Friday, November 21, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Destination Yachts, Inc., and Sheldon Graber v. Jim R. Fine, a 9-page opinion, Judge May writes:

Destination Yachts, Inc., (“Destination”) and Sheldon Graber1 appeal the entry of judgment in favor of Jim R. Fine. Although they raise two issues, we find one dispositive: Whether the trial court abused its discretion by denying Destination’s and Graber’s request for a continuance and entering judgment in favor of Fine because Destination was not represented by counsel. Finding the trial court abused its discretion, we reverse and remand for further proceedings. * * *

In this case, the record does not reflect that any evidence was taken. Rather, the record makes clear the only reason judgment was entered against Destination was that Destination appeared without counsel. Indiana Small Claims Rule 8(C)(3) provides that claims by or against a corporate entity that exceed $1,500.00 must be defended or presented by counsel. However, that rule is silent with respect to how a trial court should proceed when a corporation appears without counsel. Because that rule provides no guidance, we turn to case law. * * *

We believe under these facts, and under our standard of review in this case of prima facie error, the denial of a motion to continue was an abuse of discretion. We are aware that Fine travelled from Las Vegas for the hearing and that returning at a later date may have inconvenienced him. However, inconvenience is not a reason to justify the denial of a continuance where the basic rights of representation and defense against a claim are at issue. As a result, we reverse and remand to the trial court for further proceedings.

In Deriq Watters v. State of Indiana, a 4-page opinion, Judge May writes:
Deriq Watters appeals the revocation of his probation. We reverse. * * *

At the hearing, the State submitted two uncertified documents: an Abstract of Judgment convicting Watters of Class B felony robbery in the Marion Superior Court, and a purported plea agreement resolving that same cause. Watters objected to both arguing they were inadmissible hearsay because they were uncertified. The court overruled Watters’ objections and entered the exhibits into evidence. After the hearing, the court ordered Watters to serve the remainder of his suspended sentence in the Department of Correction. * * *

In the case at hand, we do not have certified copies, affidavits, or testimony to substantiate the exhibits offered into evidence. * * *

While trial courts have the discretion to admit hearsay evidence at a probation revocation hearing, the admission must not violate the due process standards provided by the United States Supreme Court. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) (when a loss of liberty is at stake, the parolee is to be accorded due process). We decline to extend the lowered bar for admission of hearsay at probation revocation hearings to include evidence with no “indicia of reliability.” See Cox, 706 N.E.2d at 552 (court is not bound by the hearsay exclusion rule, but the hearsay must be reliable). Although there is no bright line test of this reliability, testimony of the parties directly involved, affidavits of parties directly involved, and certified copies would have sufficed without putting an undue burden on the State. As the State did not provide any of those indicia of reliability herein, we hold the evidence was inadmissible.

In Christopher M. Montgomery v. State of Indiana, a 34-page opinion, Judge Brown writes:
Pursuant to an order from the post-conviction court, Judge Grant W. Hawkins presiding, Christopher Montgomery filed this “new direct appeal on his convictions for Count I, Murder, and Count III, Neglect of a Dependent,” which the post-conviction court “limited to issues related to the introduction of 404(b) evidence and sufficiency consistent with [the] court’s findings.”

We first address an issue sua sponte, which is whether the post-conviction court erred when, following a determination that Montgomery received ineffective assistance of appellate counsel, it ordered that Montgomery be granted a second direct appeal.

Following this discussion, we address the two issues raised by Montgomery, which we revise and restate as: I. Whether the trial court abused its discretion by excluding certain evidence; and II. Whether his conviction of neglect of a dependent as a class B felony violates double jeopardy principles. * * *

For the foregoing reasons, we affirm Montgomery’s conviction for murder under Count I, reverse his conviction for neglect of a dependent as a class B felony under Count III, and remand with instructions to enter a conviction under Count III for neglect of a dependent as a class D felony and to sentence him to three years thereon, to be served consecutive to his conviction for murder under Count I.

In Antwonna Smith v. State of Indiana, a 9-page opinion, Judge May writes:
Antwonna Smith was convicted after a jury trial of Class D felony theft and Class D felony resisting law enforcement. Resisting law enforcement is a Class A misdemeanor, but when Smith committed the offense it could be enhanced to a Class D felony if the person “inflicts bodily injury on or otherwise causes bodily injury to another person.” IC 35-44.1-3-1. Smith’s conviction of resisting law enforcement was enhanced to a Class D felony on the ground she inflicted bodily injury after a police officer scraped his knuckle and fingertip while forcing Smith to the ground. Smith argues on appeal the enhancement was error because she did not “inflict” the injury on the officer and the “cause”3 of the injury was the officer’s action, not hers. We agree and therefore reverse and remand so the trial court may enter a conviction of resisting law enforcement as a Class A misdemeanor. * * *

Smith did not “inflict” an injury on the officer or “cause” the officer’s injury, and her conviction should not have been enhanced to a felony. Officer Jones scraped his knuckle and fingertip when he fell while forcing Smith to the ground, but we agree with Smith that she was “a passive part of the encounter” and “took no actions toward” him.

We acknowledge that in Whaley v. State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006), trans. denied, a panel of this court reached the opposite result. * * *

As we do not believe a person who is thrown to the ground necessarily “inflicts” or “causes” an injury suffered by the person who throws her to the ground, we decline to follow Whaley * * *

[ILB: The opinion then cites at length a 2009 COA order by then-CJ Baker. As a COA Order, it is not available on the Indiana Courts website, but it can be found in West and at Google Scholar: In re the Matter of C.F. and A.F.. It says in short:

[E]ach panel of this Court has coequal authority on an issue and considers any previous decisions by other panels but is not bound by those decisions. See, e.g., O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill.2d 421, 323 Ill. Dec. 2, 892 N.E.2d 994, 1014 n.4 (2008) (horizontal stare decisis is not an inexorable command, whereas vertical stare decisis is an obligation to follow the decisions of superior tribunals).
Today's opinion then concludes by distinguishing the facts of the two cases.]

In the instant case, Officer Jones chose to halt Smith’s resistance by throwing her to the ground, and the officer was injured in so doing. Unlike Whaley, Smith did not create a scenario in which Officer Jones’ only option in handcuffing her was to remove her hands from a location in which he could not reach.

As Smith did not inflict or directly cause Officer Jones’ injury, her conviction should not have been enhanced to a felony. We must therefore reverse and remand.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: A.P., P.M., & A.T. and S.T. v. The Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: Z.J.C. and L.C. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

John M. Gresko v. State of Indiana (NFP)

Charles Smith v. State of Indiana (NFP)

William A. Russell v. State of Indiana (NFP)

Posted by Marcia Oddi on November 21, 2014 10:59 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Jeffersonville City Court said to be missing records of 1,135 cases

Supplementing this ILB post from Nov. 18th, headed "Jeffersonville City Court in jeopardy of closing, City Judge blames State Police," quoting a story from Alex Schuman of WHAS11ABC, Schuman has a new story this morning. Some quotes:

Jeffersonville's City Court saves their files electronically. WHAS11 filed an open records request and received information showing the court's files are currently missing 1,135 cases from their records.

We received an anonymous tip after we covered the Jeffersonville City Council's first vote to move toward closing the city court.

The city court handles criminal misdemeanors, infractions, and ordinance violations. An infraction could be a traffic violation like speeding while a criminal misdemeanor could something as serious as a DUI.

Here's the breakdown of missing cases:

  • Infractions: 766
  • Ordinance Violations: 350
  • Criminal Misdemeanors: 19
According to the office of the city clerk, all the missing cases received verdicts and the criminals did go before the judge. The city clerk did not go on the record, but the deputy clerk called the situation, "frustrating."

"There are attorneys, even if attorney's aren't involved, the person who is in charge, [wants] information out of their file," said Jamie Miller, Jeffersonville's deputy city clerk. "Or the Army or FBI comes in and does a background check. We don't have that information if it's in the system. We can't give them anything, and that causes some issues."

Vicki Conlin, Jeffersonville city clerk, took control of the records on March 12, 2013. The cases go from getting filed by an officer, to the court, and then to the clerk's office.

Most of the lost records range from 2009 until 2012, and only two lost files are from 2013. * * *

WHAS11 asked court staff about who has administrative powers over the database, and could have possibly erased such a large number of files. The staff sent WHAS11 to Ken Pierce, Jeffersonville city court judge.

"I'm not the custodian of those records, nor have I been for the last year and a half," said Pierce. "I have know [sic.] idea where the went. Never once when I was custodian of those records did I have any question about those records. Never once did this come up."

Pierce was unaware of the 1,135 missing files until his interview with WHAS11. He said no one had contacted about the issue, and reiterated that the records have been controlled by the city clerk's office since March 2013.

"I do know that from the transfer from the old system to the new system - some files may have been lost," said Pierce. "I'm not sure which ones or how that may have happened. I also know that on occasion there are glitches in the system."

There are at least 14 listed administrators on the database, which include both the clerk and Judge Pierce.

WHAS11 reached out to the company that handles the court's electronic records, but have not yet responded to our inquiry about if anyone from the city has the capability to delete these files.

"I have no reason to believe than anyone has maliciously gone in and intentionally removed files," said Pierce.

The judge does not think the loss of these files should be considered a reason to shut down the city court, and said he hopes to learn how the records were lost.

ILB: Recall that yesterday the ILB wrote of the just announced Supreme Court changes to Adm. Rule 10:
[T]he order revises Administrative Rule 10 to make it clear that "All court records are the exclusive property of the courts and subject to the authority of the Supreme Court of Indiana." That means at whatever level.

Posted by Marcia Oddi on November 21, 2014 10:20 AM
Posted to Indiana Courts

Thursday, November 20, 2014

Ind. Decisions - "Judge sets aside Michael Dean Overstreet's death penalty"

Earlier today the ILB posted the Attorney General's statement re the decision of St. Joseph Superior Court Judge Jane Woodward Miller that Michael Dean Overstreet is not competent to be executed.

Now, in an updated story, Indianapolis Star reporter Vic Ryckaert reports the reaction of the prosecutor in the trial, which took place in 2000. From the story:

St. Joseph Superior Court Judge Jane Woodward Miller ruled Overstreet is not competent to be executed, in a 137-page decision released today.

Johnson County Prosecutor Brad Cooper, who was a deputy prosecutor on the team that won the conviction against Overstreet in 2000, issued a strongly worded reaction to The Star via a text message.

"I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn't even afford to drive up for the hearing," Cooper said.

"The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds people who worked to convict this animal."

The Indiana Supreme Court transferred Overstreet's case to the St. Joseph County court after Johnson Superior Court Judge Cynthia Emkes, who presided over Overstreet's trial, removed herself for health reasons. * * *

Miller's ruling laid out a detailed explanation as to why she sided with Overstreet's lawyers, who argued that he was delusional and has no "rational understanding" of why the state of Indiana plans to execute him.

"Overstreet spends at least twenty hours a day by himself," Miller wrote. "He lives in a world where voices tell him what to do and criticize him when they feel he has erred. Shadow people populate his world with such frequency that they no longer bother him; he views them, instead, like mice." * * *

Overstreet was sentenced to death for the 1997 murder and rape of Kelly Eckart, 18.

[More] A reader writes to ask: "How aren't the prosecutor's comments disciplinary-worthy?"

Posted by Marcia Oddi on November 20, 2014 02:44 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Order listing Supreme Court Justice assignments, effective immediately, and major technology oversight changes

Here is the assignments order. The biggest change, aside from Chief Justice Rush assuming the traditional CJ roles, is that Justice David has taken over the technology assignments formerly held by Justice Massa.

According to a press release:

All court technology projects will move forward under the direct supervision of the Supreme Court. Justice Steven David and Court of Appeals Judge Paul Mathias will lead the effort.
That change is memorialized in a separate order, which first explains the need for the change:
[P]rojects are currently spearheaded by various agencies and committees of the Supreme Court, which, itself, bears responsibility under the Indiana Constitution to oversee the projects as part of the Court’s supervision of the exercise of jurisdiction by all courts in the State as directed by Article 7, §4 of the Constitution of the State of Indiana.
And then continues:
IT IS NOW THEREFORE ORDERED that the supervision and oversight of court technology objectives, initiatives, and projects be consolidated under the authority of the Indiana Supreme Court, including administration of all functions heretofore performed by the Judicial Technology and Automation Committee [JTAC], the e-filing project, and appellate court technology ad hoc committees. The Court now appoints Supreme Court Justice Steven David and Court of Appeals Judge Paul Mathias to lead this integrated court technology effort on behalf of the Supreme Court, with Justice David also serving as the chair of the Judicial Technology Oversight Committee [JTOC], pursuant to Indiana Code § 33-23-17-3. Justice Mark Massa will serve as the chair of the Supreme Court’s Records Management Committee.
This is big, and it is underlined by the third order today, which repeals JTAC. In addition, the order revises Administrative Rule 10 to make it clear that "All court records are the exclusive property of the courts and subject to the authority of the Supreme Court of Indiana." That means at whatever level.

And these records are now explicitly to be "recorded and maintained pursuant to Supreme Court directives". Furthermore, "Each Clerk is the custodian of all court records pursuant to the directives of the Supreme Court of Indiana, and the judges of the trial courts directly served by the Clerk." Period.

Posted by Marcia Oddi on November 20, 2014 01:58 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Former Elkhart man’s wrongful imprisonment triggers $4.9 million payout, a fight among insurance companies"

The subhead to the long Elkhart Truth story by Jeff Parrott: "Chris Parish received $4.9 million in an out-of-court settlement after spending 10 years in prison for a crime he didn’t commit. Now, several insurance companies are in a legal battle over which one is responsible for paying." Interesting story.

Posted by Marcia Oddi on November 20, 2014 12:18 PM
Posted to Indiana Decisions

Ind. Decisions - "Attorney General’s Office’s statement on Overstreet competency ruling"

On Sept. 24, 2013, the Indiana Supreme Court ruled, 5-0:

Overstreet's claim is that his mental illness and present mental state render him not currently competent to be executed under Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). * * *

To meet the threshold showing, Overstreet points to evidence about his mental illness discussed in the earlier court opinions in his case. In addition, he has tendered a report from forensic psychiatrist Dr. Rahn K. Bailey, prepared after he examined Overstreet on two occasions earlier this year. The twenty-page document discusses the background of the case and Overstreet's past and current mental condition, and concludes that in Dr. Bailey's professional opinion, Overstreet does not have, and does not have the ability to produce, a rational understanding of why the State of Indiana plans to execute him. We find this sufficient to permit Overstreet to file a successive post-conviction petition asserting the claim that he is not currently competent to be executed.

Today AG Zoeller has announced:
INDIANAPOLIS – Judge Jane Woodward Miller, a St. Joseph County Superior Court judge serving as a special judge in Johnson County Superior Court 2, has ruled that Michael Dean Overstreet is not currently competent to be executed. Overstreet abducted, raped, and murdered Franklin College student Kelly Eckart in 1997, and he was convicted at a jury trial in 2000 and sentenced to death.

During a four-day hearing in South Bend in September, Overstreet’s defense attorneys had asked the court to find that Overstreet is not competent to be executed. In a 2007 decision in another case, the United States Supreme Court reaffirmed that death row inmates who are mentally ill cannot be executed if they cannot rationally understand why they are being executed and what execution means. * * *

At the September competency hearing, the Attorney General’s Office presented evidence that despite having a mental illness, Overstreet understands that he would be executed and that it is because of his heinous crimes.

Judge Miller’s ruling granting the defense’s petition for post-conviction relief means that Overstreet’s convictions and death sentence remain valid, but the State cannot carry out the sentence until and unless Overstreet becomes competent. The Attorney General’s Office is reviewing the ruling and will decide at a later date whether to appeal it to the Indiana Supreme Court.

Posted by Marcia Oddi on November 20, 2014 11:30 AM
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Inspector General recommendations to the General Assembly to strengthen public integrity laws

Here is the 26-page, Nov. 19, 2014 report from Inspector General David O. Thomas and State Ethics Director Cyndi Carrasco suggesting changes for consideration during the 2015 legislative session.

[h/t Niki Kelly, FWJG]

[More] Here is Kelly's preliminary story.

Posted by Marcia Oddi on November 20, 2014 11:23 AM
Posted to Indiana Government

Ind. Gov't. - "State Police Search Owen Co. Council Member's Home"

From 1340 AM WBIW (Bedford), some quotes from this story:

(GOSPORT) - Indiana State Police officers spent several hours Tuesday searching Angie Lawson's home near Gosport to locate hundreds of items -- from diamond rings to a Shiatsu foot massager -- that the Owen County Council member and former county auditor is suspected of buying with the county's Walmart credit cards.

ISP is in the midst of a months-long investigation into Lawson's suspected misuse of at least five Walmart credit cards issued to Owen County.

According to preliminary reports, Lawson may have spent $340,000 in county funds to purchase items for herself and her family.

Prosecutors have not yet charged Lawson with a crime, but the case is an active investigation. * * *

In court documents unsealed by Monroe Circuit Judge Marc Kellams, an ISP detective alleges Lawson diverted the Walmart bills to a post office box she shared with her husband and daughter, then issued online check payments using electronic signatures without sending the bills through her office and on to the county commissioners for review.

When the payments appeared in county bank statements, there would be check numbers correlating with dollar amounts, but the check recipients are not listed.

Court documents in the case state that there might be as many as 75 county-issued Walmart cards circulating and that Lawson may have given some to family members and friends.

She is also suspected of spending more than $18,000 in county funds for mail-order novelty items purchased from the Oriental Trading Co. and paying with a county check; not paying almost $50,000 in county health insurance premiums; and siphoning thousands from a county account that pays lawyers to represent indigent clients.

Lawson has not been charged with any crimes. Morgan County Deputy Prosecutor Bob Cline, who is overseeing the investigation, has yet to file any criminal charges and would not saywhen charges might come.

Lawson was terminated from her job as a deputy in the Owen County Auditor's Office in August after the allegations arose. Her annual salary was $27,860.

Posted by Marcia Oddi on November 20, 2014 11:17 AM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Joseph M. Johnson v. State of Indiana , a 9-page opinion, Judge Bailey writes:

Johnson raises one issue on appeal, which we restate as: whether the trial court erred when it denied Johnson’s motion to suppress evidence obtained during an investigatory traffic stop.

On December 28, 2013, Jay County Sheriff’s Deputy Brad Wendel (“Deputy Wendel”) began following a gold van heading north on Highway 1 in Jay County. He ran a registration check and found that the van was registered to Ashley Boyd (“Boyd”). After he requested a driver’s license check on Boyd, he discovered that Boyd’s license was suspended. Deputy Wendel followed the van for approximately two miles, until he was in a safe area to initiate a traffic stop. During that time, he observed no traffic violations.

After making the stop, Deputy Wendel approached the van and observed a driver, later identified as Johnson, and two passengers, one of which was Boyd. Deputy Wendel stated the reason for the traffic stop: that the van was registered to a suspended driver. Boyd spoke up from the backseat, identified herself as Ashley Boyd, and confirmed her license was suspended. Deputy Wendel later testified that he had no reason to believe that Boyd was lying.

Deputy Wendel then asked Johnson for his driver’s license, because he “wanted to confirm that the driver was not Ashley Boyd.” (Tr. at 14.) Johnson handed Deputy Wendel an identification card and informed the deputy that his driver’s license was also suspended. Deputy Wendel placed Johnson under arrest.

On January 8, 2014, Johnson was charged with Driving While Suspended, a Class A misdemeanor.1 On February 20, 2014, Johnson filed a motion to suppress all evidence obtained during the traffic stop, which he later amended on March 19, 2014. The trial court held a suppression hearing on March 19, 2014, and that same day, issued an order denying Johnson’s motion. * * *

Johnson contends that after passenger Boyd identified herself as the vehicle’s owner, Deputy Wendel became aware of “evidence or circumstances which indicate that the owner is not the driver.” Armfield, 918 N.E.2d at 322. Citing Holly, Johnson argues that Deputy Wendel should have ended the traffic stop after Boyd’s disclosure because “the reasonable articulable suspicion which initially justified the investigatory stop of [the] vehicle dissipated.” * * *

The facts show that before asking for Johnson’s identification, Deputy Wendel knew of evidence or circumstances that indicated that the registered owner was not the driver, but a backseat passenger. By his own testimony, he had no reason to disbelieve Boyd’s statement. In other words, he no longer had reasonable suspicion that Boyd was driving while suspended. As such, “there is simply nothing in this record justifying any further inquiry subsequent to the valid Terry stop.” Holly, 918 N.E.2d at 326. The deputy’s investigation should have ended there. * * *

Once Boyd identified herself and Deputy Wendel had no reason to disbelieve her, the deputy had no reasonable suspicion to ask Johnson for his license or otherwise extend the stop. To the extent that Deputy Wendel may have felt he needed to confirm Boyd’s truthful statement as to her identity, we fail to see how his request to see Johnson’s driver’s license could possibly confirm it.

Although the deputy had reasonable suspicion to initiate an investigatory traffic stop, we hold that the officer lacked reasonable suspicion to request Johnson’s identification and thus all subsequent investigation violated Johnson’s rights under the Fourth Amendment. Accordingly, the trial court erred in denying Johnson’s motion to suppress the evidence obtained after Boyd’s statement. Reversed and remanded.

NFP civil opinions today (1):

Certain Underwriters at Lloyd's London v. The Lee Group Shelbyville Holding Company, LLC (NFP)

NFP criminal opinions today (2):

Aron Smith v. State of Indiana (NFP)

Scott W. Nicol v. State of Indiana (NFP)

Posted by Marcia Oddi on November 20, 2014 10:46 AM
Posted to Ind. App.Ct. Decisions

Wednesday, November 19, 2014

Ind. Decisions - Tax Court posts an opinion today; and some info from the ILB

Since August 29th, the Tax Court had posted only two rulings, one on a petition for rehearing, the other the denial of a Motion for Trial Rule 37 sanctions.

Today the Tax Court has posted an additional decision.

The City of Greenfield and the Greenfield Fire Protection Territory v. The Ind. Dep't of Local Government Finance, a 14-page opinion, Sr. Judge Fisher writes:

The Greenfield Fire Protection Territory, which was established by the City of Greenfield and the unincorporated area of Center Township, Hancock County, Indiana (Center Township), is the only fire protection territory in Hancock County that has a uniform tax rate. In 2011, the Department of Local Government Finance (DLGF) issued a final determination pursuant to Public Law 172-2011, Section 164 that adjusted the Territory’s general fund levy for the 2012 budget year. The City of Greenfield and the Territory have appealed that final determination, claiming that it is arbitrary and capricious, not supported by substantial evidence, and in contravention of Article 4, Sections 22 and 23 of the Indiana Constitution. Upon review, the Court reverses. * * *

The lack of sufficient factual findings would typically require the Court to remand the matter to the DLGF. See Perez, 426 N.E.2d at 33-34; Pack, 935 N.E.2d at 1227-28. Here, however, the Court need not remand for this deficiency because the DLGF’s final determination is invalid for an entirely different reason. * * *

The certified administrative record and the three generally applicable provisions of Public Law 172-2011 regarding fire protection territories indicate that Public Law 172-2011, Section 164 could have been written to apply throughout the state because neither the Territory nor the circumstances surrounding its establishment are unique. Therefore, Public Law 172-2011, Section 164 contravenes the special legislation provisions set forth in Article 4, Section 23 of the Indiana Constitution. Accordingly, the DLGF’s final determination that adjusted the Territory’s general fund levy for the 2012 budget year pursuant to Public Law 172-2011, Section 164 is invalid.

CONCLUSION. For the above-stated reasons, the final determination of the DLGF is REVERSED. The Court REMANDS this matter to the DLGF with instructions to reinstate the City of Greenfield’s and Center Township’s original levies and tax rates for the 2012 budget year and take any other actions consistent with this opinion.

The Tax Court website indicates a second opinion, from Nov. 7, The University of Phoenix, Inc. v. Ind. Dep't of State Revenue, but that is an error. Here is the docket.

On an entirely different matter, people accessing the Appellate Court Docket today will see this message:

NOTICE: On Nov. 26, the dockets in Tax Court cases will not be updated with new case events while Tax Court cases are converted into a new case management system. The Clerk's Office will still process filings, orders, opinions, etc., received on Nov. 26, but entries representing those case events will not be added to the applicable case docket until the week of Dec. 1. Beginning Nov. 27, Tax Court case dockets will be available at
MyCase is the public access site for the Odyssey Case Management System. It is where users may access trial court dockets. (It is also the court site with the annoying CAPTCHA requirement). No further explanation of the change is provided.

Posted by Marcia Oddi on November 19, 2014 01:42 PM
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Governor Names Joseph L. Claypool to Serve Remainder of Term as Harrison County Judge

From the news release:

Indianapolis – Governor Mike Pence today appointed Joseph L. Claypool as Judge in the Harrison Superior Court for the remainder of the current term ending on December 31, 2014. Claypool’s appointment is effective November 25, 2014.

“With nearly four decades in the legal field, including regulatory and law enforcement experience, Joe Claypool is uniquely qualified to serve Hoosiers well as Harrison Superior Court Judge,” said Governor Pence.

Claypool was elected on November 4 to serve as Harrison County Judge beginning January 1, 2015. He works as an Indiana Gaming Enforcement Agent with the Indiana Gaming Commission. Prior to joining the Gaming Commission in 2006, Claypool worked as an arbitrator for the Financial Industry Regulatory Authority. Claypool has practiced law for 36 years, both as a partner in private law firms and as a sole practitioner, where he provided general business representation of corporate clients. He earned his B.S. from Indiana University and his J.D. from Indiana University Robert H. McKinney School of Law. He also holds an M.B.A. from the Indiana University Kelly School of Business.

Posted by Marcia Oddi on November 19, 2014 11:38 AM
Posted to Indiana Courts

Ind. Gov't. - Very disappointing news for anyone trying to watch the budget committee videocast

To anyone who tried to watch the videocast of the State Budget Committee hearing this morning, and possibly also this afternoon, you are out of luck.

Apparently the outside contractor that hosts the servers through which video streams had scheduled server maintenance without telling the House. The House has told the contractor to bring the servers back on line, and the contractor is in the process of trying to get the servers up and running. There is no estimated time for completion.

That means no video, and no archived video ...

Why is this important? Here is what I wrote earlier today:

The State Budget Committee hearings begin this morning at 10 AM in Room 404 of the Statehouse. They will be videocast. Here are the schedules for today and tomorrow. They don't resume again until Dec. 3rd.
Scheduled for today: Gaming Commission; Tax Court; Department of Child Services.

Posted by Marcia Oddi on November 19, 2014 11:30 AM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Sharon Handy v. P.C, Building Materials, Inc., PC Properties, Llc, David A. Stemler, and Karen L. Stemler, a 16-page, 2-1 opinion, Judge Crone writes:

Sharon Handy appeals the trial court’s entry of summary judgment in favor of P.C. Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler (collectively “PC”) on Handy’s negligence claim against PC. The sole issue presented for our review is whether the trial court properly entered summary judgment in favor of PC. Concluding that genuine issues of material fact remain for determination by a jury, we reverse and remand for further proceedings. * * *

Here, reasonable people could differ as to whether the granite countertops represented a known or obvious danger to Handy. Moreover, the obviousness of any danger does not resolve the issue, see Rhodes, 805 N.E.2d at 388, as questions remain whether PC: (1) knew or by the exercise of reasonable care should have realized that the granite involved an unreasonable risk of harm to Handy; (2) should have expected that she would not realize the unreasonable risk of harm of moving, pulling, or tipping the granite forward; and (3) failed to exercise reasonable care to protect her against the danger. In short, assuming that Handy was an invitee on the premises, genuine issues of material fact remain as to whether PC breached its duty of care to her. * * *

Reversed and remanded.
MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents in part with opinion. [that begins, on p. 15] While I agree with the majority’s conclusion regarding the extent of the designated evidence available for our review, I respectfully dissent from its conclusion that a genuine issue of material fact remains as to Handy’s status on the premises and PC’s corresponding duty of care. Although the majority could “affirmatively conclude that Handy was not a trespasser,” based on “the limited record,” it could not determine “as a matter of law whether Handy had an implied invitation to enter onto the premises, or merely permission to do so.”

In Phillip D. Mundy and Merle Jost v. State of Indiana , a 13-page opinion, Judge Mathias writes:
Phillip D. Mundy (“Mundy”) and Merle Jost (“Jost”) (collectively, “the Defendants”) were charged with Class D felony conspiracy to commit dealing in marijuana; Mundy was also charged with Class D felony maintaining a common nuisance. The Defendants filed motions to suppress certain evidence, which the trial court denied. The Defendants appeal from the trial court’s interlocutory order and present two issues, which we consolidate and restate as whether the police violated the Defendants’ constitutional rights to be free from unreasonable searches and seizures. Concluding that the actions of the police in this case were unreasonable under the circumstances, and therefore violative of Article 1, Section 11 of the Indiana Constitution, we reverse and remand. * * *

Under the facts and circumstances of the present case, we conclude that the conduct of the police detectives was not reasonable. The detectives’ intrusion onto the property at issue therefore ran afoul of Article 1, Section 11 of the Indiana Constitution. The search warrant that was subsequently issued based upon what the detectives observed on the property was therefore also improper. For all of these reasons, we reverse the trial court’s order denying the Defendants’ motions to suppress, and remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

Gared Holdings, Llc. v. Best Bolt Products, Inc. (NFP)

In the Matter of the Termination of Parent-Child Relationship of A.R. and M.R. (mother) v. Ind. Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Ronald Mitchell v. State of Indiana (NFP)

Torrence Brown v. State of Indiana (NFP)

Michael Stephen Angle v. State of Indiana (NFP)

Allan J. Reid v. State of Indiana (NFP)

Randal E. Crosley v. State of Indiana (NFP)

Thomas R. Cox v. State of Indiana (NFP)

Posted by Marcia Oddi on November 19, 2014 10:53 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Bosma wants to close ethics waiver loophole for certain public employees leaving state government

Tony Cook and Ryan Sabalow report today for the Indianapolis Star in a long story that begins:

House Speaker Brian Bosma said Tuesday he wants to close a loophole in the state’s ethics laws that allows state employees to avoid public scrutiny when they take jobs with companies they regulate.

His comments suggest that a pledge from House Republicans to take up ethics reform during the upcoming legislative session may extend beyond the rules governing lawmakers and include new requirements for the executive branch as well.

At issue is a state law that requires state employees to take at least a year off before working as a lobbyist or going to work for companies they once regulated. The law is intended to prevent companies from dangling lucrative jobs in front of state employees to ease regulations or get a bigger share of public money.

But an Indianapolis Star investigation in August found that more than 100 state employees have taken advantage of a loophole that allows state agency heads to grant employees a waiver from the cooling-off period.

“I was personally surprised by the number of internal waivers that have been granted that there was not a public meeting about,” Bosma said Tuesday. “They were put in somebody’s file folder, and there was no public discussion. One of my intentions is to have those waivers go through the ethics commission.”

The Star found that waivers have been issued 102 times since 2005. By comparison, state employees, concerned about potential conflicts with job prospects, have sought formal, binding advisory opinions from the ethics commission 73 times during those years. * * *

Bosma’s comments Tuesday suggest the scope of the reforms likely will include the executive branch as well.

Posted by Marcia Oddi on November 19, 2014 10:13 AM
Posted to Indiana Government

Ind. Decisions - Indy federal court holds Indiana's "slating" statute cannot be enforced

From an ACLU of Indiana news release this morning:

Indianapolis--Political parties in Marion County cannot prevent the free speech activities of candidates they do not back for election, and county officials cannot enforce an unconstitutional law used to impede such speech, a federal judge affirmed today.

Judge Sarah Evans Barker of the U.S. District Court, Southern District of Indiana, in approving an agreed judgment filed by the parties, ruled that Indiana's "slating" statute -- Indiana Code § 3-14-1-2(a)(2) and (3) -- cannot be enforced. The order also provided that the Marion County Election Board cannot convene further hearings concerning the 2012 primary election or the plaintiff in the lawsuit, Zachary Mulholland, and required compensation and fees to be paid to Mulholland and to the American Civil Liberties Union of Indiana, who brought the case on his behalf.

In 2003 the Election Board conceded, in an approved judgment in a separate federal lawsuit, that Indiana's slating statute -- which made it a crime for a candidate in a primary election to publish election materials linking him with other candidates without prior permission and notice to the Board -- violated the First Amendment. Still, during the 2012 primary season, the Board enforced the statute against candidate Mulholland by seizing his campaign literature at polling sites on Election Day and demanding he appear for a hearing.

In March the ACLU of Indiana won an appeal in the U.S. Court of Appeals for the Seventh Circuit on behalf of Mulholland, a candidate for state representative, and the case was remanded to federal court for a final judgment. Seventh Circuit Court Judge David Hamilton wrote in the opinion that the Election Board's pursuit of action against Mulholland "shaves very close to harassment or bad faith prosecution."

"The Judge's decision today is a major victory for our plaintiff and for the First Amendment," said Kenneth J. Falk, ACLU of Indiana legal director, who argued the case with ACLU of Indiana senior staff attorney Gavin M. Rose. "Government agencies cannot enforce laws that have been declared unconstitutional, and the Election Board cannot prevent voters from receiving information about candidates for public office."

"We agree with the Seventh Circuit that this has been an outrageous misuse of power," said Jane Henegar, ACLU of Indiana executive director. "The Election Board has wasted hundreds of thousands of taxpayer dollars on private attorneys' fees in defense of actions that are indefensible. If the Board had admitted the unconstitutional nature of its behavior two years ago, the total cost to the taxpayers would have been a couple of hundred bucks, the cost of the seized pamphlets."

The decision, Zachary Mulholland v. Marion County Election Board, 1:12-CV-01502 SEB-MJD,was issued by the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on Nov. 18, 2014.

Here are a number of earlier ILB posts on the Mullholland lawsuit.

Here is the March 20th 7th Circuit reversal of Judge Barker's earlier ruling.

Posted by Marcia Oddi on November 19, 2014 09:40 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Budget Committee hearings begin this morning

The State Budget Committee hearings begin this morning at 10 AM in Room 404 of the Statehouse. They will be videocast. Here are the schedules for today and tomorrow. They don't resume again until Dec. 3rd.

Posted by Marcia Oddi on November 19, 2014 08:33 AM
Posted to Indiana Government

Tuesday, November 18, 2014

Ind. Decisions - "Incidents involving alleged patient privacy violations can lead to negligence lawsuits that invoke HIPAA as a benchmark"

"Court Upholds $1.4 Million Privacy Verdict: Walgreens Case Invokes HIPAA as a Benchmark", a long story written by Marianne Kolbasuk McGee for GovInfoSecurity, presents the best coverage the ILB has seen of the Indiana Court of Appeals opinion November 14th in the case of Walgreen Co. v. Abigail E. Hinchy. A few quotes:

A second state court ruling in recent weeks calls attention to how incidents involving alleged patient privacy violations can lead to negligence lawsuits that invoke HIPAA as a benchmark.

In the most recent case, the Indiana appellate court has upheld a $1.4 million jury verdict awarded in 2013 to a customer that alleged her privacy was violated by a Walgreens pharmacist who inappropriately reviewed and shared the woman's prescription history with a third party. * * *

HIPAA does not permit a "private cause of action" for individuals to sue for violations of the federal law. But the Walgreens case, like a similar case in Connecticut, gets around that by, instead, alleging negligence under state statutes for failing to meet HIPAA requirements, invoked as the "standard of care" for protecting patient information.

Posted by Marcia Oddi on November 18, 2014 06:24 PM
Posted to Ind. App.Ct. Decisions

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

In Charles Keller v. USA (SD Ind., Magnus-Stinson), a 10-page opinion, Judge Hamilton writes:

Plaintiff Charles D. Keller, a federal prisoner, has sued the federal government to recover damages for an assault by another prisoner that he suffered in the United States Penitentiary in Terre Haute, Indiana. Keller appeals from a grant of summary judgment in the government’s favor, so we must consider the evidence in the light most favorable to him and draw all reasonable inferences in his favor. Parrott v. United States, 536 F.3d 629, 630– 31 (7th Cir. 2008). Accordingly, we must assume the facts are as stated in this opinion, but without vouching for their objective truth. * * *

If as the government suggests in its brief the guards made a “policy” choice that caused them to neglect an area of the yard because they were pursuing other policy objectives within their discretion (such as walking the perimeter or supervising trash collection), then perhaps that would be shielded by the discretionary function exception. But there is no evidence to that effect in the record, and the government’s say‐so in its briefs is not enough to support summary judgment. The government points to no evidence in the record to contradict Keller’s claims that the guards were simply lazy or inattentive. “That type of carelessness would not be covered by the discretionary function exception, as it involves no element of choice or judgment grounded in public policy considerations.” Palay, 349 F.3d at 432.

Accordingly, we conclude that the government did not sustain its burden to prove as a matter of law that the discretionary function exception shielded it from liability for the brutal attack that seriously injured Keller. Summary judgment was improperly granted for the government on that basis, and the district court’s error was not harmless.

We do not reach Keller’s claims that the district court abused its discretion in denying his motion to compel discovery or his motion for appointment of counsel. Keller is free to pursue further discovery on remand, and can of course renew his motion for appointment of counsel as well. We note in closing, however, that the district court may wish to revisit its determination on both matters in light of this opinion. See Parrott, 536 U.S. at 638–39 (finding that district court had abused its discretion in handling injured prisoner’s discovery requests). The district court’s resolution of the discovery disputes in this case resulted in a record so limited that it could not support summary judgment for the government.

A better‐developed record would have allowed the district court and this court to assess better the merits of the government’s motion for summary judgment. We REVERSE the district court’s grant of summary judgment and REMAND the case for further proceedings consistent with this opinion.

Posted by Marcia Oddi on November 18, 2014 04:51 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - An update to "A look at the Indiana Tax Court"

On Sept. 2, 2014 the ILB posted a long entry headed "A look at the Indiana Tax Court." The post came about because the ILB had received a number of notes from readers asking about the long delays it took to get a decision from the Indiana Tax Court, and the ILB's own observations of the limited number of opinions issued by that Court.

The Sept. 2nd post, with several charts and graphs, showed, inter alia, that the average time from transmittal to an opinion in 2014 was 1,067 days. Based on the charts, the post concluded:

[W]hile the number of new cases filed has gone down starting in 2011, the backlog has soared during the same period. Also notable is that, beginning in 2011, when there are effectively two tax court judges, the number of decisions on merits issued each year has been less than that of previous years, when there was only one tax court judge.
Two and one-half months later, what has changed?

For one thing, the Tax Court judge, Judge Wentworth, who was up for retention at the general election on November 4th, was retained by the voters for a 10-year term by a vote of 713,998 to 317,849. This "yes" vote was second highest of the four appellate judges up for retention. Only Chief Justice Rush scored higher, with a vote of 720,948 to 324,484.

Secondly, in the two and one-half months since September 2nd, the Tax Court has issued only two additional rulings, one dated Sept. 4 was a four-page ruling on a petition for rehearing. The other, dated Sept. 18, was the denial of a Motion for Trial Rule 37 sanctions.

As for hearings, the Sept. 2nd ILB post listed the 19 hearings that had been set or scheduled in 2014. Looking forward, the post showed that two Tax Court hearings had been scheduled for September, one for October, and none for the months of November or December.

A look at the calendars today shows the Oct. 9th hearing was cancelled and rescheduled for Dec. 11th in the Statehouse. Two hearings were added in October, for the 22nd and the 29th, both in the Statehouse. One two-hour hearing has been set for November 6th, in Madison, Indiana. Finally, a one-hour hearing has been scheduled for December 5th in Evansville. That gives a total of 23 Tax Court hearings during 2014, 3 of them outside Indianapolis.

The Tax Court backlog at the end of 2013 was 193 cases. Based on the limited number of hearings and final decisions recorded in 2014, it seems unlikely that the backlog has appreciably decreased this year, particularly as new cases were filed during that same period.

The Tax Court's 2013-2015 budget request was a valuable piece of information the ILB relied upon in preparing its Sept. 2 post.*

The 2015-2017 Budget Committee Hearings Schedule for tomorrow, November 19, lists the Indiana Tax Court presentation from 11:00 a.m. to 11:30 a.m.
*Also useful was a story in the March 25, 2013 issue of Indiana Legislative Insight, cited in this ILB post, about the backlog at the Tax Court, along with this follow-up post from March 29, 2013.)

Posted by Marcia Oddi on November 18, 2014 01:40 PM
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In In the Matter of the Termination of the Parent-Child Relationship of E.P. III and E.P. Jr. (Father) v. Indiana Dept. of Child Services, a 13-page opinion, Chief Judge Vaidik writes:

E.P. Jr. (“Father”) pled guilty to Class B felony child molesting and Class B felony neglect of a dependent in 2013. S.H., the victim, is the half-sibling of E.P. III (“E.P.”), Father’s son. Father was sentenced to twenty years in the Department of Correction; he is scheduled to be released in 2029. Shortly after pleading guilty, Father’s parental rights to E.P. were terminated. Father now appeals, arguing that the termination order should be reversed because the same judge, the Honorable James D. Humphrey, presided over his termination and criminal cases in violation of Indiana Code section 31-32-8-2. He also contends that there is insufficient evidence to support the termination order.

We conclude that Father’s claim regarding Judge Humphrey implicates procedural error, and because he failed to object at any time to Judge Humphrey presiding over both the termination and criminal matters, he has waived any claim of error in that context. We also conclude that there is sufficient evidence to support the trial court’s order terminating Father’s parental rights. We therefore affirm.

NFP civil opinions today (2):

Michelle R. Ruggio v. Review Board of the Indiana Department of Workforce Development, et. al. (NFP)

K.M. v. D.S. (NFP)

NFP criminal opinions today (6):

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

Jack E. Primmer v. State of Indiana (NFP)

Charles Tinsley v. State of Indiana (NFP)

Montez Belmar v. State of Indiana (NFP)

Kenneth W. Gibbs v. State of Indiana (NFP)

Benjamin S. McMillen v. State of Indiana (NFP)

Posted by Marcia Oddi on November 18, 2014 10:50 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Illinois ranks 49th for how court system serves disadvantaged" What about Indiana?

A story today from Dave Collins of the AP, here published in the Benton Illinois Evening News, begins:

Illinois' court system had the third-worst score in the nation among state judiciaries in serving poor, disabled and other disadvantaged members of the public, according to new rankings.

Illinois' "Justice Index" score of 34.5 out of 100, determined by the nonprofit National Center for Access to Justice, is based on how states serve people with disabilities and limited English proficiency, how much free legal help is available and how states help increasing numbers of people representing themselves in court, among other issues.

Connecticut led all states with a score of 73.4 and was followed by Hawaii, Minnesota, New York and Delaware, respectively. Local courts in Washington, D.C., had the highest overall score at 80.9.

At the bottom was Oklahoma at 23.7, followed by Kentucky, Illinois, South Dakota and Indiana.

ILB: That puts Indiana at 46th worse.

More from the story:

Connecticut, Hawaii, Minnesota, Colorado, Tennessee and Maine had perfect 100 scores in serving people with disabilities, while Indiana, Georgia, Wyoming, Missouri and Idaho had the lowest scores.

Those rankings were based on issues such as whether interpretation services are offered free to the deaf and hearing-impaired and whether there are laws or rules allowing service animals in courthouses.

The index also reviewed how many civil legal aid lawyers were available to provide free legal help. Washington, D.C., had nearly nine civil legal aid lawyers per 10,000 people in poverty, the highest rate in the country. Texas had the lowest rate, 0.43 legal aid lawyers per 10,000 people in poverty.

See also this ILB post from Nov. 14th.

Posted by Marcia Oddi on November 18, 2014 10:16 AM
Posted to Indiana Courts

Ind. Courts - "Jeffersonville City Court in jeopardy of closing", City Judge blames State Police

Alex Schuman of WHAS11ABC reports:

JEFFERSONVILLE, In - Clark County may soon be taking on more cases.

The Jeffersonville City Council voted to shut down their city court Monday. Their decision still requires a second vote, but will mean Jeffersonville can no longer help the county with the case load.

Their city court handles any misdemeanor, or violation that does not result in jail time that occurs in Jeffersonville's border.

"I'm a part-time judge. I have a private law practice. I have the ability to earn an income," Judge Ken Pierce, the only judge for Jeffersonville's city court said. Pierce hears cases three mornings a week, and came to the meeting to defend the need for a city court in Jeffersonville.

Pierce argues the loss of a judge who can issue warrants to local police, the money the court generates for drug prevention and the local library, and the back-log of cases at Clark County are prime examples of how having the court benefits the city. * * *

Councilman Matt Owen pushed a vote on the ordinance to discontinue the court because of its shrinking case load and increasing cost.

Current estimations show the city court could cost Jeffersonville more than 400,000 dollars in 2014.

The one, strange piece of this story, is that no one can officially explain why Jeffersonville's case load has experienced such a dramatic drop from 2012 to 2014.

"The other thing that I've been trying to put my hands on, and I can't - for some reason - is why this case load is going down," Julius said. "Your case load. Everybody else's case numbers are going up. Everybody. Your case load is going down."

Judge Pierce believes certain Indiana State Police officers are stationing themselves in Jeffersonville, and purposely failing to file their cases with his court. * * *

Judge Pierce also challenges the numbers the city council is basing their decision, and thinks he could get the number down from more than 400,000 to around 200,000.

"We have to rely on these numbers. We have to - if there's a mistake - you bring it to us - we will definitely research it," Julius to Pierce during the meeting said.

Pierce's term lasts for another year.

"I'm arguing for the better of the city."

The city council must vote to shut down the city court a second time for the decision to be official.

Posted by Marcia Oddi on November 18, 2014 10:04 AM
Posted to Indiana Courts

Monday, November 17, 2014

Ind. Gov't. - Two significant decisions from the Public Access Counselor

14-FC-247: Alleged Violation(s) of the Access to Public Records Act by the Marion County Board of Voter Registration - Blogger Gary Welsh writes about this ruling here.

14-FC-246: Alleged Violation of the Access to Public Records Act by the City of Hammond - Here the City of Hammond denied a public records request for "the delineated dollar amounts of any settlement, attorneys’ fees and other associated legal costs for three lawsuits in which the City was named a defendant." More from the ruling:

The City responded to your formal request by stating the same and considered the request improper. It interprets your request to seek documents which do not exist, specifically a summary of the litigation and associated costs. It maintains the City does not have any records to satisfy your request. * * *

After reviewing your original request, it appears as if what you are asking for is relatively straight-forward. It may be true that the information is not in one particular document or is summarized succinctly, but you identify the type of public records sought with an element of specificity. I have often held that a requester does not need to identify a record with pinpoint accuracy, but must give the agency an idea of what it should be looking for.

This is consistent with the Court of Appeal’s decision in Jent v. Fort Wayne Police Dep't, 973 N.E.2d 30 (2012):

Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.
While this interpretation places the subjective discretion on the agency to determine whether they can search for and retrieve the records, it is my subjective opinion that your request gives enough information for search parameters. In terms of the litigation documentation, you identify the party names and cause number. If the case was indeed settled, there will be a settlement agreement or decree. If there are attorneys’ fees and associated costs, there will be invoices from the law firm or expenditure reports. The City is under no obligation to create a summary of this information, but rather the documentation itself showing these expenses. [ILB emphasis]

The City has not contended that it has no capacity or ability to search for these types of records. I do not agree with them that you strictly asked for records which do not yet exist.

CONCLUSION. For the foregoing reasons, it is the Opinion of the Indiana Public Access Counselor that the City of Hammond has violated the Access to Public Records Act.

Posted by Marcia Oddi on November 17, 2014 05:01 PM
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending November 14, 2014

Apparently there were no transfer dispositions last week, as no transfer list was posted this morning by the Supreme Court.

[Updated at 2:50 PM]

Here now is the Clerk's transfer list for the week ending Friday, November 14, 2014. It is one page (and 1 case) long.

One transfer was granted last week, and it was with opinion, Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education. See the ILB here, from Nov. 13th.

Posted by Marcia Oddi on November 17, 2014 01:14 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In In the Matter of the Walter Penner Trust Under Agreement Created by the Grantor, Walter Penner on April 13, 2010, Stanley Penner v. Ronald Penner, a 15-page opinion, Judge May writes:

The parties to this case, along with their brother Frank Penner, are beneficiaries of the Walter Penner Living Trust (Trust). According to the terms of the Trust, Ronald Penner became the Trustee of the Trust on Walter’s death. Stanley Penner brought an action against Ronald in his capacity as Trustee, and the trial court found against Stanley on all counts. Stanley now appeals the denial of his motion to correct error and the trial court’s order that he pay attorney fees to the Trust. He presents multiple issues for our review * * *

Conclusion. The trial court did not err in its findings and conclusions of law regarding Trustee’s management of the Trust. Further, the trial court did not abuse its discretion when it awarded the Trust attorney’s fees and denied Stanley’s request for attorney’s fees. Finally, we deny Stanley’s request for appellate attorney’s fees and sua sponte award the Trust attorney’s fees, to be determined and ordered by the trial court on remand. Affirmed and remanded.

In E.W., O.W., v. J.W. , a 17-page opinion, Judge Robb writes:
The appellants in this matter, E.W. (“Father”) and O.W. (“Grandmother”) (collectively, “Appellants”), appeal from the trial court’s orders in favor of J.W. (“Mother”) in three consolidated causes, two of which concern Father and Mother’s child, R.W. The trial court issued separate orders denying Grandmother’s petition to adopt R.W., denying Father’s petition to terminate Mother’s parenting time, and denying Father’s petition for a permanent protection order against Mother. Appellants raise three issues for our review: (1) whether the trial court’s denial of Grandmother’s petition for adoption is clearly erroneous; (2) whether the trial court abused its discretion by denying Father’s request to terminate Mother’s parenting time; and (3) whether the trial court erred by denying Father’s petition for a protection order against Mother. We conclude the trial court’s decisions regarding the petition for adoption and request to terminate parenting time were not erroneous, and we affirm those decisions in all respects. However, we conclude the trial court’s order relating to Father’s petition for a protection order did not comply with Indiana Trial Rule 52(A), and we remand for further proceedings on that issue. Accordingly, we affirm in part and remand.
In Church of the Brethren, South/Central Indiana District v. Roann Church of the Brethren, Inc., Roann Break-Away Group and the Roann Church, Inc., a 17-page opinion, Judge Najam writes:
Church of the Brethren, South/Central Indiana District (“the Denomination”) appeals the trial court’s decision, following a bench trial, in favor of Roann Church of the Brethren, Inc. and The Roann Church, Inc. (“the Congregation”) on the Denomination’s complaint.1 The Denomination presents one issue for our review, namely, whether the trial court erred when it held that the Congregation did not place its property into an irrevocable trust, express or implied, for the benefit of the Denomination. We affirm. * * *

To reiterate, the court’s reasoning finds support in the language of the deeds, which do not contain trust language; in testimony, which labeled the Manual as nonbinding on individual congregations; and in the language of the 2002 Constitution, which did not create a fiduciary relationship and which, in any event, was nonbinding and revocable by the Congregation. Therefore, the Denomination has not met its burden; it has not shown that the trial court’s judgment is clearly erroneous. We affirm the trial court’s judgment in all respects.

In Gregory Hudson v. State of Indiana, a 10-page opinion, Chief Judge Vaidik writes:
Gregory Hudson struck and killed Kathleen Clark with his pickup truck. Hudson did not stop at the scene of the accident, nor did he contact authorities. After police received an anonymous tip that Hudson was involved in the accident, they confronted him at his workplace. Although Hudson initially denied it, he ultimately admitted to accidentally striking and killing Kathleen. At his bench trial for Class C felony failure to stop after an accident resulting in death, defense counsel argued that Hudson could not be convicted because he did not know he had struck a person; put differently, he did not know he had been in an accident causing injury. Citing expert and eyewitness testimony as well as other evidence, the trial court rejected this claim and found Hudson guilty. The court sentenced Hudson to five years—two years executed on home detention through community corrections and three years suspended, two of them on probation.

Hudson challenges his conviction on appeal. Although he frames his argument as one of statutory interpretation, the issue before us is actually one of sufficiency, and we conclude that the evidence is sufficient to support Hudson’s conviction. We therefore affirm the trial court.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of R.A., R.A. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

Ben Robinson v. State of Indiana (NFP)

Posted by Marcia Oddi on November 17, 2014 12:54 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Campuses fighting sexual assaults face murky question of consent"

Maureen Hayden | CNHI Statehouse Bureau, reported Friday in the Anderson Herald Bulletin:

INDIANAPOLIS — Colleges looking for ways to reduce sexual assault on campus may turn to lawmakers for help defining the word “consent.”

Rape allegations are difficult to investigate when there is misunderstanding about when “yes” means “yes,” representatives of several universities told members of the state Higher Education Commission on Wednesday.

“Many students are confused about what consent means, and how it’s obtained, especially when alcohol is involved,” said Rachel Green, an Indiana University-Bloomington senior who help leads a student initiative to reduce assaults on campus called Culture of Care. She was on a panel invited by the commission to discuss what the state can do to reduce sexual violence.

Prompting the commission’s interest are increasing numbers of sexual assaults reported on the state’s campuses. That includes IU-Bloomington, which has been under review by the U.S. Department of Education for possible violations of federal law in how it handles sexual violence.

At Wednesday’s meeting, state Rep. Christina Hale, D-Indianapolis, said a first step is recognizing the seriousness of sexual assault and how much it’s underreported, especially among students.

A study last year by the Centers for Disease Control ranked Indiana second in the nation for sexual assaults against young women. It said about 50 percent of assaults are unreported.

“We have a terrible problem,” said Hale, quoting the CDC numbers. “Yes, wholesome little Indiana is second worst in the nation.”

Earlier this year, Hale succeeded in getting the General Assembly to fund a study of sexual assault of minors. In the next legislative session, which begins in January, she plans to push for language that better defines consent when it comes to sex.

“Indiana lacks a definition of ‘consent’ ” she told the commission.

Butler University general counsel Claire Aigotti said “clarity around consent is essential” for colleges dealing with incidents involving students whose judgments are impaired by alcohol, when the accused and accuser offer different accounts of what happened.

“These are very difficult issues to navigate,” Aigotti said.

In September, California became the first state to enact a “yes means yes” standard. Its law requires colleges and universities that receive state funds to adopt sexual assault policies that include affirmative consent as the key element in determining whether the activity was consensual. Other states – including New Hampshire and New Jersey – are considering similar measures.

Hale said she didn’t know if Indiana is ready to take that step. She said results of the state’s sexual assault study, due early next year, will guide discussions.

“It’s a problem that couldn’t be more urgent or important,” she said. “I have colleagues on both sides of the aisle ready to look at all kinds of initiatives that might make a dent in it.”

Posted by Marcia Oddi on November 17, 2014 10:14 AM
Posted to Indiana Government

Ind. Courts - Growth of veterans courts in Indiana

Judge Maria Granger, Floyd County Superior Court 3, presides over the Veterans Court of Southern Indiana, and wrote this story on veterans courts for the Louisville Courier-Journal. A quote:

In 2010, Veterans Courts did not exist anywhere in Indiana or Kentucky. Floyd County certified the first Veterans Court in Indiana to allow access to court recovery programs for troubled vets. The program saves taxpayers thousands of dollars in incarceration costs. The program places no financial burden on taxpayers. Veterans Court is an alternative and tough approach to justice based on teamwork, honesty, accountability, reducing crime and restoring lives as guaranteed by our Constitution. The Veterans Court movement began in Indiana in 2011, fueled by the patriotic spirit of Hoosiers. Now in 2014, there are 14 of these courts serving Indiana communities and several others are in the pre-planning stages.

Posted by Marcia Oddi on November 17, 2014 10:02 AM
Posted to Indiana Courts

Law - More on "Death Penalty Act of 1996 created procedural hurdles, causing many inmates to lose access to final appeal"

Following its front-page story yesterday, the Washington Post has a new front-page story today, also by Ken Armstrong of the Marshall Project, headed "When lawyers stumble, only their clients fall: In at least 80 capital cases in which attorneys have missed the deadline, it is almost always the prisoner alone who suffers the consequences." A sample from the lengthy story:

[A]n investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.

Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found. And that attorney was given a simple censure, one of the profession’s lowest forms of punishment.

The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals. When [Mary Catherine] Bonner, the Florida attorney, argued before the Supreme Court, the justices said nothing of her being a repeat offender, if they even knew. [In one, she was late by 210 days; in the other, 278 days. In a third federal case earlier that year, her petition for relief under habeas corpus was 312 days late.]

The absence of any systematic monitoring or punishment for mistakes on which their clients’ lives might depend underscores the uneven quality of publicly funded legal aid to death-row prisoners who turn to the federal courts.

Posted by Marcia Oddi on November 17, 2014 09:20 AM
Posted to General Law Related

Ind. Decisions - "Supreme Court clarifies how to measure seized meth operations"

That is the headline of Dan Carden's Nov. 14th story in the NWI Times, reporting on the Supreme Court's Nov. 13th opinion in Joseph K. Buelna v. State of Indiana. From the story:

The Indiana Supreme Court has ruled stiffer penalties for methamphetamine makers must be based on the weight of the final product and not a mid-manufacturing mixture that contains some meth.

In a 5-0 decision, the state's high court said police who discover a working meth lab must determine how much meth could have been created using present ingredients if prosecutors intend to seek a sentence enhancement based on the amount of meth seized.

"Simply presenting massive quantities of intermediate mixtures or precursors is insufficient to establish the weight enhancement absent evidence of final yield," said Chief Justice Loretta Rush. "Because methamphetamine manufacture is a complicated process that depends on a variety of independent factors, unfinished mixtures and precursors alone tell a jury nothing about how much final product can be produced."

Police need not become meth makers themselves and complete the manufacturing process to determine final yield.

Rush said an expert or skilled witness can testify as to how much meth could be made given the manufacturing conditions, ingredients and skills of the accused.

Under Indiana law, a person manufacturing less than 1 gram of meth commits a Level 5 felony (advisory prison term: three years); more than 1 gram but less than 5 grams a Level 4 felony (six years); more than 5 grams but less than 10 grams a Level 3 felony (nine years); and more than 10 grams a Level 2 felony (17.5 years).

Rush said lawmakers would not have devised that classification scheme if they intended an intermediate meth mixture to count as the final product, since it then would be almost impossible for any meth making operation to qualify as a low-level crime.

"We do not believe the General Assembly intended to write a statute that made virtually every instance of methamphetamine manufacture a (Level 2) felony," Rush said.

Posted by Marcia Oddi on November 17, 2014 08:45 AM
Posted to Ind. Sup.Ct. Decisions

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

From Sunday, November 16, 2014:

From Saturday, November 15, 2014:

From Friday afternoon, November 14, 2014:

Posted by Marcia Oddi on November 17, 2014 08:43 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/17/14):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 11/24/14):

Monday, Nov. 24

  • 9:00 AM - Billy Young v. State of Indiana (49A02-1310-CR-868) Young and others were fighting with the victim. Young, who had a gun, handed it to one of the other men involved in the fight, but neither of them shot the gun. A third, unidentified man, then shot and killed the victim. Young was charged with murder and conspiracy to commit murder. After a bench trial, the Marion Superior Court dismissed the murder and conspiracy to commit murder charges but convicted Young of attempted aggravated battery. See Ind. Code §§ 35-42-2-1.5 (aggravated battery); 35-41-5-1 (attempt). The Court of Appeals reversed in Young v. State, 11 NE3d 964 (Ind. Ct. App. 2014), trans. pending. The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: In a June 12, 2014 opinion, the panel wrote: "Concluding the charging information did not give Young sufficient notice of the crime of which he was convicted, we reverse."

  • 9:45 AM - Charles Moore v. State of Indiana (71S00-1405-LW-361) Following a jury trial in the St. Joseph Superior Court, Charles Moore was convicted of robbery, two counts of murder, and two counts of felony murder (robbery). In the penalty phase, the jury recommended a sentence of life without the possibility of parole. This appeal comes directly to the Supreme Court because an LWOP sentence was imposed. See Ind. Appellate Rule 4(A)(1)(a). Moore argues the evidence in insufficient to support the convictions.

  • 10:30 AM - Lora Hoagland v. Franklin Township Community School Corp. (49S02-1410-PL-643) During the 2011-2012 school year, a school corporation discontinued its own bus service and arranged with a vendor to offer bus transportation for students for a fee. Parents then sued the school corporation, alleging among other things that the school’s actions violated Article 8, Section 1 of the Indiana Constitution. The trial court awarded summary judgment to the school corporation. The Court of Appeals affirmed in part, reversed in part, and remanded. Hoagland v. Franklin Twp. Cmty. Sch. Corp., 10 N.E.3d 1034 (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 the school bus fees case, the June 10, 2014 COA opinion that looked at the question: "[D]id Franklin Township act unconstitutionally with respect to student transportation? Applying our Supreme Court’s reasoning in Nagy v. Evansville-Vanderburgh School Corp., 844 N.E.2d 481 (Ind. 2006), we conclude that it did. We affirm in part and reverse in part."

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 11/17/14):

Monday, November 17

  • 1:30 PM - Bookwalter v. State (79A04-1402-CR-69) Bookwalter was convicted of Dealing in a Narcotic Drug, Possession of a Narcotic Drug,Possession of a Syringe, and Possession of Paraphernalia. He appeals, challenging the sufficiency of the evidence for Possession of a Syringe and Dealing in a Narcotic Drug, and further contends that his conviction for Dealing in a Narcotic Drug and Possession of a Narcotic Drug are barred on double jeopardy grounds. The Scheduled Panel Members are: Judges Najam, Bailey and Pyle. [Where: Court of Appeals Courtroom (WEBCAST)]

Friday, November 21

  • 11:15 AM - Schmidt v. Indiana Insurance Co., et al (22A01-1403-PL-135) Christopher Schmidt purchased an insurance policy from Indiana Insurance through insurance agent Bart Stith to protect a vacant residence he owned in New Albany, IN. Schmidt was in the process of cleaning up and renovating the residence when it was destroyed by fire. Indiana Insurance denied Schmidt's insurance claim based on alleged inaccuracies on his insurance application, and Schmidt sued Indiana Insurance as well as Stith and Stith's insurance group. The trial court granted summary judgment in favor of Indiana Insurance, et. al., and Schmidt appeals, claiming there exists a genuine issue of material fact regarding whether the Appellees were negligent and forged the application for insurance. The Scheduled Panel Members are: Judges Najam, May and Pyle. [Where: French Lick Springs Hotel, French Lick, IN]
Next week's oral arguments before the Court of Appeals (week of 11/24/14):

Tuesday, November 25

  • 1:30 PM - Gilda Orange, et al v. The Honorable Sonya A. Morris (45A03-1310-PL-414) In 2012, Appellants/Defendants Gilda Orange, et al, in their capacities as members of the Common Council of the City of East Chicago, IN (collectively, "the Council"), reduced by $82,000 the 2013 budget of the City Court of the City of East Chicago, IN ("the City Court"), which is presided over by Appellee/Plaintiff the Honorable Sonya A. Morris, Judge. In October 2012, Judge Morris filed a verified complaint in mandamus, seeking an order that the Council fully fund the City Court's requested budget for 2013 and that the Council also pay the City Court's reasonable expenses in prosecuting the action. The Council moved to dismiss Judge Morris's complaint on the ground that it did not go through the Indiana Supreme Court's judicial assignment process as outlined in Indiana Trial Rule 60.5. Special Judge the Honorable George C. Paras was appointed to hear the complaint, denied the Council's motion to dismiss, and held trial. Following trial, the trial court ordered the Council to appropriate $65,000 to fund the City Court ("the Mandate") and for each party to pay its own expenses and attorney's fees. As restated, the Council contends that (1) Judge Morris failed to meet her burden to establish the mandated funds were reasonably necessary to operate the City Court; (2) Judge Morris should have been required to use the judicial appointment process of Trial Rule 60.5; (3) existing probation funds could have cushioned the effect of budgetary cuts; and (4) the Council's appeal is not moot. The City Court counters that (1) the Mandate was necessary to preserve the judicial independence of the City Court; (2) the mandated funds are reasonably necessary to fund court operations; (3) the Council failed to establish that the City Court's budget is excessive or that East Chicago could not fund the budget; and (4) the City Court is entitled to attorney's fees and expenses. The Scheduled Panel Members are: NOT POSTED [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [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 November 17, 2014 08:38 AM
Posted to Upcoming Oral Arguments

Sunday, November 16, 2014

Ind. Gov't. - IndyStar reports on appalling conditions at Animal Care & Control

"Years of Neglect" is the headline to this long, front-page story today by Bruce Eason. Some quotes [ILB emphasis]:

For more than a decade, Indiana’s largest animal shelter has failed to provide for the most basic needs of the 17,000 animals entrusted to its care each year.

From time to time, well-meaning people come together and try to fix the problems. Task forces are assembled. Studies are conducted. Solutions are found. But the city of Indianapolis has never implemented them.

A 2003 task force called for better medical care, more staffing and clearer euthanasia procedures at Animal Care and Control. A report commissioned this year by the Department of Public Safety found that little has changed.

The lone veterinarian position has been vacant since March, and because of a shortage of staff, decisions to kill a wounded animal are routinely made without even a basic medical workup. To meet bare minimum standards, the study found, the kennel staff needs to double.

Conditions have become so dire that the report’s authors suggest the shelter may even be in violation of the city’s own animal cruelty ordinances. * * *

Administration officials and some City-County Council members blame the problems on budget constraints in a city that has seen revenue plummet because of property tax caps and the national recession.

But animal welfare groups and others on the council say that explanation obscures the true culprit. A city that spends more than $350 million a year on public safety, they say, has never made animal care a priority.

“We’ve known this since at least 2000,” said Sue Hobbs, chair of an advisory board that oversees Animal Care and Control. “There have been committees and studies and panels, and nothing ever changes. It just doesn’t. It’s seriously like Groundhog’s Day.” * * *

[M]ost damning in the recent report is the suggestion that conditions at the shelter may violate the city’s own animal cruelty ordinances.

City code requires food “in adequate amounts to maintain good health.” The city doesn’t budget for food at all, instead relying on a hodgepodge of donations that veterinarians say is detrimental to the animals’ well-being.

Additionally, “there’s no budget for emergency care and this, the team members believe, is contrary to local laws on humane care,” the report said. “With lack of budgeting for emergency medical care, IACC staff is forced to make euthanasia decisions without adequate diagnostic information, such as X-ray and bloodwork results.”

The law requires animal owners to provide proper medical care and to segregate animals when they are sick to prevent the spread of disease. But the study, conducted this summer, found that poor sanitation and the lack of a quarantine area presented a high risk for disease. In October, a deadly viral outbreak killed two dozen cats before animal rescue groups took the remaining cats away to prevent its spread.

“The city is charged to investigate cruelty,” said John Aleshire, CEO of the Humane Society of Indianapolis. “How ironic it is that we would bring an animal back to a shelter that is not properly staffed, that does not have proper medical care and (where) the staff has to scrounge around for food.” * * *

“There have been all these points where it has kind of come to a crisis,” said Republican Councilwoman Christine Scales. “There have been various times where we’ve gotten a lot of publicity about the problems, and then there’s a hurry-scurry by the administration to do something, and then it kind of dies down again.”

She suspects animal care is simply easy to ignore.

“They (the animals) are voiceless, they don’t have someone politically well-connected to advocate on their behalf,” Scales said. “In a sense, it’s almost like the administration knows: They’ve heard it before, (animal welfare groups) get upset, they make their passionate pleas, and then they go away. They go back to working for the animals.”

From a letter to the editor in today's Star, written by Susan L. Gerhart:
Let’s call it what it is — an appalling, terribly run, severely underfunded attempt to handle stray animals in Indianapolis. Animal Care and Control periodically surfaces in a news story when some near catastrophe inundates the department. In between crises, the shelter slogs along, mishandling unfortunate animals on a routine basis. * * *

It is my hope that others will feel the outrage that I do and contact city officials, requesting that they stop doing studies and reports, and start funding the shelter. Surely, if we can spend millions for cricket fields, and give millions of dollars to billionaires to fund their sports teams, we can raise enough money to adequately feed, house and humanely care for the stray animals our irresponsible Indianapolis residents render homeless. To do less only lessens our humanity.

Posted by Marcia Oddi on November 16, 2014 06:24 PM
Posted to Indiana Government

Law - "DC police plan for future seizure proceeds years in advance in city budget documents"

The Washington Post continues its series on civil asset forfeitures with this story today by Robert O'Harrow Jr. and Steven Rich.

Of particular from the series is this Sept. 8th story headed "They fought the law. Who won? Many drivers faced a long ordeal in court to try to get their money back from police."

The ILB has a long list of earlier posts on civil asset forfeiture.

Posted by Marcia Oddi on November 16, 2014 03:16 PM
Posted to General Law Related

Law - Antiterrorism and Effective Death Penalty Act of 1996 created procedural hurdles, causing many inmates to lose access to final appeal

From the Washington Post today, a long, front-page investigative story by Ken Armstrong.

The subhead: "How bad lawyering and an unforgiving law cost condemned men their last appeal." A sample:

An investigation by The Marshall Project shows that since President Bill Clinton signed the one-year statute of limitations into law — enacting a tough-on-crime provision that emerged in the Republicans’ Contract with America — the deadline has been missed at least 80 times in capital cases. Sixteen of those inmates have since been executed — the most recent was on Thursday, when Chadwick Banks was put to death in Florida.​

By missing the filing deadline, those inmates have usually lost access to habeas corpus, arguably the most critical safeguard in the United States’ system of capital punishment. “The Great Writ,” as it is often called (in Latin it means “you have the body”), habeas corpus allows prisoners to argue in federal court that the conviction or sentence they received in a state court violates federal law. * * *

Some of the lawyers’ mistakes can be traced to their misunderstandings of federal habeas law and the notoriously complex procedures that have grown up around it. Just as often, though, the errors have exposed the lack of care and resources that have long plagued the patchwork system by which indigent death-row prisoners are provided with legal help.

The right of condemned inmates to habeas review “should not depend upon whether their court-appointed counsel is competent enough to comply with [the] statute of limitations,” one federal appeals judge, Beverly B. Martin, wrote in an opinion earlier this year. She added that allowing some inmates into the court system while turning others away because of how their lawyers missed filing deadlines was making the federal appeals process “simply arbitrary,” she added.

Posted by Marcia Oddi on November 16, 2014 03:03 PM
Posted to General Law Related

Saturday, November 15, 2014

Ind. Law - "The Schmuhls are 2009 graduates of Valparaiso University Law School"

That is the last line of this story from late Friday in Slate, that is headed "Husband and Wife Lawyers Accused in Home Invasion, Stabbing of Wife’s Former Colleague." The story begins:

Andrew and Alecia Schmuhl, both lawyers, have been charged in a vicious attack carried out against one of Alecia Schmuhl's former colleagues and his wife in the upscale Washington, D.C., suburb of McLean, Virginia. According to the Washington Post, 30-year-old Alecia Schmuhl was recently fired from an Arlington, Virginia, law firm where victim Leo Fisher works as a partner. She and her 31-year-old husband, Andrew, allegedly drove to Fisher's home last Sunday night, where Andrew Schmuhl is said to have entered the residence and allegedly tased, handcuffed, stabbed, and shot at Fisher and Fisher's wife, Susan Duncan, while Alecia Schmuhl waited outside. Fisher and Duncan remain hospitalized.
The Washington Post has a later, longer story, by Justin Jouvenal. Some quotes:
The home invasion began, a Fairfax County prosecutor said Friday, with a man posing as a police officer knocking on the front door of a tony McLean home belonging to the managing partner of a prominent law firm.

When 61-year-old Leo Fisher answered Sunday evening, the man with a badge and gun Tasered him. Fisher crumpled into the fetal position, and the man slapped a pair of flexible handcuffs around his victim’s wrists.

Then Fisher’s wife, Susan Duncan, came to the door, alarmed by the commotion. She was handcuffed, too, and shoved in a bathroom.

But the prosecutor said that this was no ordinary burglary — it was something more sordid: revenge. And that the alleged perpetrators were a pair of lawyers, one of whom was angry over her recent dismissal from Fisher’s Arlington County firm, Bean, Kinney & Korman. * * *

Some who know the Schmuhls had a hard time squaring their polished résumés with the crimes of which they are accused.

Alecia Schmuhl speaks three languages and served on the board of the Arlington-Alexandria Coalition for the Homeless. Andrew Schmuhl was a former judge advocate in the Army. Neither had a criminal record in Fairfax County. They both graduated from Valparaiso University Law School in 2009, the school said. * * *

The incident shocked Fisher’s upscale neighborhood, which is largely quiet and free of crime. The stately homes are set back from the street on sizeable lots. Neighbors said this week that Fisher and his wife were good neighbors.

Posted by Marcia Oddi on November 15, 2014 09:19 AM
Posted to Indiana Law

Friday, November 14, 2014

Essential ILB posts: The ILB has selected its "essential posts" from the past two weeks

Continuing the ILB's new occasional Friday afternoon feature, which began with this post on Sept. 26, here is a checklist of significant ILB posts from the past two weeks you may have missed, or forgotten.

  • Sat. Nov. 1 - "Families of more than 1,800 special-needs children to be mailed the financial help they’ve been promised"

  • Tue. Nov. 4 - SD Ind. proposed revisions to local rules re filing under seal

  • Wed. Nov. 5 - Prof. Schumm: A Road More Traveled: More than One-Third of Recent Indiana Supreme Court Opinions Issued Without Hearing Oral Argument

  • Wed. Nov. 5 - Some notes on Indiana court-related election results

  • Thurs. Nov. 6 - Supreme Court decides one today, the right-to-work law challenge

  • Thurs. Nov. 6 - "Federal Appeals Court Upholds Four States’ Same-Sex Marriage Bans"

  • Fri. Nov. 7 - More on: Judges shall receive "a compensation which shall not be diminished during their continuance in office."

  • Fri. Nov. 7 - Ind. Decisions - Agreement resolves investigation of former Center Township Small Claims Court judge

  • Mon. Nov. 10 - "Police Use Department Wish List When Deciding Which Assets to Seize"

  • Mon. Nov. 10 - Supreme Court issues an order encouraging mediation in the IBM case

  • Mon. Nov. 10 - Ind. Decisions - First same-sex dissolution in Indiana granted

  • Tues. Nov. 11 - Indiana's Open Door Law in the news

  • Tue. Nov. 11 - "Highway seizure in Iowa fuels debate about asset-forfeiture laws"

  • Wed. Nov. 12 - "Indiana high court weighs taking up St. Joe County adoption case"

  • Thurs. Nov. 13 - Several interesting takes on the latest challenge to the Affordable Care Act

  • Thurs. Nov. 13 - Supreme Court decides two today; important administrative law rulings

  • Thurs. Nov. 13 - More on: Supreme Court decides two today; important administrative law rulings

  • Fri. Nov. 14 - "Woman ticketed for going topless at Chicago event files civil rights suit against city" [Updated]

Posted by Marcia Oddi on November 14, 2014 01:04 PM
Posted to Essential ILB Posts

Ind. Courts - "Americans with Disabilities Act and the Code of Judicial Conduct"

That is the title to a new article in CourtTimes, written by Brenda Rodeheffer*. Here is a sample:

Judges should evaluate every aspect of the accommodation needs of counsel, parties, witnesses and jurors. If a juror can get into the courtroom, but cannot access the private jury restroom, an appropriate solution will have to be found. If a witness can get in the courtroom, but can’t sit in the witness seat to give testimony, accommodation must be made. A judge must educate and work with the local council or financing authority in order to accomplish the necessary changes.

There is no “grandfather” clause in the ADA, and our beautiful old courthouses were made without today’s emphasis on disability accommodations. When a courthouse is eligible for listing on the National Register of Historic places, there will have to be balance between not destroying the historical significance of the property and making services equally accessible to all users. For several counties, this was not possible and courts had to move from the historical courthouse.

In addition to physical mobility, the needs of those with limited sight or hearing must be considered.

*CourtTimes generally does not provide further identification of its authors. Particularly with legal articles from whatever source, the ILB always tries to include an author's position and qualifications, for the benefit of the reader.

Posted by Marcia Oddi on November 14, 2014 12:51 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Ray Clifton v. Ruby McCammack, a 24-page opinion, Judge Brown concludes:

As in Ryan, “[w]e are satisfied that the evidence designated to the trial court here is such that the alleged emotional distress suffered by [Clifton] is not likely speculative, exaggerated, fictitious, or unforeseeable.” Id. at 124. We therefore conclude that the trial court erred in granting McCammack’s motion for summary judgment and denying Clifton’s motion because Clifton’s claim satisfies the bystander rule and because he has alleged serious emotional trauma that is of a kind and extent normally expected to occur in a reasonable person under similar circumstances.

For the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of McCammack, grant summary judgment in favor of Clifton, and remand for a trial on damages.

In Walgreen Co. v. Abigail E. Hinchy, a 23-page opinion, Judge Baker writes:
In this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend. A jury heard extensive evidence during a four-day trial and ultimately found that the pharmacist and her employer are liable for the damages sustained by the customer as a result of the breach. We are loath to disturb jury verdicts and decline to do so in this case.

Walgreen Company raises a number of issues in this appeal. First, it argues that the trial court erred by refusing to grant summary judgment or a directed verdict in Walgreen’s favor on Abigail Hinchy’s claims based on respondeat superior and negligent retention and supervision of an employee. Second, Walgreen argues that Hinchy’s attorney engaged in improper ex parte communication when he filed a trial brief under seal with the trial court and did not provide a copy to Walgreen. Third, Walgreen contends that the jury was improperly instructed on issues surrounding respondeat superior and the tort of public disclosure of private facts. Fourth, Walgreen argues that the $1.8 million jury verdict was excessive and based on improper factors. Finding no reversible error, we affirm.

In Timothy W. Paul v. Stone Artisans, Ltd., a 10-page opinion, Judge Baker writes:
Timothy Paul appeals the judgment of the trial court finding that he breached his contract with Stone Artisans, Ltd. (Stone Artisans), and foreclosing a mechanic’s lien on his home. Finding no error, we affirm. * * *

We agree with the trial court’s determination that a consideration of the relevant factors points decisively towards enforcing this contract. Although any violation of HICA [Home Improvement Contract Act] is considered a “deceptive act,” Paul was not deceived here. I.C. § 24-5-11-14. He contracted for services which were performed to his satisfaction. It was not until it came time to pay for these services that he lodged any complaint. Appellant’s App. p. 82. HICA aims to protect consumers from abuse, not to provide an escape from legitimate contractual obligations.
The judgment of the trial court is affirmed and the cause is remanded to the trial court for further calculation of appellate attorney fees and costs as provided for in the contract.

NFP civil opinions today (2):

In Landon Q. Jones v. Terry Curry, as the Marion County Prosecutor and Ronald Stiver, as the Commissioner of the Indiana BMV (NFP), a 7-page opinion, Judge Bailey writes:

Jones presents the sole issue of whether Indiana Code section 9-30-10-4(c) prohibits the BMV from using a conviction that supported an initial HTV determination to also support a second HTV determination. * * *

Very recently, a panel of this Court considered a nearly identical contention with respect to Indiana Code section 9-30-10-4(b). In Hill v. State, 15 N.E.3d 589 (Ind. Ct. App. 2014), the appellant argued that the statutory language, “not arising out of the same incident,” prohibited the BMV from using a conviction that supported her initial HTV determination to also support a second HTV determination. * * *

The Hill Court agreed with the State that the statutory language at issue does not include a limitation upon the use of a qualifying conviction to determine HTV status, other than that predicate convictions must not have arisen from the same incident. * * *

Here, similar to Hill, the crucial inquiry of subsection (c) is whether the person has on ten occasions demonstrated, within a ten-year period, that he or she poses a threat to others’ safety. Subsection (c) does not include a limitation upon the use of a qualifying conviction to determine HTV status, other than that predicate convictions must not have arisen from the same incident.

[ILB: Hill v. State is a June 20, 2014 opinion, also authored by Judge Bailey.]

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

NFP criminal opinions today (8):

Trinity Ross v. State of Indiana (NFP)

Rafael Walker v. State of Indiana (NFP)

Shari Melton v. State of Indiana (NFP)

Forrest R. Ferguson v. State of Indiana (NFP)

Henry Morales v. State of Indiana (NFP)

Cody Waldrip v. State of Indiana (NFP)

Ryan K. Hensley v. State of Indiana (NFP)

Ronald F. Graham v. State of Indiana (NFP)

Posted by Marcia Oddi on November 14, 2014 11:00 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disciplinary opinion re noncompete agreement with associate

In the Matter of: J. Frank HANLEY II, filed Nov. 6th, concerns an Indianapolis attorney:

Stipulated Facts: In 2006, Respondent hired an attorney (“Associate”) to work in his law office pursuant to an employment agreement. Respondent’s law practice focuses primarily on Social Security disability law. The employment agreement included a noncompete provision that prohibited Associate from practicing Social Security disability law for two years in the event his employment with Respondent was terminated.

In 2013, Respondent fired Associate. Thereafter, Respondent sent letters to Associate’s clients advising that Associate no longer worked at the firm and that Respondent would be taking over their representation, and in those letters Respondent included Appointment of Representative forms for the clients to complete in order for Respondent to replace Associate as the clients’ representative before the Social Security Administration.

Despite the foregoing, Associate continued to practice Social Security disability law after leaving the firm, and at least two of Associate’s existing clients chose to keep Associate as their lawyer. Respondent did not attempt to enforce the noncompete provision and, after the disciplinary grievances were filed against him, Respondent provided Associate with the files for Associate’s clients.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.
5.6(a): Making an employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.
Discipline: The parties propose the appropriate discipline is a public reprimand. See Matter of Truman, 7 N.E.3d 260 (Ind. 2014). The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.

Posted by Marcia Oddi on November 14, 2014 10:35 AM
Posted to Ind. Sup.Ct. Decisions

Courts - "Woman ticketed for going topless at Chicago event files civil rights suit against city" [Updated]

Martha Neil has the report today in the ABA Journal, quoting from a Chicago Tribune story, which includes a link to a YouTube video of the arrest. A quote from the story reported by Jason Meisner:

Sonoko Tagami, 41, is an ardent supporter of "GoTopless," a not-for-profit organization that "advocates for the right of women to appear bare-chested in public," according to the lawsuit filed in U.S. District Court. * * *

Tagami's suit claims the city's ordinance barring women from exposing "any portion of the breast at or below the upper edge of the areola" is unconstitutionally vague and a violation of free speech. The suit also alleged that since men are excluded from the ordinance, it violates rights to equal protection under the law.

Her attorney, Kenneth Flaxman, said Tagami had never had a problem at demonstrations in the city before this year.

"She was out there for several years making a statement about the absurdity of the law, and each time she had opaque body paint and the cops thought it was cute," Flaxman said. "l guess this time the cops didn't think it was OK."

ILB: Indiana has its own case, heard by a Court of Appeals panel in 2010. The panel elected to designate its opinion as Not for Publication.

The ILB however has a Sept. 16, 2010 post on the case, that includes links not only to the NFP opinion, but to the briefs. Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, represented the defendant in the case. A quote from the summary in his initial brief:

The public nudity statute violates the Equal Protection Clause by prohibiting the display of female nipples while allow men to bare their nipples without limitation. Although the burden is on the State to offer an “exceedingly persuasive” justification for disparate treatment, here the State offered no argument, much less any evidence, to justify treating women differently from men. Moreover, the justifications offered by other courts, such a maintaining public sensibilities, are based on long-standing sexual stereotypes and do not serve a legitimate government interest.
Here is a quote from the panel's NFP opinion, written by Judge Bradford:
In the end, C.T. would have us declare by judicial fiat that the public display of fully-uncovered female breasts is no different than the public display of male breasts, when the citizens of Indiana, speaking through their elected representatives, say otherwise. This we will not do. We conclude that Indiana‟s public nudity statute furthers the goal of protecting the moral sensibilities of that substantial portion of Hoosiers who do not wish to be exposed to erogenous zones in public.
[Updated at 10:45 AM] Prof. Schumm writes to advise that C.T. was later reclassified as For Publication, upon a grant of his motion. Transfer was denied by the Supreme Court.

Posted by Marcia Oddi on November 14, 2014 08:38 AM
Posted to Courts in general | Ind. App.Ct. Decisions | Why is this NFP?

Thursday, November 13, 2014

Ind. Decisions - A third opinion today from Supreme Court, re “adulterated” methamphetamine

In Joseph K. Buelna v. State of Indiana, a 14-page, 5-0 opinion, Chief Justice Rush writes:

The severity of a methamphetamine manufacturing offense depends on the weight of “pure or adulterated” drug the defendant manufactures. But the term “adulterated” is ambiguous in the context of the manufacturing process, which has led to divergent interpretations of how to define, and consequently how to weigh, “adulterated” methamphetamine. We construe “adulterated” meth-amphetamine as a final product, not the total weight of an intermediate mixture still undergoing reaction. This interpretation derives from our precedent discussing “adulterated” drugs, practical considerations about the manufacturing process, the structure of the methamphetamine statute, and the rule of lenity. Accordingly, when the State seeks to establish the weight of manufactured meth-amphetamine based on an intermediate mixture that contains methamphetamine, it must demonstrate how much final product that mixture would have yielded had the defendant finished the manufacturing process. [ILB emphasis]

Here, the State presented no such evidence and thus may not use the intermediate mixture to establish the three-gram weight enhancement for Class A felony manufacturing methamphetamine. Yet, the record shows that Defendant manufactured additional final product that exceeded the three-gram threshold. On the basis of that additional final product, we find the evidence sufficient to sustain Defendant’s conviction.

Posted by Marcia Oddi on November 13, 2014 04:04 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Pence, state differ on vets' contracts"

Niki Kelly of the Fort Wayne Journal Gazette reported on Nov. 11th:

INDIANAPOLIS – Gov. Mike Pence is claiming he met – and exceeded – a goal to send state contracts to veteran-owned businesses even though statistics released to the Journal Gazette in May showed the state lagging far behind.

Lawmakers passed a bill in April 2013 setting a 3 percent contracting goal for Indiana Veterans Business Enterprises each fiscal year.

The law went into effect July 1, 2013, and the fiscal year ran through June 2014.

In May, the Indiana Department of Administration reported to The Journal Gazette that awards to fewer than a dozen veteran businesses totaled $811,000 – $251,000 as prime contractors and $559,000 as subcontractors. To reach the 3 percent goal, the veteran contracts would have to reach about $2.2 million.

“This program began in July 2013 and was available to bidders on new state contracts,” said Connie Smith, former communications director for the Department of Administration. “A (request for proposal) can take 6 months or longer so it will be some time before contracts to veteran-owned businesses reach 3 percent.”

But Pence announced Monday – the day before Veterans Day – that the state had awarded 6 percent of its state contracts to Veterans Business Enterprises.The awards totaled $16.7 million to 62 entities between July 2013 and September 2014.

The Pence administration did not respond to questions seeking clarification Monday afternoon.

It is also unclear why the state included July and August in the calculation because they are part of a new fiscal year.

Posted by Marcia Oddi on November 13, 2014 01:45 PM
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court decides two today; important administrative law ruling

A reader writes:

The First American Title decision today is huge re: failure to exhaust no longer goes to subject matter jurisdiction.
See p. 4-5:
We summarily affirm that portion of the Court of Appeals opinion holding that the exhaustion of administrative remedies under AOPA is a procedural error and does not implicate the trial court’s subject matter jurisdiction.[3]
[3] We also summarily affirm that portion of the Court of Appeals opinion declaring the Commissioner’s hearing order untimely and void, as well as that portion of the opinion declaring that a petitioner seeking judicial review of an agency decision need not demonstrate a separate showing of prejudice.
Here is the May 13, 2013 Court of Appeals opinion.

Posted by Marcia Oddi on November 13, 2014 12:22 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides two today; important administrative law ruling

In Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education, a 10-page, 5-0 opinion, Justice Rucker writes:

Resolving a long-standing lack of consensus on the subject, today we hold that a petitioner seeking judicial review of an agency action must file with the trial court the agency record as defined by the Administrative Orders and Procedures Act. Failure to do so results in dismissal of the petition. * * *

In support of their respective positions for the need vel non of a complete agency record both parties rely on this Court’s evenly divided [J.Sullivan did not participate] decision in Indiana Family and Social Services Administration v. Meyer, 927 N.E.2d 367 (Ind. 2010).

In sum we hold a petitioner for review cannot receive consideration of its petition where the statutorily-defined agency record4 has not been filed. In our view this bright-line approach best serves the goals of accuracy, efficiency, and judicial economy. Here because TOPS did not file the agency record as anticipated by AOPA, the trial court properly dismissed its petition for judicial review.

In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, On Behalf of the Indiana Department of Insurance, a 9-page, 5-0 opinion, Justice Rucker writes:
In another opinion decided today we held that a petitioner seeking judicial review of an agency decision must file the agency record as defined by the Administrative Orders and Procedures Act and that the failure to do so results in dismissal of the petition. See Teaching Our Posterity Success, Inc., v. Ind. Dept. of Educ., ___ N.E.3d ___, No. 49S05-1411-PL-0700 (Ind. Nov. 13, 2014). We apply that holding here. * * *

First American acknowledges that it did not transmit the agency record to the trial court as anticipated by AOPA. It insists however that the documents presented to the trial court were sufficient to decide whether the Commissioner’s hearing order was void. According to First American, “the only documents relevant to judicial review were the April 15, 2012 Order appointing an ALJ to conduct an investigative hearing and the April 19, 2012 Order setting the investigative hearing for July 12, 2012.” Reply Br. of Appellant at 24-25. First American correctly notes these documents were attached to its petition for judicial review. In support of its contention First American relies heavily on Izaak Walton League of America, Inc. v. Dekalb County Surveryor’s Office which declared, among other things: “We think the purposes of the statutes governing what constitutes an adequate agency record . . . are clear. The record must include all that is necessary . . . to accurately assess the challenged agency action.” 850 N.E.2d 957 at 965 (Ind. Ct. App. 2006).

But in an opinion we decide today we declare a “bright line” rule effectively abrogating Izaak Walton and similar cases.
[ILB emphasis] “[W]e hold a petitioner for review cannot receive consideration of its petition where the statutorily-defined agency record has not been filed. In our view this bright-line approach best serves the goals of accuracy, efficiency, and judicial economy.” Teaching Our Posterity Success, Inc., ___ N.E.3d at ___, No. 49S05-1411-PL-700, slip op. at 9-10 (footnote omitted). In this case First American did not file the agency record with the trial court. Therefore its petition for judicial review cannot be considered. The trial court thus erred in failing to grant the Commissioner’s motion to dismiss the petition.

We reverse the judgment of the trial court.

Posted by Marcia Oddi on November 13, 2014 11:41 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In XYZ, D.O., v. Robin Sykes and Thomas Williams, and ABC Hospital, a 13-page opinion, Judge Crone writes:

XYZ, D.O. (“Doctor”) brings an interlocutory appeal from the trial court’s denial of his motion to disqualify attorney Michael S. Miller and the law firm of Montross, Miller, Muller, Mendelson & Kennedy (collectively “MMMMK”) from representing Robin Sykes and Thomas Williams (“the Plaintiffs”) in their suit for negligence and loss of consortium against Doctor and ABC Hospital (“the Hospital”). Doctor moved to disqualify MMMMK arguing that MMMMK has an imputed conflict of interest because one of its current employees, attorney Kathleen Clark, previously represented Doctor as his primary lawyer in six medical malpractice cases. Doctor asserts that the trial court abused its discretion in denying the motion to disqualify. We agree with Doctor and therefore reverse the trial court’s decision and remand for further proceedings. * * *

We emphasize to the parties that we recognize that the imputed disqualification of an entire law firm is a serious penalty and that we do not make our decision lightly. [ILB emphasis] That said, we must be cognizant that “public trust in the integrity of the judicial process requires that any serious doubt be resolved in favor of disqualification.” Robertson v. Wittenmyer, 736 N.E.2d 804, 806 (Ind. Ct. App. 2000). This case squarely raises such serious doubt. Therefore, we are constrained to conclude that the trial court abused its discretion in denying Doctor’s motion to disqualify MMMMK. The trial court’s interlocutory order is reversed, and this case is remanded for further proceedings consistent with this opinion.

In Matthew Townsend v. Lyvonda Townsend, a 10-page opinion, Judge Barnes writes:
Matthew Townsend (“Father”) appeals the trial court’s order requiring him to pay the appellate attorney fees of his ex-wife, Lyvonda Townsend (“Mother”). We affirm. * * *

Because Mother’s request for appellate attorney fees was based on Indiana Code Section 31-15-10-1, the trial court was not required to consider Appellate Rule 66(E) in awarding her appellate attorney fees. Father has not established that the trial court abused its discretion in awarding Mother appellate attorney fees. We affirm.

In R.M. v. State of Indiana , an 8-page opinion, Judge Bradford writes:
On December 2, 2013, Jane Buckingham was working as a science teacher at Northwest High School in Indianapolis when Appellant-Respondent R.M. requested permission to place his backpack behind Buckingham’s desk. Buckingham initially granted R.M. permission to do so, but later became concerned about whether there was contraband in the backpack. Buckingham contacted Indiana Public School Police Sergeant Jeffrey Brunner who searched the backpack, finding a handgun. On February 18, 2014, Appellee-Petitioner the State of Indiana (the “State”) filed a petition alleging that R.M. was a delinquent child for committing what would be Class C felony carrying a handgun without a license and Class D felony possession of a firearm inside a school if committed by an adult. Following a fact-finding hearing, the juvenile court adjudicated R.M. to be a delinquent child for committing the above-stated acts and placed R.M. on probation.

On appeal, R.M. argues that the juvenile court abused its discretion in admitting the handgun into evidence during the fact-finding hearing because the handgun was discovered during an unreasonable search of his backpack in violation of the Fourth Amendment to the United States Constitution. Upon review, we conclude that Sergeant Brunner’s search of the backpack was reasonable. As such, we further conclude that the juvenile court did not abuse its discretion in admitting the handgun into evidence. Accordingly, we affirm the judgment of the juvenile court.

In Thomas L. Esmond v. State of Indiana, a 15-page opinion, Judge Mathias writes:
Thomas L. Esmond (“Esmond”) brings this interlocutory appeal from the order of the Newton Superior Court requiring him to undergo a psychiatric evaluation by the State’s mental health expert without the presence of counsel. Because the Indiana Supreme Court has held that a defendant who raises an insanity defense has no right to the presence of counsel during a psychiatric examination, we affirm. * * *

Riley, J., concurs.
Crone, J., concurs with separate opinion. [which concludes] For all these reasons, I believe that our supreme court should revisit Williams and Taylor and reconsider its presumption that the Sixth Amendment does not entitle a criminal defendant to the assistance of counsel during a psychiatric examination by the State’s expert. And although Esmond does not raise a separate argument under the Indiana Constitution, it bears repeating that Article 1, Section 13 “affords citizens greater protection than its federal counterpart[.]” Hall, 870 N.E.2d at 460.

NFP civil opinions today (6):

Jerry French v. Rebecca (French) Lambert (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: A.S. and B.S. (Minor Children) and D.J. (Mother) and H.S. (Father) v. The Indiana Department of Child Services (NFP)

In the Matter of the Paternity of S.P., Minor Child, K.M., Father v. A.P., Mother, and State of Indiana (NFP)

Kelly Robertson v. Elkhart Housing Authority (NFP)

T.D., and Ti. D. alleged to be CHINS and T.D. (father) v. Dearborn Co. Dept. of Child Services (NFP)

In Re the Paternity of B.M.: J.M. v. M.S. (NFP)

NFP criminal opinions today (2):

Corey Weaver v. State of Indiana (NFP)

Carl Gleason v. State of Indiana (NFP)

Posted by Marcia Oddi on November 13, 2014 11:19 AM
Posted to Ind. App.Ct. Decisions

Courts - Several interesting takes on the latest challenge to the Affordable Care Act

A few quotes from EJ Dionne's column today in the Washington Post:

To the shock of many neutral legal analysts, four justices decided to take up an absurd legal challenge to the health-care law even before a lower court can rehear the case and before there is a conflict that typically triggers the high court’s involvement.

At issue is one phrase in the law that, in the worst possible construction, is a drafting error. It declares that subsidies to help people buy insurance will be available to those who were enrolled “through an exchange established by the State under [section] 1311.” * * *

Now let’s be clear: Not even the most conservative Supreme Court justices seemed to think this language was a problem before the conservative lawyers went to work.

In their dissent from the 2012 decision upholding the law, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito read the law exactly as its supporters do. They wrote: “Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” And they noted of the law’s structure: “That system of incentives collapses if the federal subsidies are invalidated.” * * *

There’s another conservative legal school called “textualism,” which, as the name suggests, involves paying close attention to the actual text of a statute. Abbe Gluck, a Yale Law School professor, has written a very helpful article on SCOTUSblog that not only points to the straightforward reading of the law that the conservative justices offered in that earlier dissent but also cites none other than Justice Scalia to guide us as to what textualism demands.

Textual interpretation, Scalia insisted, should be “holistic” and “contextual,” not “wooden” or “literal.” Courts, he said, should adopt the interpretation of a law that “does least violence to the text,” declaring that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.”

If Scalia wants to be true to his own principles, can he possibly side with a convoluted reading of the law that apparently never occurred to him before?

Here is the article by Yale Prof. Abbe Gluck that the column quoted above references. It is titled " The grant in King – Obamacare subsidies as textualism’s big test." A few quotes:
Textualists have spent three decades convincing judges of all political stripes to come along for the ride, and have had enormous success in establishing “text-first” interpretation as the general norm. In so doing, textualists have repeatedly emphasized that textual interpretation is to be sophisticated, “holistic” and “contextual,” not “wooden” or “literal,” to use Justice Scalia’s words. A lot of us (myself included) have gone to bat for this version of textualism, arguing that it is democracy enhancing and in furtherance of rule-of-law values, such as predictability.

The King challengers put all that on the line, and threaten all that textualists have accomplished. This is because King is not actually a text-versus-purpose case. Rather, King is about the proper way to engage in textual interpretation; specifically, about the interpretation of five words in a long and complex modern statute. And no one has to – or should – go outside the four corners of the Affordable Care (ACA) to decide it. So let’s cast aside the red herring of untethered purpose, and ask the question that gives King significance beyond the politics of health reform (and is a reason for the Court to avoid those politics): Will the Court follow, what Justice Scalia just five months ago (in Utility Air Regulatory Group v. EPA) called “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”?

The very long and I think very good analysis concludes:
Textualists have spent the past thirty years persuading even their opponents of the jurisprudential benefits of a sophisticated text-based interpretive approach. The King challengers put that all at risk. To be clear: my argument isn’t about the merits of the ACA. The ACA isn’t perfect health policy. But the King challenge is all about the ACA’s merits. They have vowed to destroy the statute at any cost, even if it means corrupting textualism to do it.
Lastly, here is an opinion piece from Linda Greenhouse, in the Nov. 12th NY Times. Some quotes:
Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. * * *

There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.

Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriage cases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.

A panel of the United States Court of Appeals for the District of Columbia Circuit ruled 2-to-1 the other way, accepting the plaintiffs’ argument that the language of the statute limits the tax subsidies to those who buy insurance through the state exchanges, which only 14 states have chosen to set up. The full appeals court quickly vacated the panel’s judgment and agreed to rehear the case. The new argument was set for next month, and the briefs were already filed. The absence of a circuit conflict and an imminent rehearing by the country’s most important court of appeals would, in the past, have led the Supreme Court to refrain from getting involved. * * *

Congress assumed that most states would set up exchanges; most states, led by red-state governors, did not. Section 1321 of the law provides that when a state defaults, the secretary of health and human services shall “establish and operate such Exchange within the State.” Clear enough: “such Exchange” implies, without explicitly saying so, that the federal exchange stands in for the missing state’s exchange and assumes its functions. But another section, 1401, explicitly makes the tax subsidies available to taxpayers and their dependents who buy insurance “through an Exchange established by the State.” Those challenging the law say this means “only the state” and that the I.R.S. is not authorized to give subsidies to the more than five million people enrolled through federally run exchanges.

These two provisions, part of a 900-page statute that was cobbled together without going through the usual House-Senate conference committee in which it might have been cleaned up, are the source of the confusion. The answer to the problem, as the Fourth Circuit panel found unanimously in the King case, is obvious. It’s a basic principle of administrative law that when a federal statute is ambiguous, courts defer to the agency’s interpretation — here, the I.R.S. regulation that makes the tax credits available without regard to whether the exchange is state or federal.

The 1984 decision that established this deference principle, Chevron U.S.A. v. Natural Resources Defense Council, Inc., is so central to the modern understanding of how the government works that it is among the most often invoked Supreme Court decisions of all time, cited in some 13,000 judicial decisions so far, a number that grows at the rate of about 1,000 a year. The tax provisions of the Affordable Care Act fall so naturally onto the “Chevron deference” landscape that it would take an agenda-driven act of judicial will to keep them out and to conclude that Congress enacted a law that contained the seeds of its own destruction.

Posted by Marcia Oddi on November 13, 2014 10:00 AM
Posted to Courts in general

Ind. Decision - 7th Circuit issues written opinion Nov. 12 in Ind. BMV case which it had reversed on the day of oral argument, Oct. 27

In USA v. LYN RIVERA BORRERO, et al. (ND Ind., DeGuilio), a 12-page opinion, Judge Easterbrook writes:

Indiana’s Bureau of Motor Vehicles will not register or transfer title to a car or other mo-tor vehicle unless the buyer furnishes information that in-cludes a Social Security number. 140 Ind. Admin. Code §6-1-2. For corporations and similar entities, by contrast, Indiana wants a federal employer identification number (EIN). It is possible to obtain an EIN without having a Social Security number. The Internal Revenue Service will issue an employ-er identification number to anyone who has an individual taxpayer identification number (ITIN), and it will issue an ITIN to anyone who wants one. Persons who cannot obtain Social Security numbers—including not only aliens whose visas do not allow them to work in the United States, but al-so aliens who lack authority to be in the United States at all—can have an ITIN for the asking and use it for many fi-nancial transactions.

Omar Duran Lagunes and four colleagues established a business to help people without Social Security numbers navigate the process of titling vehicles in Indiana and obtain-ing license plates. For each client, Duran’s service used a cli-ent’s individual taxpayer identification number to obtain an employer identification number, registered a limited liability company named after the client (so John Doe received “John Doe LLC”), and submitted in the LLC’s name the required paperwork and fees. The service used clients’ real names and addresses. Each client paid about $350, which included the fees remitted to the Bureau of Motor Vehicles. Indiana issued the titles and licenses as requested; the state has never sug-gested that holding title to a personal vehicle through an LLC violates any rule of state law. Nor has the Internal Rev-enue Service stated that it is improper to obtain an employer identification number for use by an entity that will own property but not generate income.

But the United States Attorney for the Northern District of Indiana procured an indictment charging Duran and colleagues with two federal crimes. Count One alleges that defendants conspired, in violation of 8 U.S.C. §1324(a)(1)(A)(v)(I), to violate 8 U.S.C. §1324(a)(1)(A)(iii) and (iv) by shielding unauthorized aliens from detection and encouraging them to reside in the United States. It also alleges that defendants violated 18 U.S.C. §2 by aiding and abetting the violation of §1324(a)(1)(A); this does not add anything, so we do not mention §2 again. Count Two alleges that defendants conspired to commit mail or wire fraud, in violation of 18 U.S.C. §1349. All defendants were convicted of both counts and have been sentenced to imprisonment as short as 24 months (Evelyn Rivera Borrero and Yalitza Exclusa-Borrero) and as long as 84 months (Duran). * * *

Section 1324(a)(1)(A)(iv) does not make the use of LLCs essential to a violation. Nor does the statute declare it to be a federal felony to use LLCs that lack a busi-ness, as opposed to personal, objective (another proposed distinction). None of the prosecutor’s stopping points has anything to do with the text of §1324(a)(1)(A)(iv).

These convictions can be sustained only if the provision of any sufficiently valuable service—food, medicine, trans-portation—to an unauthorized alien is a felony because it helps the alien “reside” in the United States. That would take the statute beyond a sensible understanding; the Rule of Lenity, if nothing else, would forbid it. * * *

The convictions on Count One are reversed, and the convictions on Count Two are vacated. We remand for entry of a judgment of acquittal on Count One. The United States Attorney must decide whether to reprosecute Count Two on a charge shorn of any allegation that title papers and licenses are “property” from Indiana’s perspective. Pending the new trial (if one occurs), all defendants are entitled to be released on bail. Some of them may already have served more time than would be appropriate following a conviction on Count Two alone. (That is why we entered a judgment of reversal on the day this case was argued, while telling the parties than an opinion would follow.)

Note that the heading indicates the case was decided Oct. 27, and the opinion was issued Nov. 12th.

Posted by Marcia Oddi on November 13, 2014 09:32 AM
Posted to Ind Fed D.Ct. Decisions

Wednesday, November 12, 2014

Ind. Courts - "Indiana high court weighs taking up St. Joe County adoption case"

Oral argument in the case of Jason and Justina Kramer v. Catholic Charities of the Diocese was heard Monday morning at Purdue by the Indiana Supreme Court. This post from Nov. 11 briefly touches on the merits of the case itself. A story today by Madeline Buckley in the South Bend Tribune goes into more detail.The long story begins:

The Indiana Supreme Court heard oral arguments Monday in a St. Joseph County lawsuit that sprang from a case in which a baby’s father took custody of the child after she was placed with an adoptive family.

The state’s high court will decide whether to rule on the case, which could flesh out an adoption agency’s responsibilities when placing children with families.

The saga began more than four years ago when a Goshen family took home a baby girl in May 2010, believing the adoption would soon be finalized.

But the baby’s father established paternity after Jason and Justina Kramer took the child home. The couple say the placement by the agency, Catholic Charities, caused pain and suffering because they had bonded with the child.

The Kramers sued Catholic Charities, accusing the agency of negligence because it checked the state’s putative father registry after it placed the baby with the couple, though the adoption was not finalized. The suit argues that if the agency had checked the registry before the placement, it would have learned about the father and never placed the child with the couple in the first place.

“The emotional attachment begins right away,” said the Kramers’ attorney, Charles Rice, at the oral arguments. “It doesn’t begin when the paperwork is done.”

But attorneys for Catholic Charities have argued that the Kramers signed a release acknowledging the risk in placement of the child before the adoption is final. It was an argument St. Joseph Circuit Court Judge Michael Gotsch agreed with when he ruled in favor of the agency.

“There is an inherent risk in any adoption proceeding,” argued Catholic Charities’ attorney, J. Thomas Vetne.

But the Kramers appealed, and the Indiana Court of Appeals reversed Gotsch’s summary judgment and ordered a trial in St. Joseph County Circuit Court, where the Kramers would ask a judge to award damages. The appeals court said the release the Kramers signed did not cover alleged negligence.

Now, Catholic Charities has asked the Supreme Court to hear the case, a request the justices are considering after listening to the oral arguments.

Posted by Marcia Oddi on November 12, 2014 01:15 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Frederick Holmes-Bey v. Keith Butts , a 6-page opinion involving a pro se petitioner, Judge Bailey writes:

Frederick Holmes-Bey (“Holmes-Bey”), a prisoner in the Indiana Department of Correction (“DOC”) and participant in the Indiana Sex Offender Management and Monitoring (“SOMM”) Program, received a disciplinary sanction in February of 2014. He sought to file, in the United States District Court, Southern District of Indiana, a petition under 28 U.S.C. § 2254, for a writ of habeas corpus, naming as respondent Keith Butts, Warden. The petition was inadvertently mailed to the Clerk of the Henry Circuit Courts, and the petition was stamped as filed in the Henry Circuit Court 2 and a cause number was assigned. Although Holmes-Bey discovered his error and notified the circuit court via letter, the circuit court re-captioned the matter to reflect a state court action, named the State of Indiana as the respondent, and entered an order denying the petition. Holmes-Bey appealed and the Indiana Attorney General filed a notice of non-involvement. Holmes-Bey presents the sole issue of whether the trial court lacked subject matter jurisdiction to enter the order of denial. We reverse and remand with instructions to dismiss. * * *
The trial court sua sponte altered Holmes-Bey’s complaint arising from a prison disciplinary decision and issued an order denying relief. However, the trial court lacked subject matter jurisdiction to do so. Reversed and remanded with instructions to dismiss the petition.
In Jeffrey Z. Hayden v. State of Indiana, a 17-page opinion, Judge Bailey writes:
Hayden raises four issues for our review:
I. Whether there was sufficient evidence to support Hayden’s convictions for Burglary and Residential Entry;
II. Whether the trial court abused its discretion when it declined to adopt Hayden’s proposed jury instruction defining the term “dwelling”;
III. Whether the trial court abused its discretion when it ruled as inadmissible hearsay certain testimony Hayden proffered; and
IV. Whether the charging information lacked specificity as to certain alleged facts, such that Hayden could not receive a fair trial.
We raise sua sponte whether certain of the charges for which Hayden was convicted must be vacated under double jeopardy principles. * * *

There was sufficient evidence that Ronald’s house was a dwelling to support Hayden’s conviction for Burglary. The trial court did not abuse its discretion when it declined Hayden’s proffered jury instruction. Any errors in the trial court’s hearsay rulings on Hayden’s proffered testimony were, at most, harmless. The charging information was not so vague as to deprive Hayden of his right to a fair trial. We remand the case to the trial court with instructions to clarify the entry of judgment and to vacate the guilty verdict on Residential Entry.

NFP civil opinions today (3):

Dr. Steven C. Prescott v. St. Mary of the Woods College (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: A.L., A.F.L, C.L. and C.L. & A.l. v. The Ind. Dept. of Child Services (NFP)

Jlo, Llc. v. Kent Kalley, Aaron D. Kalley, Industrial Centre Federal Credit Union, Town of Yorktown, Muncie Sanitary District, et. al. (NFP)

NFP criminal opinions today (12):

Jason L. Dague v. State of Indiana (NFP)

Sergio C. Poitan v. State of Indiana (NFP)

Charles S. Howlett v. State of Indiana (NFP)

Kenneth Kilpatrick v. State of Indiana (NFP)

James T. Bagby v. State of Indiana (NFP)

Jeff Leath v. State of Indiana (NFP)

Nathaniel Harris v. State of Indiana (NFP)

Thomas Holliday v. State of Indiana (NFP)

Kendra D. Phillips v. State of Indiana (NFP)

Maurice T. Higgins v. State of Indiana (NFP)

Eric A. Turner v. State of Indiana (NFP)

Brandon Stewart Temple v. State of Indiana (NFP)

Posted by Marcia Oddi on November 12, 2014 10:51 AM
Posted to Ind. App.Ct. Decisions

Law - "Conference of Chief Justices and Conference of State Court Administrators respond to 'Guilty and Charged'"

The ILB on September 29 posted a long entry on local governments such as Ferguson, Missouri funding their operations by high court fees and high fees for access to public records. A sample from a Governing story that was quoted:

Ferguson's budget relies heavily on public safety and court fines that have skyrocketed in recent years. A review of Ferguson’s financial statements indicates that court fine collections now account for one-fifth of total operating revenue.
The ILB post also quotes the NYT, the AP, and NPR. The post ends by asking "What about Indiana" and references a bill that nearly passed the General Assembly last year that "even included provisions allowing an agency to charge a person using a cell phone for photographing a record."

Indiana CourtTimes published in its recent issue an "EDITORIAL: Conference of Chief Justices and Conference of State Court Administrators respond to 'Guilty and Charged,'" which was the title of the NPR series. A quote:

Since the 1970s, the Conference of Chief Justices (CCJ)—the association of top judges from the 50 states, DC and the territories—has maintained the position that court functions should be funded from the general operating fund of the states in order that the judiciary can fulfill its obligation of upholding the Constitution and protecting the individual rights of all citizens by providing access to justice for all.

In 2012, the Conference of State Court Administrators (COSCA)—the association of management executives that oversee judicial administration in the state courts—produced a position paper entitled “Courts are Not Revenue Centers.” The policy paper outlines a series of principles, including:

  • Courts should be substantially funded from general governmental revenue sources, enabling them to fulfill their constitutional mandates
  • Neither courts nor specific court functions should be expected to operate exclusively from proceeds produced by fees and miscellaneous charges
  • Optional local fees or miscellaneous charges should not be established.

Posted by Marcia Oddi on November 12, 2014 09:46 AM
Posted to General Law Related