approach would be to look at the factors that distinguish students taking 15 credits from those taking 12.

I’m a returning adult student (at Purdue University), so I match the profile of community college students, 70 percent of whom are older than 22, 27 percent of whom have children, and 17 percent of whom are single parents. The commissioners asserted that our population takes 12 credit hours because we are have been discouraged from working harder. I can tell you that I am taking 12 credits because I have a job, children, house and older parents to care for.

Loans help, but the cost of attendance on which financial aid is based is wildly inaccurate. Housing and food are supposed to cost me $9,370, travel $210 and miscellaneous expenses $1,550. So $11,130. But I have two children. The federal poverty level for a family of three is $19,790 — cost of living calculations for adult students with children ought to bring me up to at least that level. But they don’t. I’m allowed to borrow an additional $5,000 to pay for child care, but nothing for feeding them. Never mind shoes, bicycles and the time my daughter broke her arm. Last year I had to buy a new hot water heater. If I hadn’t had some cash reserves when I enrolled at Purdue, I would have had to quit (hot water’s not exactly optional).

It may be true that students who can carry 15 credits successfully are more likely to graduate. It’s not because of the credits, though; it’s because they had more money and fewer demands on their time to begin with. Excluding everyone else might improve graduation rates, but only because the pool of participants will be drastically smaller.

Posted by Marcia Oddi on September 18, 2014 01:06 PM
Posted to Indiana Government

Environment - "Construction project aimed at preventing Asian carp from migrating through Fort Wayne and reaching the Great Lakes"

Brian Francisco of the Fort Wayne Journal Gazette reports:

The U.S. Army Corps of Engineers is spearheading the Eagle Marsh project as a means of controlling the spread of invasive species that compete for food and habitat with native species. Asian carp have been seen swimming in the Wabash River, which connects to Eagle Marsh through the Little River. No carp have been found in the Little River.

Eagle Marsh also drains into the Maumee River, which flows to Lake Erie. The fear is that if carp would reach the wetland on the southwest outskirts of Fort Wayne, flooding could carry them to the Junk Ditch, the Maumee and Lake Erie, where they would threaten commercial and recreational fishing.

Plans are to rebuild nearly 9,100 feet of berm, obstructing a potential path for Asian carp.

Posted by Marcia Oddi on September 18, 2014 12:56 PM
Posted to Environment | Indiana Government

Ind. Gov't. - More on "Indiana Toll Road operator weighs bankruptcy, sale"

Updating this ILB post from Sept. 15th, Rick Callahan of the AP has a story today that reports:

INDIANAPOLIS – The state agency that oversees the Indiana Toll Road has given the highway’s debt-saddled private operator until late November to prove that it’s meeting its debt obligations amid reports that the company is considering filing for bankruptcy and selling off its multibillion-dollar Toll Road lease.

The Indiana Finance Authority sent a letter Aug. 26 to ITR Concession Co. giving the company 90 days to show that it can meet its obligations to its lenders in compliance with the company’s lease responsibilities, said Jim McGoff, the authority’s Toll Road oversight director. * * *

The Wall Street Journal reported last week that ITR Concession, based in Granger, was weighing a possible bankruptcy filing as company officials work to reduce their roughly $6 billion debt load through a debt restructuring that could set the stage for it to sell its Toll Road lease.

McGoff said the Finance Authority is aware that the company and its lenders “are in the process of finalizing negotiations for a debt settlement.”

Posted by Marcia Oddi on September 18, 2014 11:51 AM
Posted to Indiana Government

Courts - SCOTUS sends "Mixed signals on same-sex marriage"

Lyle Denniston of SCOTUSblog has an interesting commentary today that begins:

If Justice Ruth Bader Ginsburg was speaking for the Supreme Court on Tuesday night in Minnesota about how the Justices will deal with the same-sex marriage issue this Term, the question just may go untouched for a time. She seemed to be saying that, until there is a fresh split among federal appeals courts on the issue, there would be no need for the Court to move with dispatch to confront the constitutional controversy.

Those comments appeared to run directly counter to the impression the Court gave only a week earlier, when it rushed its planning to take up the question at its first Conference of the Term on September 29. Without waiting for all of the filings to come in on cases from five states, the Court staff — probably not acting independently — referred all seven pending petitions for that early review. That is almost unprecedented, under the Court’s rules and normal procedures.

Posted by Marcia Oddi on September 18, 2014 11:47 AM
Posted to Courts in general

Ind. Gov't. - "Domestic violence budget cuts assailed"

Niki Kelly reports today in the Fort Wayne Journal Gazette, clarifying a dispute that arose yesterday. Some quotes:

INDIANAPOLIS – The Indiana Coalition Against Domestic Violence is crying foul over cuts in funding to shelters and victims implemented by Gov. Mike Pence’s administration. * * *

“I want everything that is due to the program,” said Laura Berry, executive director of the coalition. “Our demand for services is off the charts, and we are in critical need.”

She added that the last two years the coalition has had to fight with the Indiana Criminal Justice Institute to get all the money that is appropriated to it.

The institute is the state agency that oversees and distributes the funding through grants.

“This is the wrong time to be on the wrong side of this issue,” Berry said.

But the anti-domestic violence advocates and the Pence administration offered radically different budget data.

“The media is being fed inaccurate information,” Pence spokeswoman Kara Brooks said. “Gov. Pence did not order cuts to the domestic violence fund for reversions or any other purpose.”

Later, though, Indiana Criminal Justice Institute spokesman Gary Abel did confirm that $344,000 of funding for the domestic violence prevention and treatment program was reverted to aid the state’s bottom line at the end of fiscal year 2014 in June.

All agencies were told by Pence’s Indiana Office of Management and Budget to revert money – or not spend everything appropriated.

In fact, for the recently ended fiscal year, the Indiana Criminal Justice Institute reverted more than $500,000 of its funding, or 8 percent of its appropriation. That means the majority of that money came from the domestic violence program.

Abel said the money was reverted because there was no plan submitted on how to use it. He said the agency is working with the groups this year to avoid a recurrence.

Berry said more money is slated to be reverted this year – about $160,000. And overall more than $1 million is being held back pending further information.

Berry is especially upset because she and other groups lobbied legislators in 2013 for additional money and $700,000 was added annually to the current two-year budget. But she said Pence hasn’t let them spend it all.

The issue will come to a head Friday when the Indiana Criminal Justice Institute Board of Trustees – all appointed by Pence – reviews the latest program grants.

Posted by Marcia Oddi on September 18, 2014 11:23 AM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Cheryl Welton v. Midland Funding, LLC as Assignee of Chase Bank USA, NA as Issuer of Disney Consumer Credit Card, an 8-page opinion, Judge Barnes writes:

Cheryl Welton appeals the denial of her Indiana Trial Rule 60(B) motion for relief from judgment granted to Midland Funding LLC (“Midland”). We affirm. * * *

Welton contends she demonstrated mistake, surprise, or excusable neglect by explaining that the failure to respond to the motion for summary judgment was the result of a calendaring error attributable to her attorney while he was establishing a new firm. She also claims her first motion for relief for judgment demonstrated her meritorious defense—that she paid the debt in 2010. Welton asserts that, by filing the motion for relief from judgment, she simply was seeking “the opportunity to respond to Midland’s summary judgment motion where the failure to do so resulted from mistake and excusable neglect.” * * *

We believe that the plain language of Trial Rule 56(I) allows a trial court to alter a time limit if a motion for extension of time is timely filed. It does not vest a trial court with the discretion to allow a party to file an untimely response simply because he or she had previously filed a timely motion for extension of time. To hold otherwise, would create the very uncertainty our supreme court sought to avoid in Mitchell.

Even if Welton’s motion for relief from judgment had been granted, Welton would not have been permitted to belatedly respond or designate evidence in opposition to Midland’s motion for summary judgment. Without a response, it is hard to imagine how the outcome of the summary judgment proceedings would have been different. Because vacating the judgment would have been an empty exercise, Welton has not shown she has a meritorious defense to Midland’s motion for summary judgment. Taking this with the fact that the trial court had already granted Welton relief from judgment once and the fact that Welton specifically asked for and was granted an extension until January 14, 2013, but still did not file a response, leads us to conclude that the trial court did not abuse its discretion in denying her second motion for relief from judgment. * * *

Welton has not shown that the trial court abused its discretion in denying her motion for relief from judgment. Welton’s challenge to the underlying grant of summary judgment for Midland is not available for our consideration. We affirm.

In Michael W. Sloan v. State of Indiana, a 23-page, 2-1 opinion, Judge Brown writes:
Michael W. Sloan appeals his conviction and sentence for child molesting as a class A felony. Sloan raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by excluding certain evidence; and II. Whether the court abused its discretion in sentencing him. We affirm in part, reverse in part, and remand. * * *

Based upon the record, we conclude that the evidence that Sloan wished to elicit from his mother would not have had a probable impact on the jury, that the exclusion of this evidence did not affect Sloan’s substantial rights, and that the trial court did not abuse its discretion in excluding this testimony. See Mathis v. State, 776 N.E.2d 1283, 1286-1287 (Ind. Ct. App. 2002) (holding that the trial court properly excluded evidence that would not have had any impact on the verdict), trans. denied. * * *

We find the record does not support the aggravating circumstances found by the trial court. Accordingly, we conclude the court abused its discretion in enhancing Sloan’s sentence by five years and remand with instructions to impose the advisory sentence of thirty years.

CONCLUSION. For the foregoing reasons, we affirm Sloan’s conviction for child molesting as a class A felony, reverse the sentencing order, and remand with instructions to impose the advisory sentence of thirty years served in the Department of Correction. Affirmed in part, reversed in part, and remanded.

BARNES, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 19] I concur with the majority’s conclusion that the trial court acted within its discretion in excluding certain evidence from trial. However, I respectfully dissent from the majority’s conclusion that the trial court abused its discretion in sentencing Sloan.

NFP civil opinions today (1):

Robert F. Lynn, Linda S. Lynn, and Robert Lynn Company, Inc. v. Ronnie Shaffer and Jane Shaffer (NFP)

NFP criminal opinions today (4):

Terence W. Lowery v. State of Indiana (NFP)

Darryl S. Newell v. State of Indiana (NFP)

Deadrian Boykins v. State of Indiana (NFP)

Joseph Wayer v. State of Indiana (NFP)

Posted by Marcia Oddi on September 18, 2014 10:32 AM
Posted to Ind. App.Ct. Decisions

Wednesday, September 17, 2014

Ind. Gov't. - "State files licensing action against four Indiana physicians for violations of abortion record-keeping, advice and consent laws"

Some quotes from a press release this afternoon from Attorney General Zoeller's office:

INDIANAPOLIS – Attorney General Greg Zoeller’s Office today filed administrative licensing complaints with the Indiana Medical Licensing Board against four physicians for violations of abortion record-keeping and advice and consent laws. The complaints ask the board to consider appropriate disciplinary action against the medical licenses of these doctors operating in Lake, St. Joseph and Marion counties. * * *

Indiana law requires physicians performing abortion procedures to submit terminated pregnancy reports to the Indiana State Department of Health (ISDH) for statistical purposes and comply with other advice and consent requirements and record-keeping requirements.

Most of the complaints appear to be against Dr. Ulrich Klopfer of South Bend. However:
The AG’s Office also filed administrative licensing complaints today against Dr. Resad Pasic, Dr. Kathleen Glover and Dr. Raymond Robinson, all of whom perform abortion procedures in Marion County and are in alleged violation of similar record-keeping and advice and consent laws regarding abortion procedures.

The AG’s Office requests a disciplinary hearing in the cases filed today, but the doctors’ licenses to practice remain active until further action by the licensing board.

There appears to be quite a bit of paperwork now required in conducting these doctors' practices, for example:
Klopfer filed pregnancy-termination reports with ISDH on 1,818 abortion procedures he performed between July 2012 and November 2013, but the complaint notes that all 1,818 reports were incomplete and incorrect in some way. Each report contained on average four omissions or errors involving medical and statistical information that must be reported to ISDH for statistical purposes. For example, all of Klopfer’s reports failed to identify the name or age of the father, offering a prepopulated response of “unknown” instead.
The statute involved is IC 16-34-2, Requirements for Performance of Abortion; Criminal Penalties.

Here is the complete press release.

Posted by Marcia Oddi on September 17, 2014 04:16 PM
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today

In State of Indiana v. Frank Greene, a 12-page, 5-0 opinion, Justice David writes:

Convicted of class B felony criminal confinement, Frank Greene alleged in his petition for post-conviction relief that his trial and appellate counsel provided ineffective assistance by failing to present allegedly controlling precedent from this Court and thus adequately challenge the sufficiency of the evidence underlying his conviction. Greene argued that had counsel submitted Long v. State, 743 N.E.2d 253 (Ind. 2001), to their respective courts, he would have obtained, at worse, a conviction for class D felony criminal confinement. Persuaded, the post-conviction court ordered his class B felony conviction reduced to a class D felony. The Court of Appeals affirmed [State v. Greene, Dec. 27, 2013], and the State appealed.

The validity of Greene’s post-conviction claim turns on the legitimacy of his argument that Long compelled a different result at trial. Specifically, he contends Long holds that in order for a defendant to be convicted of class B felony criminal confinement, the State must have proven beyond a reasonable doubt that serious bodily injury to the victim resulted when the victim was moved from one place to another. Concluding that Greene mischaracterizes Long, we find that the post-conviction court clearly erred in its judgment, as Greene’s counsel did not render ineffective assistance by failing to argue a misstatement of the law. * * *

As previously explained, the viability of Greene’s ineffective assistance of counsel claim turns on the strength of his assessment of Long, which he claims holds that serious bodily injury to the victim must occur during the course of the victim’s removal for a class B felony criminal confinement conviction to be upheld. Our review has revealed that Long and Redman actually hold that serious bodily injury to the victim must be sustained during the charged offense of criminal confinement: a defendant’s knowing or intentional forcible removal of the victim from one place to another. Thus, the victim must suffer serious bodily injury as the result of the act of forcible removal, whether or not the act of force occurs simultaneously with the act of removal.

What Greene argues his trial and appellate counsel should have argued, then, is not the law. By failing to present an incorrect interpretation of case law, Greene’s counsels’ conduct did not fall below an objective standard of reasonableness, and they did not render ineffective assistance. In deciding otherwise, the post-conviction court committed clear error. Under the facts of this case, the State presented more than sufficient evidence for the jury to infer that Greene’s act of force, i.e. his strangulation of Johnson, facilitated his removal of Johnson from one place to another and resulted in serious bodily injury to her.

Conclusion. We therefore reverse the post-conviction court’s modification of Greene’s conviction and sentence for class B felony criminal confinement.

Posted by Marcia Oddi on September 17, 2014 03:58 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - The state budgeting process for the 2015-2017 state budget is underway

Looking back at the 2013-2015 budget, one can access the initial requests of many of the agencies here.

For 2015-2017, all that is available online right now are the instructions sent out to the state agencies. The cover letter states that "it is imperative that agency budget requests be fully and timely completed by Friday, August 29 to assist in Governor Pence's submission of the next biennial State budget in the 2015 legislative session." The budgets are submitted electronically.

What happens next is detailed in this description of the budget preparation process on the State Budget Agency website (I have highlighted the time when I would anticipate public access to the agency submissions):

Budget Request Submission.

The budget process begins during even-numbered years with the State Budget Agency issuing Biennial Budget Instructions to state agencies. The instructions provide guidance to state agencies in submitting requests for funding. Each state agency prepares and submits a budget request, which includes a Current Services Budget, representing the cost of maintaining agency services at current levels. The budget submission may also contain New Services Requests, covering proposed increases, Capital Project Requests, covering one-time expenditures for the construction and maintenance of state facilities. In addition, the budget submission may include internal reallocations and budget reductions.

Budget Agency Review

The Budget Agency reviews the submitted budget requests and formulates recommendations. Budget review includes a detailed analysis of agency programs, operational performance, changes in population and cost trends, and other factors related to the efficient, effective use of public resources. The Budget Director discusses the analyses and recommendations, including any variances, with the Governor. The requests are adjusted as approved by the Governor, and then presented to the Budget Committee.

The Budget Committee

The Budget Committee is composed of four legislators – one Democrat and one Republican from both the House of Representatives and the Senate – and the Director of the Budget Agency. The Budget Committee holds public hearings with state agencies to outline their budget requests. After the hearings are completed and future revenue estimates are presented via the Revenue Forecast, the committee makes a single, comprehensive budget recommendation to the Governor.

Posted by Marcia Oddi on September 17, 2014 02:21 PM
Posted to Indiana Government

Ind. Courts - Supreme Court to hear argument tomorrow on the meaning of "annoying" in our public intoxication statute

In the second oral argument the Supreme Court will hear tomorrow morning, Rodregus Morgan v. State of Indiana (watch it here at 9:45 AM), the justices will address whether "annoys" in Indiana's public intoxication statute is unconstitutionally vague. The case has received a lot of media attention and also caught the attention of at least one late-night talk show host, Jimmy Fallon, whose brief reference occurs at 56 seconds into the monologue:

Posted by Marcia Oddi on September 17, 2014 12:54 PM
Posted to Upcoming Oral Arguments

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

For publication opinions today (0):

NFP civil opinions today (2):

Mark Keaton v. Douglas Goeglein (NFP)

City of Evansville v. Anna K. White (NFP)

NFP criminal opinions today (1):

Robert P. Benavides v. State of Indiana (NFP)

Posted by Marcia Oddi on September 17, 2014 11:10 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Yet another major BMV collection error, this one found by BMV

Updating this ILB post from yesterday, Tony Cook and Justin L. Mack have this story today in the Indianapolis Star. This quote is of interest:

Gov. Mike Pence has also authorized [BMV Commissioner Don] Snemis to hire an independent consulting firm to audit the BMV’s processes, procedures and STARS system. That move comes on top of an independent fee review the agency ordered last year.
The ILB recalls the earlier review. This Sept. 30, 2013 post quotes a Jon Murray story about the results of the earlier review, including:
Indianapolis law firm Barnes and Thornburg conducted the review of all fees following the BMV’s acknowledgment of the driver’s license overcharges.

“That review showed just how complex the statutes that govern fees are, and we found several errors that have led to both undercharges and overcharges on a number of fees,” Waddell said in the news release. “The BMV has taken immediate steps to address any overcharges by crediting affected motorists’ accounts and has corrected all overcharged fees going forward.”

Gillespie declined The Star’s request for a copy of Barnes and Thornburg’s fee study, saying it was protected by attorney-client privilege.

This Oct. 2, 2013 ILB post includes this quote from a Fort Wayne Journal Gazette editorial:
There’s also the $55,000 cost of hiring an Indianapolis law firm to conduct a study, a copy of which the BMV refused to give to the Indianapolis Star, citing attorney-client privilege.
ILB: So will the results of this new review be publicly accessible? And what about the earlier B&T review?

Posted by Marcia Oddi on September 17, 2014 10:00 AM
Posted to Indiana Government

Ind. Gov't. - "Sen, Mike Delph to be lauded for fighting same-sex marriage"

Bill McCleery reports today in the Indianapolis Star in a story that begins:

The Indiana Family Institute plans to name State Sen. Mike Delph as its “Legislator of the Year” on Thursday, citing the Carmel Republican’s “unflinching support of the proposed marriage amendment.”

Last winter, Delph fought furiously to bring a referendum on same-sex marriage to Indiana voters this fall. He earned a rebuke from his own party for harsh words against what he perceived as GOP legislative leaders’ lack of commitment to that cause.

The measure, known as HJR-3, would have asked voters whether the state’s constitution should define marriage as a compact solely between a man and woman. The proposed amendment failed to make it out of the Indiana General Assembly, but the fight made Delph a hero among some social conservatives and a villain among many wanting to legalize same-sex marriage.

In the fall election, Delph now faces a Democratic opponent, J.D. Ford, who is gay. * * *

Delph will receive the award at a reception Thursday preceding a dinner at which Gov. Mike Pence is scheduled to be the main speaker. The Indiana Family Institute describes itself as a faith-based organization that is “pro-family, pro-life and pro-religious liberty.” Pence is a past board member of the organization.

Posted by Marcia Oddi on September 17, 2014 09:51 AM
Posted to Indiana Government

Tuesday, September 16, 2014

Ind. Courts - "Judge resigns following Call 6 Investigation into wedding business"

Updating earlier ILB posts reporting on the WRTV6 investigation, Kara Kenney of Ch. 6 reports this evening in a breaking story that begins:

INDIANAPOLIS - Center Township Small Claims Court Judge Michelle Scott submitted her resignation Tuesday to Marion County Democratic Party chairman Joel Miller, Call 6 Investigator Kara Kenney reported.

The letter did not give a reason for Scott stepping down, however, her departure comes days after the Call 6 Investigators questioned whether Scott is using public resources to promote her private wedding business.

The Call 6 Investigators used a hidden camera at the City County Building and found public employees handing out business cards for Scott's wedding services, and those same government workers directing people to her private office, which is a block from the CCB.

Center Township Small Claims Court Judge Michelle Scott dodged questions last week about allegations she is using city and county resources to promote the private wedding business she runs on Market Street with her husband, Rich Scott.

Rule 1.3 of the judicial conduct code states "it is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind."

Scott’s last day is Oct. 3, according to her resignation letter.

Scott was defeated in the primary by attorney Brenda Roper, and Scott’s last day would have been Dec. 31.

Marion County Democratic Party chairman Joel Miller said they have to find a replacement for Scott before the November election, and the most likely candidate is Brenda Roper.

“That would be fairly common in this type of situation,” said Miller. “From the date of resignation starts at 30-day clock. We have to make the appointment for the person within that 30 days.”

Earlier today, Kenney had this story that began:
The judge who oversees Small Claims Courts in Marion County is drafting a rule change in response to a Call 6 Investigation that appeared to show a judge using public resources to promote her private wedding business.

Judge Louis Rosenberg, advisor for Small Claims Courts, told Call 6 Investigator Kara Kenney he is drafting a proposed amendment to the code of judicial conduct.

Rule 1.3, "Avoiding Abuse of the Prestige of Judicial Office," states a judge shall not use the prestige of judicial office to advance personal or economic interests of the judge or others.

Center Township Small Claims Court Judge Michelle Scott dodged questions last week about allegations she is using government resources to promote the private wedding business she runs with her husband, Rich Scott.

Posted by Marcia Oddi on September 16, 2014 05:02 PM
Posted to Indiana Courts

Ind. Decisions - Federal Judge Young reinstates the SSM lawsuit, Love v. Pence [Updated]

The ILB wrote at length about the lawsuit, Love v. Pence, on August 19th and August 20th. Love was the first same-sex marriage challenge filed in federal court in Indiana since the SCOTUS decision in Winston. And it was dismissed by Judge Richard Young on the grounds that "the Governor is not a proper party because the Plaintiffs’ injuries are not fairly traceable to him and cannot be redressed by him."

The Love plaintiffs filed a motion to reconsider. As the ILB wrote on Aug. 19:

[I]n their motion for reconsideration the plaintiffs quote at length from two memos from Governor Pence, the first ordering the state agencies to comply with the Baskin ruling, and then, when it was stayed, a second memo ordering the agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” The Love plaintiffs' argument that the Governor therefore does have authority to enforce the marriage law is quite convincing.

It appears that Judge Young thinks so too, although he has not yet (as far as I am aware) issued a ruling in the Love plaintiffs' motion to reconsider. Here is some of what he wrote today in Bowling re Governor Pence as a proper party defendant, sometimes echoing the Love motion for reconsideration ...

Now, nearly a month later, Judge Young has issued an 8-page "Entry on Plaintiffs' Motion to Reconsider" in Love v. Pence. He concludes:
In light of the new evidence, the court reinstates the married Plaintiffs’ claims that Section 31-11-1-1(b) are unconstitutional. The claims brought by the unmarried Plaintiffs remain dismissed, because the Governor cannot remedy the harms alleged by them. Thus, the court GRANTS in part and DENIES in part Plaintiffs’ motion (Filing No. 35). As a result, the court also VACATES its Entry on Plaintiffs’ motion for preliminary and permanent injunctive relief (Filing No. 33), which had denied that motion as moot.
[Updated 9/17/14] Charles D. Wilson of the AP has this story this afternoon. Some quotes:
A federal judge has reinstated four same-sex couples' claim against Indiana Gov. Mike Pence over the state's refusal to recognize gay marriages performed out of state.

Judge Richard Young said in a ruling Tuesday that he had initially dismissed the couples' claim against Pence, but he reinstated part of the lawsuit because Pence had shown he had power to enforce the ban despite claims that he had no such control.

"The Governor is vested with the executive authority in Indiana and has exercised his authority to declare how state executive agencies should act," Young said in his eight-page ruling.

Young says Pence demonstrated his authority in a pair of memos sent from his office to executive agencies instructing them on what to do following a ruling that struck down the ban. A federal appeals court also overturned the ban, and Indiana has asked the U.S. Supreme Court to hear the case. * * *

Young did not reinstate a part of the lawsuit that challenged the constitutionality of the ban's basic provision that only opposite-sex couples may marry in Indiana. Jennifer Drobac, a professor at Indiana University's McKinney School of Law who specializes in sexual orientation legal issues, said that part of the ban is enforced by county clerks, who were not named in the suit, while the part concerning out-of-state marriages is enforced by the state.

Hundreds of couples were married from June 25, when Young struck down the ban, to June 27, when the 7th U.S. Circuit Court of Appeals put the decision on hold. Pence's office initially told agencies to abide by Young's ruling. Then on July 7, he instructed executive branch agencies "to execute their functions as though the June 25 court order had not been issued."

Pence's decision, announced in memos from chief counsel Mark Ahearn, applies to state agencies that report to the governor's office and affects services controlled by those agencies, such as food stamps or the ability to file jointly for state taxes.

"It is clear that through these memoranda, the Governor is issuing instructions to state agencies regarding compliance with court orders," Tuesday's ruling said.

Posted by Marcia Oddi on September 16, 2014 04:38 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - “This is unlike any contempt case I have ever read about or heard about”

Yesterday the ILB reported that the Supreme Court had denied emergency transfer in a matter titled In the Matter of the Direct Contempt of Greg Goodnight, Mayor of Kokomo.

Today the Kokomo Perspective has a long story by Pat Munsey, headed "Leading law professor critical of Menges." Here is a sample from the story; you are urged to read the story in its entirety:

Joel M. Schumm, Clinical Professor of Law and Director of the Judicial Externship Program at Indiana University’s Robert H. McKinney School Law, has followed the recent conflict between the two officials, and he was surprised in how direct contempt was applied.

“This is unlike any contempt case I have ever read about or heard about,” said Schumm. “Usually, direct contempt cases are things that happen in the courtroom, and it is clear that the person’s intent is to disrupt the proceeding. This is some distance from that.”

But it is the audacity displayed by the judge over time that has Schumm most intrigued. Being aware of several past incidents in which Menges pursued contempt charges -- from the protestors of the Occupy Kokomo movement, to the jailing of a woman last year because of a crying baby in the courtroom belonging to someone else, to the contempt brought against Goodnight, Schumm places Menges’ conduct in a peculiar category.

Marion County Superior Court Judge Kimberly Brown was removed from the bench in March on 47 charges of misconduct. The Indiana Commission on Judicial Qualifications found that Brown had delayed the release of several defendants from jail, failed to supervised her court employees, and created a hostile work environment.

“If you look at the judicial canons about how judges are supposed to behave, and if you look at the Kimberly Brown case, the things she was alleged doing got her removed from the bench,” said Schumm. “Hers seem mild compared to some of the things this guy has done.”

Posted by Marcia Oddi on September 16, 2014 04:17 PM
Posted to Indiana Courts

Ind. Gov't. - Still more on: Controversy about Indiana public employee salary databases

The ILB has had two posts, on Aug. 19th and Sept. 2nd, under the heading "Controversy about Indiana public employee salary databases." One of the questions raised, to quote an IndyStar story, is whether the "Indiana Gateway for Government, which [shows] * * * just how much money every teacher, police officer and city council member brought home last year," should continue to include doctors and staff at county hospitals. Steve Key of the Hoosier State Press Association says "yes", explaining in his monthly column, this month titled Salaries tell about more than money," that the county hospital salary information "offers a window into the effectiveness of county hospital leadership."

The Indiana Hospital Association wants the state Board of Accounts to remove the salaries of doctors working for county hospitals from a database of public employees.

The list is a record the public can tap to see what individual public employees and officials are paid.

The hospital association points out that county hospitals are self-sufficient entities that don’t receive tax dollars.

Officials say public access to salary information puts county hospitals at a competitive disadvantage to private hospitals in the retention and recruitment of physicians.

I understand that point of view, but the fact remains that leadership of county hospitals is tied to county government.

The assets of the county hospital belong to taxpayers. The fiscal health of a county hospital has implications for the health of their communities and the economic strength of those communities.

County commissioners appoint the boards that operate county hospitals. Those decisions can have a dramatic impact on the provision of health care and the ability of county hospitals to compete with neighboring private hospitals.

Those boards make decisions on the building of new wings and the purchase of new diagnostic and treatment equipment.

The boards approve strategic planning concerning the hiring and level of financial support for new general practice doctors and where those doctors’ offices will be located within the hospital’s geographic sphere of influence.

Those doctors feed patients into the hospital.

The boards also make decisions on specialty areas of medicine, including preventive and surgical.

All of these decisions build a hospital’s reputation in a competitive health care market.

Savvy Hoosiers make conscious decisions about who they want to treat their heart ailment or sports injury.

So while county hospitals may be in a position where they don’t need to spend tax dollars, the tie between county government and those hospitals is strong, and citizens have a vested interest in the operation of those hospitals.

So what does that have to do with public knowledge of doctors’ compensation?

In a period of competition between hospitals, public and private, and an era where rural hospitals struggle to attract needed physicians to care for citizens and maintain a county hospital’s bottom line, what physicians are paid is relevant.

Is the struggle to lure young physicians a factor of salary offered, rather than rural location? Does the county hospital need to over-compensate for the lack of cultural amenities with a higher salary offer?

The ability for the public to make comparisons between their county hospital and similarly situated rural county hospitals may point to a leadership issue with the board.

The inability to hire particular specialists may push county residents to take the longer drive outside the county for medical care. Not only is this an inconvenience to county residents, but in the long run it may damage the financial viability of the county hospital.

A financially weak county hospital not only can impact the level of health care for that county, but it can impact the local economy.

County hospitals are often one of the largest employers in a county. If the hospital isn’t doing well financially, there can be a ripple effect for the community.

And if the reputation of the county hospital is poor, it could play a role in the decision of companies looking to choose where to build a new manufacturing plant or other industry.

So while I understand the competitive concern of county hospitals, I vote for continued access to data that offers a window into the effectiveness of county hospital leadership.

It’s directly linked to the leadership of elected county officials.

Steve Key is executive director and general counsel for HSPA.

Posted by Marcia Oddi on September 16, 2014 03:37 PM
Posted to Indiana Government

Indiana Courts - "Electoral Chaos in Wisconsin"

In 2007 the 7th Circuit decided the Indiana voter ID case, Crawford v. Rokita. This week the 7th Circuit ruled in another voter ID case, this one re the State of Wisconsin, Frank v. Walker. Today the NY Times writes in an editorial that begins:

It is difficult to understand the reasoning of the federal appeals court panel that permitted Wisconsin officials to enforce a controversial voter ID law less than two months before Election Day. That’s partly because the panel’s five-paragraph order, issued late Friday only hours after oral arguments, offered the barest rationale for lifting the stay that Judge Lynn Adelman of the federal district court had placed on the law in April.

Judge Adelman issued a remarkably thorough 70-page opinion finding that the law violated both the Voting Rights Act and the Constitution by making voting harder for a substantial number of Wisconsinites — disproportionately those who are minority and poorer, and who tend to vote Democratic. (The law, passed in 2011 by a Republican-controlled Legislature but since tied up in lawsuits, requires prospective voters to present a government-issued photo ID, like a driver’s license or passport.)

Regardless of how the appeals panel eventually responds to the merits of Judge Adelman’s ruling, its interim decision to lift the stay has thrown the Wisconsin midterm elections into chaos. The state had already mailed out almost 12,000 absentee ballots that did not include any identification requirement. It is unclear how those ballots will be counted. Officials say recent fixes in the law make it easier to get an ID, but that may not help hundreds of thousands of residents get the required ID in time.

Rick Hasen, a professor of election law at the University of California, Irvine, called the panel’s decision “a big, big mistake” on his blog. He added: “It is hard enough to administer an election with set rules — much less to change the rules midstream.”

Read the NYT editorial here; it has many additional links.

For a different take, see this post today at Wisconsin Appellate Law.

Posted by Marcia Oddi on September 16, 2014 01:38 PM
Posted to Indiana Courts

Ind. Gov't. - Yet another major BMV collection error, this one found by BMV

From a news release issued by BMV this afternoon:

BMV Announces Excise Tax Refund
Governor Authorizes Independent Audit of BMV Processes

Indianapolis, IN – Don Snemis, Commissioner of the Indiana Bureau of Motor Vehicles (BMV) announced today that the BMV has determined that some customers are entitled to excise tax refunds. The BMV will work with the Indiana Department of Revenue to issue those refunds.

“The BMV has determined that some Hoosier’s vehicles were misclassified for excise tax purposes. As a result, those customers overpaid excise taxes when registering their vehicles. These misclassifications stretch back to 2004 when the BMV’s System Tracking and Record Support (STARS) computer system was implemented on a limited basis,” said Snemis. The STARS system was fully implemented in 2006.

Under Indiana law, vehicles are placed in a tax classification based on value. This value is determined by using the price of the vehicle and applying an adjustment factor based upon Consumer Price Index data related to increases in new automobile prices. This data is entered into the BMV’s STARS system in order to automatically calculate excise taxes when vehicles are registered. In some circumstances, the STARS system did not apply the adjustment factor, which caused some vehicles to be misclassified.

Snemis continued by saying “all previously misclassified vehicles will be reclassified using the proper data. Anyone who overpaid will be notified by mail and provided a pre-printed claim form, per Indiana law, to obtain a refund with interest. Hoosiers affected by this miscalculation can expect to receive a letter within about 30 days,” said Snemis.

The BMV has issued about 60 million registrations and collected about $3.4 billion in excise taxes since 2006. While final data is not yet available, it is believed that about 180,000 individuals were affected by this miscalculation, and the total refund is about $29 million plus interest.

The BMV distributes excise taxes to county and local governments on a regular basis. To mitigate the impact to local governments, the state will cover the upfront cost of refunds to taxpayers and will recoup the overpayment by adjusting distributions to local governments over the next two years. Additionally, the state will cover all interest payments.

Governor Mike Pence authorized BMV Commissioner Don Snemis to hire an independent consulting firm to audit the BMV’s processes, procedures and STARS system.

Posted by Marcia Oddi on September 16, 2014 01:31 PM
Posted to Indiana Government

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

For publication opinions today (3):

In Willie Jenkins v. Mary Jenkins, a 6-page opinion, Judge Crone writes:

Willie Jenkins (“Husband”) appeals the trial court’s order granting a motion to vacate contempt hearing filed by Mary Jenkins (“Wife”). The sole issue presented for our review is whether the trial court erred when it granted Wife’s motion and vacated the hearing without allowing Husband fifteen days to respond to the motion pursuant to local court rule. Concluding that it was not in the interests of justice for the trial court to ignore its rule and grant Wife’s motion prior to allowing Husband time for response, we reverse and remand for further proceedings. * * *

This is not one of those rare cases where the trial court’s adherence to its own procedural rule would defeat justice instead of serving as a means of obtaining orderly and speedy justice. Therefore, the trial court should have followed its own rule, and its failure to do so was error as a matter of law. We reverse the trial court’s order vacating the hearing and remand for further proceedings consistent with this opinion.

In State Farm Fire & Casualty Company v. Joseph Martin Radcliff and Coastal Property Management, LLC, a/k/a CPM Construction of Indiana , a 22-page opinion, Judge Riley writes:
Appellant-Plaintiff/Counterclaimant-Defendant, State Farm Fire & Casualty Company (State Farm), appeals the trial court’s denial of its Trial Rule 60(B) Motion, which rejected its request for relief on the limited issue of defamation after a jury awarded 14.5 million dollars to Appellees-Defendants/Counterclaimants-Plaintiffs, Joseph Martin Radcliff (Radcliff) and Coastal Property Management LLC, a/k/a/ CPM Construction of Indiana (CPM). We affirm. * * *

Based on the foregoing, we conclude that the trial court properly denied State Farm’s T.R. 60(B) Motion and affirm the trial court’s denial of State Farm’s request based on T.R. 60(D).

In Brent A. Mechling v. State of Indiana, a 7-page opinion, Judge Robb writes:
Brent Mechling appeals his three-year sentence for invasion of privacy, a Class D felony. Mechling raises two issues for our review: (1) whether the State is estopped from arguing Mechling waived his right to appeal in his plea agreement where the State failed to object when the trial court advised Mechling at the sentencing hearing about a right to appeal; (2) whether Mechling’s sentence is inappropriate in light of the nature of his offense and his character. Concluding Mechling validly waived the right to appeal his sentence in a written plea agreement and that the State is not estopped from enforcing the waiver provisions of Mechling’s plea, we affirm.
NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: K.B. (Minor Child) and W.B. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Roy C. Bebout v. State of Indiana (NFP)

Travis Booker v. State of Indiana (NFP)

Jerry C. Jackson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on September 16, 2014 01:21 PM
Posted to Ind. App.Ct. Decisions

Monday, September 15, 2014

Courts - Former Brooklyn Supreme Court trial judge debuts in new TV show, "Hot Bench"

Recall this story from the July 29, 2013 NY Times? Here is a sample from the story:

So go the negotiations in the courtroom of Patricia DiMango, a straight-talking State Supreme Court justice brought in to the Bronx from Brooklyn to do what she does best — put old cases to rest.

Since arriving in January, Justice DiMango has been an anomaly in the Bronx courts, where she is charged with clearing a backlog of felony cases that had swelled to crisis proportions. Her brash style and forceful personality, not to mention her relentless efficiency, have set her apart in a courthouse infamous for inaction.

In six months, she has churned through more than 500 cases, slashing by 40 percent the backlog of those over two years old, and leading senior court officials to declare a partial victory after years of failed efforts.

Well, thanks to Judge Judy, Justice DiMango is now TV Judge DiMango. Here is a long story in the Sept. 13th NY Daily News, about the new daytime show, that started today. [On ch. 10 at 1 pm in Indy] The long story with plenty of photos, reported by Nancy Dillon, begins:
LOS ANGELES — Don’t be fooled by the false eyelashes — she’s still dispensing real Brooklyn justice.

Former Brooklyn Supreme Court judge Patricia DiMango debuts in her new CBS syndicated daytime court show “Hot Bench” this Monday.

While she has traded in her Kings County court staff for a Kardashian-style glam squad that chases her around set, taming and spraying her Barbie blond locks, she’s retained the same outspoken wit and grit that made her a standout on Schermerhorn St. * * *

The new program is the first spinoff from TV juggernaut Judge Judy Sheindlin and features a trio of judges deciding small claims cases.

DiMango, 61, is a natural on camera alongside co-stars Tanya Acker and Larry Bakman, but her new career almost didn’t happen.

Posted by Marcia Oddi on September 15, 2014 04:32 PM
Posted to Courts in general

Ind. Decisions - Interesting 7th Circuit immigration ruling, circuit split

In Jean Jeudy v. Eric Holder, Jr., a 19-page opinion, Judge Hamilton writes:

Jean Jeudy petitions for review of an order of removal issued by the Board of Immigration Appeals (BIA). The BIA found that Jeudy was removable based on a 1995 drug offense and a 2000 voting offense. It also determined that he had not accrued the seven years of continuous residence in the United States required for a per-son in Jeudy’s situation to request discretionary cancellation of removal under 8 U.S.C. § 1229b(a). Jeudy has been a law-ful permanent resident since 1989, and he reached seven years of continuous residence in 1996. The BIA, however, applied the “stop-time rule” of § 1229b(d)(1), which took ef-fect in 1997 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. The new stop-time rule was applied to cut off Jeudy’s period of continuous presence as of the time of his 1995 drug offense. Jeudy’s petition for review challenges only this application of the stop-time rule to deny his eligibility to request cancellation of removal.

The BIA has determined that the stop-time rule applies retroactively to reach offenses that were committed before the rule’s effective date. See In re Robles-Urrea, 24 I. & N. Dec. 22, 27 (BIA 2006); In re Perez, 22 I. & N. Dec. 689, 692–93 (BIA 1999) (en banc). Jeudy counters that (a) the stop-time rule cannot be applied retroactively because Congress did not provide any clear statement of intent to that effect, as re-quired by Landgraf v. USI Film Products, 511 U.S. 244 (1994), and INS v. St. Cyr, 533 U.S. 289 (2001), and (b) applying the rule here would have an impermissible retroactive effect. This issue, which our court has not yet addressed, has divid-ed our colleagues in other circuits. See, e.g., Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1200–01 (9th Cir. 2006) (stop-time rule for offenses may not be applied retroactively); Peralta v. Gonzales, 441 F.3d 23, 29–31 (1st Cir. 2006) (opposing view).

We grant Jeudy’s petition. The statutory stop-time rule does not convey a clear intent on the part of Congress to govern retroactively, and the stop-time rule would have an impermissible retroactive effect if it were applied to Jeudy’s 1995 drug offense to render him ineligible for discretionary relief after he had already accumulated the seven years of continuous residence needed to be eligible.

Posted by Marcia Oddi on September 15, 2014 04:20 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: Institutional knowledge meaningless at Indianapolis Star?

Updating this ILB post from this morning, a reader directed my attention to this Romenesko post from Sept. 12th, headed "Gannett’s Indianapolis Star puts a reporter on the Beer, Wine and Coffee beat." Romenesko notes:

There are many congratulations for Amy Haneline in the replies – but there’s at least one raised eyebrow, too: “So IndyStar cuts back education coverage and adds a reporter to the beer, wine and coffee beat? Congrats!”
Also in the post, a link to a 10-page “internal use only” Indianapolis Newsroom Beats memo.

Posted by Marcia Oddi on September 15, 2014 04:09 PM
Posted to Indiana Law

Ind. Gov't. - "'Transparent' Indiana government often elusive"

From an AP article by Tom LoBianco, here in the FWJG:

When Gov. Mike Pence unveiled his new $9 million government management system, he ran down a list of ways it would make state government work better before ending with the promise that state government will also be more “transparent.”

But last week’s rollout of the new Management and Performance Hub, which Pence vowed will make Indiana the best state in the nation at crunching big data, was plagued with confusion – and a lack of transparency. Pence said it would help eliminate duplicative programs but didn’t identify which programs he’d targeted to cut. Even the most basic question – how much the state had paid for the program – proved problematic.

The promise of “transparent” government is almost universally popular among politicians. It evokes the vision of a truly “small d” democratic government that is answerable to the people and supports the concept of public trust.

But the talking point of transparency often remains just that: a talking point. * * *

Gerry Lanosga, a former Indianapolis-based investigative reporter, authored a 2013 report detailing the many holes in the state’s public access laws for the State Integrity project. Indiana was ranked in the middle (C-) among other states on a range of integrity issues but was awarded an “F” for formal public access to information.

Lanosga detailed numerous statutory loopholes in the state’s public records laws. The Pence administration has demonstrated one of those loopholes with a flat refusal to provide the governor’s calendar to media, citing precedent that Indiana’s governors are exempt from disclosure under broad (and discretionary) rules.

Other public records requests can take months to fill.

Maybe it’s time to redefine transparency.

Posted by Marcia Oddi on September 15, 2014 03:55 PM
Posted to Indiana Government

Ind. Courts - "Tainted shots fallout felt in legal system"

Virginia Black has this story today in the South Bend Tribune. The long story begins:

Sept. 15--Two years after the news broke of the hundreds of patients sickened by contaminated steroid solution, lawsuits on behalf of those patients against the company that made the solution and the clinics that bought and administered the injections are coming to life in civil courts.

South Bend attorney Douglas Small is coordinating meningitis-related litigation for Indiana in a multi-district federal lawsuit in Boston against the company that made the faulty solution, New England Compounding Center. Small said he is limited by what he can say about pending litigation, but his firm's website says the owners and insurers of NECC have agreed in principal to a compensation fund of more than $100 million to be distributed to victims of the company's actions.

Yet lawsuits against the clinics that bought the solution -- against federal regulations, court papers allege -- and injected it into patients are just beginning to engender lively fights in court.

Small filed suit in April in Elkhart Superior Court for nearly 70 who were patients of Orthopedic and Sports Medicine Center of Northern Indiana, or OMSC, based in Elkhart. That lawsuit also names the company's Fort Wayne malpractice insurance carrier.

Three local people died as a result of receiving the tainted solution, the lawsuit alleges: Kathy Dillon of South Bend, and Viola Copsey and Jack Durben of southwestern Michigan.

Posted by Marcia Oddi on September 15, 2014 01:13 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Shelley Murphy v. Indiana Women's Prison and Correctional Medical Services, Inc. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: A.C., Minor Child, and R.A., Mother v. The Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of S.F. and A.D., T.F. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Jeremiah Lee Collins v. State of Indiana (NFP)

In the Matter of J.C. v. State of Indiana (NFP)

Michael A. Windhorn v. State of Indiana (NFP)

Brenda Beecher v. State of Indiana (NFP)

Joshua Batchelor v. State of Indiana (NFP)

Matthew J. Knight v. State of Indiana (NFP)

Ryan D. Smith v. State of Indiana (NFP)

Desmond J. Sanders v. State of Indiana (NFP)

Posted by Marcia Oddi on September 15, 2014 12:46 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - Institutional knowledge meaningless at Indianapolis Star?

The IBJ had a story this weekend by Anthony Schoettle headed "Indy Star loses bevy of sports veterans." Some quotes:

The Indianapolis Star sports department in one month has lost four reporters and a columnist with a combined 123 years of experience at the paper.

Well-known reporters Phil Richards, Mike Chappell, Phil B. Wilson and Mark Ambrogi left the state’s largest daily newspaper in September. And last month, columnist Bob Kravitz joined WTHR-TV Channel 13.

Throw in the 2013 departures of two other sports reporters—IU beat writer Terry Hutchens for and Indianapolis Colts and Indiana Pacers beat writer Mike Wells for ESPN—and about half The Star’s sports writing staff has turned over in 14 months.

And then this, coming from Richards:
“If institutional knowledge counts for anything, it will be a substantial deficit,” he said. “Nobody at the Star is local anymore. The Star has virtually no one with ties to the community and no one with a grasp of the local community. And I think that matters.”
ILB: And how is this relevant? Some of us are still mourning the transfer of the knowledgable Jon Murray from the court beat to local government, now several years ago. (Jon has since moved on to the Denver Post.) He was succeeded by a reporter with no court experience, who was in turn succeeded by Tim Evans. Today Evans has announced on Twitter:
I am shifting gears at @indystar - from covering courts/law to serving as new "Fighting For You" consumer advocate. My colleague @kristine_guerra taking over coverage of courts/law at @indystar.

Posted by Marcia Oddi on September 15, 2014 12:21 PM
Posted to Indiana Law

Ind. Decisions - Now both Judge Young's district court, and Judge Posner's 7th Circuit, SSM decisons have been stayed by the 7th Circuit

As expected, the 7th Circuit has granted the motion for stay of its decision in the Baskin v. Bogancases. The ruling:

IT IS ORDERED that the motion is GRANTED. The mandate in appeals 14‐2386, 14‐2387, and 14‐2388 is STAYED pending final disposition of petition for writ of certiorari. The stay will terminate automatically if the certiorari petition is denied or will terminate upon the judgment of the Supreme Court if the certiorari petition is granted.

Posted by Marcia Oddi on September 15, 2014 12:03 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Should Notre Dame police adhere to public records law?"

Here is the long story reported by Madeline Buckley and Margaret Fosmoe in the Sunday South Bend Tribune. The story begins:

SOUTH BEND -- In October 2010, University of Notre Dame junior Declan Sullivan died when the scissor lift on which he was filming a football team practice fell to the ground.

Three years later, Mark Ellsworth, hired as part of a crew to cut down trees to make way for a new campus parking lot, was killed by a falling tree.

Last weekend, a man was critically injured when he fell down a stairwell in the university's Main Building.

In all three cases, Notre Dame Security Police, an authorized police force under Indiana law, investigated. Yet there were no police reports made available and the three cases never showed up on the campus police log.

As mandated by the federal Clery Act, Notre Dame Security Police keeps a log of criminal incidents reported on campus. The Clery Act requires all colleges that participate in federal financial aid programs keep a record and disclose to the public information about certain crimes on and near their campuses.

But Notre Dame officials say the campus police force has no legal obligation to provide a log of accidents and other non-criminal incidents the department investigates.

The holes in the university's incident log raise the question: Should a fully certified police force be subject to Indiana's public records laws?

Meanwhile, other private universities and colleges in Indiana that have authorized police forces vary wildly in how those departments keep incident logs.

Some experts and state officials say sworn police officers -- even those working on private university campuses -- are under the purview of state law.

"If you have a police agency that is enforcing state law, that entity falls under the public records law," said Stephen Key, executive director and general counsel of the Hoosier State Press Association.

Public access to that information is critical so citizens know how agencies enforcing Indiana law are operating, Key said. When questions arise about such issues as police use of force, response time or level of professionalism, the public needs access to make an informed judgment about how the agencies are performing, he said.

"They can't address these issues if certain information is not made publicly available," he said. "It may be a private individual who is injured on private property, but it falls under the scope of the state."

Luke Britt, Indiana's public access counselor, said any police force deputized under state law is subject to the state's access to public records law.

"If they are under the badge, they are going to be a public law enforcement agency," Britt said.

There is much more to read in the story.

Posted by Marcia Oddi on September 15, 2014 11:11 AM
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending September 12, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the June 20, 2014 list.]

Here is the Clerk's transfer list for the week ending Friday, September 12, 2014. It is one page (and 1 case) long:

Posted by Marcia Oddi on September 15, 2014 10:48 AM
Posted to Indiana Transfer Lists

Ind. Courts - Indiana Bar exam report out this morning [Updated]

Changing past practice, those who took the test received results on Friday.

So far, the results from the July 2014 bar exam do not appear to be available on line. The ILB will check here later.

[Updated] July 2014 results are now available at the above link.

Posted by Marcia Oddi on September 15, 2014 08:51 AM
Posted to Indiana Courts

Ind. Courts - More on: NFP Decisions Cannot Be Cited — Or Can They?

Updating this ILB post from Sept. 10th, Prof. David R. Cleveland of the Appellate Advocacy Blog (A Member of the Law Professor Blogs Network) had this post on Sept. 12th. A few quotes:

Professor Joel Schumm noted on The Indiana Law Blog that the Indiana Supreme Court recently rejected a proposal to permit citation of memorandum decisions for as "persuasive precedent." The Indiana high court rejected even this compromise position without a single dissenting vote, making this the official Indiana position for the foreseeable future. * * *

I question whether any U.S. court has the authority to: 1) bar citation of its own opinions or 2) strip a decision of precedential value at the time of its issuance. Such actions seem to run afoul of various constitutional provisions and the fundamental nature of judicial power.

The late Judge Richard S. Arnold predicted that the federal rule against citation was doomed to fail. He recognized, long before others did, that judicial decisions were the very stuff of our system of justice. There is no substitute for them, and they are the kind of information that even a gag rule cannot fully suppress. He was right. In the federal system, unpublished opinions were routinely cited by both advocates and courts, and ultimately, the citation ban was abolished as untenable and undesirable.

One can hope that Indiana's Supreme Court will come to a similar conclusion the next time it confronts the issue.

Posted by Marcia Oddi on September 15, 2014 08:43 AM
Posted to Indiana Courts | Schumm - Commentary

Ind. Gov't. - "Indiana Toll Road operator weighs bankruptcy, sale"

This story by Joseph S. Pete appeared in the NWI Times late Friday. It begins (ILB emphasis):

The Indiana Toll Road operators are looking at filing for bankruptcy to get out from under $6 billion in debt and selling the right to operate the road, according to media reports.

Citing anonymous sources, the Wall Street Journal reported the road's operators, Spain's Cintra and Australia's Macquarie Group Ltd., have reached an agreement with their largest creditors to restructure debt in bankruptcy court and to sell a new party the rights to operate the road under the remainder of a $3.8 billion, 75-year lease.

The Indiana Toll Road Concession Co. would file for Chapter 11 bankruptcy, which involves the reorganization of debt and not liquidation, sell the right to operate the road, and funnel most of the sales proceeds to secured creditors, which are mostly hedge funds.

Toll Road operations should not be affected by any deal, according to a source familiar with the situation. Any bankruptcy filing or change in management would not impact drivers, truckers, Toll Road employees or communities that 157-mile toll road cuts through. Indiana would continue to own the road, which is lease in a public-private partnership.

Paula Chirhart, a senior vice president at the investment bank Macquarie, declined to comment.

The NWI Times had an earlier toll road bankruptcy story on June 20th - the full story is still accessible from the NWI Times.

Posted by Marcia Oddi on September 15, 2014 08:32 AM
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next [Updated]

This week's oral arguments before the Supreme Court (week of 9/15/14):

Thursday, Sept. 18

  • 9:00 AM - Jason Young v. Hood's Gardens, Inc. (29S02-1405-PL-314) After Young was injured while removing a tree stump from its property, Hood’s Gardens sued, seeking a declaration that it cannot be held liable to pay Young worker’s compensation benefits under IC 22-3-2-14(b), which imposes secondary liability in some situations where there is a contract for the performance of work exceeding $1,000 in value. The Hamilton Superior Court granted summary judgment to Hood’s Gardens after concluding that the evidence shows as a matter of law that the statutory minimum amount of value was not triggered and so Hood’s Gardens may not be held liable. A divided Court of Appeals panel affirmed. Young v. Hood’s Gardens, Inc., 2 N.E.3d 724 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a 2-1, Dec. 17, 2013 COA opinion (3rd case), where the dissent begins: "This case illustrates once again the marked difference in summary judgment procedure in Indiana as compared to federal practice."

  • 9:45 AM - Rodregus Morgan v. State of Indiana (49S02-1405-CR-325) Following a bench trial in the Marion Superior Court, Morgan was convicted of public intoxication and disorderly conduct. IC 7.1-5-1-3(a)(4) specifies that it is a Class B misdemeanor for a person to be in a public place in a state of intoxication if the person “harasses, annoys, or alarms another person.” The Court of Appeals held that the term “annoying” was void for vagueness. Morgan v. State, 4 N.E.3d 751 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a Feb. 13, 2014 COA opinion (3rd case) concluding: "Based on the foregoing, we conclude that Section (a)(4) of the public intoxication statute is unconstitutionally vague and cannot be the basis of Morgan’s conviction. We also conclude that there is sufficient evidence to uphold Morgan’s conviction for disorderly conduct."

  • 10:30 AM - Adoption of J.D.; IDCS v. N.E. (45S03-1406-AD-387) During the pendency of CHINS and termination of parental rights proceedings in the Juvenile Division of the Lake Superior Court, N.E., a maternal relative and the children’s former foster parent, petitioned in the Civil Division to adopt the two children. The Civil Division denied a motion filed by the Department of Child Services seeking to transfer the adoption proceedings to the Juvenile Division. The Court of Appeals affirmed on interlocutory appeal. Matter of Adoption of J.T.D., 5 N.E.3d 786 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: This oral argument will take place in the Statehouse Rotunda.]

    ILB: This was March 12, 2014 COA opinion holding:

    Our General Assembly has statutorily conferred jurisdiction of adoption proceedings exclusively to probate courts. In Lake County, the Civil Division has probate jurisdiction, and therefore, exclusive subject matter jurisdiction over adoption proceedings. DCS may not rely on local court rule, i.e. the Caseload Allocation Plan, to circumvent the Lake County Civil Division’s exclusive subject matter jurisdiction over adoption proceedings.
    As reported in this April 10th post, "The Indiana Department of Child Services recently expressed concern these hundreds of adoptions are 'at risk,' according to a court of appeals document."

Next week's oral arguments before the Supreme Court (week of 9/22/14):

Thursday, Sept. 25

  • 9:00 AM - State of Indiana v. Michael Cunningham (19A05-1310-CR-489) Cunningham’s vehicle had a broken tail light, and police stopped him. When he exited the car to examine the taillight himself, police conducted a pat-down search and found marijuana in Cunningham’s pocket, and when asked, Cunningham told them about a pipe in the car. Facing two Class A misdemeanor charges, Cunningham moved to suppress the evidence. The Dubois Superior Court granted the motion, and a divided Court of Appeals affirmed in State v. Cunningham, 4 N.E.3d 800 (Ind. Ct. App. 2014), trans. pending. The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This was a 2-1, Feb. 27, 2014 COA opinion (2nd case), where the dissent writes: "In my view, however, the circumstances did not necessitate that Cunningham exit his vehicle, and indeed he chose to do so with full knowledge that, if he exited the vehicle, it would result in a pat-down search."

  • 9:45 AM - In re Adoption of B.C.H. (41S04-1408-AD-515) The grandparents filed a motion to set aside an adoption decree on grounds they were defacto custodians of the child, and, therefore, they were "lawful custodians" under the adoption statute such that their written consent to the adoption was required and they were entitled to notice of the petition for adoption. The Johnson Superior Court denied the grandparents' motion. The Court of Appeals affirmed, with the majority holding “use of the phrase ‘lawful custody’ under Ind. Code § 31-19-10-1(a)(3) is equivalent to ‘legal custody,’ that is, court-ordered custody.” In the Matter of the Adoption of B.C.H., 7 N.E.3d 1000, 1005 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was an April 22nd, 2014 COA opinion, with a separate opinion "concurring in result".

  • 10:30 AM - Kenneth Griesemer v. State of Indiana (49S04-1408-CR-564) At his bench trial on charges of patronizing a prostitute, Griesemer defended on grounds he had been entrapped by police, but the Marion Superior Court convicted him. A divided Court of Appeals reversed, concluding that the State had not met its burden to establish that Griesemer was predisposed to commit the offense. Griesemer v. State, 10 N.E.3d 1015 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 2-1, May 23rd opinion where the majority concludes:

    Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law, and we must reverse Griesemer’s conviction. Reversed.

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 9/15/14):

Tuesday, Sept. 16

  • 1:00 PM - Burton v. State (49A02-1401-CR-10) Appellant-Defendant Dominique Burton appeals following his conviction for possession of cocaine. Burton contends that the evidence presented during trial is insufficient to sustain his conviction. Specifically, Burton claims that Appellee-Plaintiff the State of Indiana (the "State") failed to prove beyond a reasonable doubt that he constructively possessed or had knowledge of the presence of the cocaine in his vehicle. For its part, the State contends that the evidence presented at trial is sufficient to sustain Burton's conviction. The Scheduled Panel Members are: Judges Friedlander, Bailey and Bradford [Where:Western High School, Russiaville, IN]

Next week's oral arguments before the Court of Appeals (week of 9/22/14):

Tuesday, September 23

  • 1:00 PM - Ballentine v. State (20A03-1402-CR-84) After a traffic stop along the Indiana Toll Road led to a search of the van he was driving and the discovery of a handgun, a plastic bag containing marijuana, a scale containing cocaine residue, a drug ledger, a bag containing $1,753 in cash, and a bag full of empty plastic baggies, William Ballentine was charged with Class C felony possession of cocaine, Class A misdemeanor possession of marijuana, and Class A misdemeanor carrying a handgun without a license. He appeals following his conviction for possession of cocaine as a Class C felony and possession of marijuana, a Class A misdemeanor. Ballentine argues first that the State of Indiana did not prove beyond a reasonable doubt that he constructively possessed or had knowledge of the presence of the marijuana and cocaine that were discovered in the vehicle he was driving. He further contends that his aggregate six-year sentence is inappropriate in light of the nature of the offense and the character of the offender. The Scheduled Panel Members are: Judges Bailey, Robb and Mathias. [Where:East Noble High School, Kendallville]

Friday, September 26

  • 1:00 PM - McCloud v. State (48A02-1312-CR-1056) On Feb. 25, 2013, Officers Frazier and Boynton of the Anderson Police Department approached three men in a driveway to ask them if they knew of a man the police were searching for. The police believed that this man might be in the apartment complex across the street, an area known for its high drug activity. When the police approached the men, one of them, Marquise McCloud, recognized Officer Frazier and stated aloud, “Damn, Frazier.” Frazier also recognized McCloud as the man he had arrested three days earlier after McCloud had hidden marijuana and a handgun in the attic of a house. McCloud ducked behind a car in the driveway and began to attempt to pull something out of his coat pocket. Concerned that McCloud might be armed, Frazier drew his weapon and ordered McCloud to show his hands. McCloud initially refused to comply, but eventually raised his hands. Frazier performed a pat-down on McCloud and felt a large, hard object in McCloud’s front coat pocket, which he believed might be a knife. Upon emptying the contents of McCloud’s pockets, Frazier discovered a plastic bag containing cocaine. The State charged McCloud with Class A felony dealing in cocaine and Class A felony possession of cocaine within 1,000 feet of a family housing complex. The trial court denied McCloud’s motion to suppress the evidence found in the pat-down search, and the jury found McCloud not guilty of dealing in cocaine but guilty of possession of cocaine. The trial court sentenced McCloud to 40 years, with 33 years executed, two years on community corrections, and three years probation. McCloud argues on appeal that: (1) the admission of the evidence seized during the pat-down search was fundamental error because Frazier did not have reasonable suspicion to believe that McCloud was armed; (2) that the trial court abused its discretion in sentencing McCloud; and (3) that McCloud’s sentence is inappropriate in light of the nature of the offense and the character of the offender. The Scheduled Panel Members are: Judges Riley, Mathias and Crone. [Where:Wayne High School, Fort Wayne]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

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

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

Posted by Marcia Oddi on September 15, 2014 08:29 AM
Posted to Upcoming Oral Arguments