The Indiana Law Blog

Friday, November 06, 2009

Courts - "Comment decision in New Hampshire high court’s hands"

Adding against to the ILB's list of entries on impacts of and access to anonymous posts and comments, Ashley Smith reported in the Nov. 5th Nashua NH Telegraph. Some quotes from the lengthy story:

CONCORD – The New Hampshire Supreme Court heard arguments Wednesday in a free-speech case that calls into question whether media outlets can protect the identities of anonymous online commenters.

The case also has potentially broad implications in determining who constitutes the media in an Internet age that has blurred the line between traditional news outlets and bloggers or citizen journalists. * * *

The complex case centers around a mortgage-industry watchdog Web site Mortgage Lender Implode-O-Meter that posts news from other sources about the housing finance crisis. Last fall, the site posted a story about a New Hampshire company, The Mortgage Specialists Inc., that was being investigated by banking officials for a number of alleged violations, including forging signatures, destroying documents and unfair or deceptive 
business practices.

Along with the story, Implode-O-Meter staff posted a confidential financial document MSI had prepared for the New Hampshire Banking Department, which was provided to them by an unnamed source. Some time later, a writer using the pseudonym “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.

MSI asked the site’s publisher, Implode-Explode Heavy Industries, to take down the document and comment, which it did. But the publisher refused to identify the person who leaked the chart or the commenter. It also refused to promise that it wouldn’t repost the chart in the future.

MSI eventually sued, and won.

A Rockingham County Superior Court judge ordered the publisher to reveal its anonymous sources to the company and not to post confidential documents in the future. The Web site appealed that decision to the state’s Supreme Court, which agreed to take on the case.

Posted by Marcia Oddi on November 6, 2009 12:31 PM
Posted to Courts in general

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

For publication opinions today (2):

In Robert P. Koors, et al. v. Walter W. Steffen, et al. , a 10-page opinion, Judge Bradford concludes:

Having determined that the parties agreed that any and all issues arising out of the Contract, including issues relating to liens, shall be submitted to binding arbitration, and that the Steffens have not waived their right to demand arbitration, we now consider Koors’s contention that the trial court abused its discretion in dismissing the instant matter rather than staying the matter pending arbitration. * * *

Here, the record demonstrates that although the entire controversy between Koors and the Steffens arose out of and related to the Contract, further action by the trial court could potentially be required if the arbitration panel were to find for Koors and determine that foreclosure is a proper remedy. We note that had we concluded that the parties’ Contract was a no lien contract, then we would agree that dismissal of the instant action would have been proper. However, having concluded that the parties’ Contract did provide for the possibility that a lien could arise out of the parties’ Contract, and in light of Indiana Code section 32-28-3-6 (2009) which requires that a complaint for foreclosure “must be filed not later than one year after the date the statement and notice of intention to hold a lien was recorded,” we conclude that the proper action would have been to stay the matter pending arbitration.[2] Therefore, under these circumstances, we conclude that the trial court abused its discretion in dismissing rather than staying the matter pending arbitration.
______________
[2] In concluding that the dismissal of the instant matter constituted an abuse of the trial court’s discretion, we note that although Indiana Code section 34-11-8-1 (2009) provides that a plaintiff’s action that is subsequently dismissed for any cause except plaintiff’s negligence in the prosecution of said action may bring a new action within three years after the date of the dismissal of the prior action, and the new action shall be considered a continuation of the plaintiff’s original action, we observe that while remote, it is possible that arbitration proceedings may not conclude within three years and as a result, Koors could potentially be left without the ability to foreclose as a proper remedy.

Teddy L. Garcia v. State of Indiana - "The conviction of Operating a Motor Vehicle While Intoxicated, as a Class A Misdemeanor is affirmed. The elevated conviction as a Class D Felony is reversed, as is the Habitual Substance Offender enhancement. The cause is remanded for further proceedings."

NFP civil opinions today (0):

NFP criminal opinions today (1):

Kevin N. Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on November 6, 2009 10:46 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case, and an interesting voter registration / privacy case from Illinois

In USA v. James Owens (SD Ind., Judge McKinney), an 8-page opinion, Judge Kanne writes:

James Owens pled guilty to transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Owens’s plea agreement included a stipulation of the sentencing guidelines offense level calculation, including all aggravating and mitigating sentencing factors, except for one enhancement. The parties could not agree on the applicability of U.S.S.G. § 2G2.2(b)(3)(B), which comes into play when a defendant expects to receive a thing of value in exchange for his distribution of child pornography. Owens maintains that he should receive only a two-level enhancement because he did not expect to receive anything of value, and even if he did have an expectation, that expectation was of “role play” and not of a sexual encounter. The government maintains that Owens did expect to receive a sexual encounter, and accordingly, the five-level enhancement was appropriate. The district court agreed with the government and sentenced Owens to a term of 360 months’ imprisonment. Owens appealed the enhancement to his sentence, and we now affirm. * * *

Owens transmitted child pornography with the end goal of receiving a thing of value, namely sex, from the recipient. Because Owens’s ultimate goal was a sexual encounter with Erica and her children, and because neither the statute nor our precedent contain a temporal component in conjunction with the transfer, we AFFIRM the sentence.

In Joseph Lake v. Neal (ND Ill.), a 6-page opinion, Judge Evans writes:

The Duck Test holds that if it walks like a duck, swims like a duck, and quacks like a duck, it’s a duck. Joseph Lake, the plaintiff in this suit, flunks the Duck Test. He says, in effect, that if it walks like a duck, swims like a duck, and quacks like a duck, it sure as heck isn’t a duck.

The crux of Lake’s argument in this appeal is that a voter registration form is actually a motor vehicle record. He argues that the Chicago Board of Election Commissioners (Board) violated the Driver’s Privacy Protection Act (DPPA)—which regulates motor vehicle records—by disclosing personal information it obtains from voter registration records that were completed at an office of the Illinois Department of Motor Vehicles (DMV). After a parallel claim in state court was dismissed with prejudice, Lake instituted this class action suit against the Board. Recognizing a fatal flaw in Lake’s argument, the district court granted the defendants’ motion to dismiss for failure to state a claim. * * *

In 1998, Lake applied for a driver’s licence at an office of the Illinois DMV. Pursuant to the National Voter Registration Act (NVRA), he exercised an option to register to vote at the same time. He filled out and submitted a voter registration form, which was attached to the driver’s license application. The completed voter registration form was transmitted to the Board. In 2007, a fellow named Peter Zelchenko acquired Lake’s personal information—he says it was his name, date of birth, sex, address, former address, phone number, and social security number—by simply asking the Board for it. Zelchenko informed Lake that he acquired his personal information from the Board.

Lake raises two issues on appeal, but we need only discuss one: Did his complaint state a cause of action under the DPPA? * * *

Since a voter registration form filled out at the DMV is not a motor vehicle record under the DPPA, the Board could not have violated the DPPA by disclosing Lake’s personal information to the extent that it did.

Accordingly, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on November 6, 2009 10:31 AM
Posted to Ind. (7th Cir.) Decisions

Courts - "Court blocks Illinois' parental notification law: State panel had cleared enforcement of law, but hours later a judge grants ACLU restraining order"

This NY Times story from Nov. 3rd, reported by Monica Davey and headed "Illinois Curb on Minors’ Abortions Nears ," provides background. It begins:

CHICAGO — Illinois officials are expected to decide Wednesday when to begin enforcing a state law requiring doctors to notify a parent of anyone under 18 who seeks an abortion. The decision could prove to be a concluding chapter in the state’s debate, more than a quarter-century old, over parental notification.

But enforcement of such laws has long been blocked in the courts in a handful of other states, of which Illinois was one until this summer. Then a federal appeals court resolved a constitutional challenge by finding that a notification law enacted in Springfield in 1995 could indeed take effect. Enforcement has since been delayed by procedural issues that are to be addressed in Wednesday’s decision.

Opponents of abortion say they view the possibility of compliance at last, perhaps by late this week, as a chance to end what they perceive as an unwelcome magnet in the nation’s middle. Illinois, they say, has become a place that attracts young women from around the Midwest who are seeking abortions because, unlike neighboring states, it has not been able to enforce parental notification. * * *

Under the law, doctors are required to notify a parent or an adult guardian of anyone under 18 who seeks an abortion, or risk action by the state’s Medical Disciplinary Board.

Exceptions are allowed for medical emergencies and cases in which the minor states in writing that she is a victim of sexual abuse, physical abuse or neglect by a parent or other adult family member, circumstances that abortion rights advocates say many young women will be unwilling to acknowledge.

The law also allows those under 18 to seek a waiver from a judge, who could find them mature enough to make their own decision or find that telling a parent would not be in their best interest.

Critics have questioned the notion of waivers, arguing that young women may be unprepared to navigate the legal system, that their privacy could be jeopardized and that the process could take too long.

It was in part because of a challenge to the constitutionality of a waiver system that the Illinois law was enjoined by the courts for 14 years. Then, after this summer’s federal appellate decision, the state’s Department of Financial and Professional Regulation added a 90-day grace period for doctors while the state developed such a system. Last week state officials extended the grace period until at least Wednesday, when the Medical Disciplinary Board is expected to consider whether an adequate system now exists.

Should the decision be to have enforcement of the law begin immediately, those pursuing the new challenge in state court say, they will seek a temporary restraining order Wednesday afternoon.

And indeed they did, as this story by Sara Olkon in yesterday's Chicago Tribune reports. Some quotes:

In a dramatic turn of events, a Cook County Circuit Court judge halted Illinois' parental notification law on abortion just hours after a state agency gave it the all-clear.

Judge Daniel Riley granted a temporary restraining order sought by the American Civil Liberties Union of Illinois in the late afternoon, hours after Illinois' medical disciplinary board decided the state could begin enforcing the law. It requires physicians to notify parents or guardians when those 17 or younger seek abortions.

The restraining order was based on an October lawsuit filed by a Chicago physician and a Granite City women's medical clinic who believe the 1995 law is unconstitutional and would harm minors by preventing them from obtaining safe abortions or force them to carry their pregnancies to term. * * *

Critics of the delay say teens from neighboring states with stricter rules drive to Illinois to avoid talking to their parents about a pregnancy. Iowa requires notification, and with some exceptions, doctors performing abortions in Indiana, Michigan, Missouri and Wisconsin must have parental consent before doing the procedure.

The NY Times story includes this graphic showing the status of the various states.

Posted by Marcia Oddi on November 6, 2009 10:06 AM
Posted to Courts in general

Ind. Decisions - Anthony J. Wallingford suspended from Indiana practice

Here is a long list of ILB entries on :New Albany attorney Anthony Wallingford, who on Aug. 9, 2008 pleaded guilty to sexual battery involving a 16-year-old girl, and on Dec. 5, 2008 was suspended pendente lite from the practice of law in Indiana.

Here is an Supreme Court Order filed earlier this week, Nov. 3, 2009, in In the Matter of Anthony J. Wallingford. Some quotes:

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state without automatic reinstatement, effective October 24, 2008. Respondent may seek reinstatement two years after the effective date of his suspension or the date he successfully completes his term of criminal probation, whichever is later, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). * * *

All Justices concur, except Dickson, J., who dissents.
Dickson, Justice, dissents, and would reject the Conditional Agreement, believing that the Respondent, by engaging in conduct resulting in his felony conviction, has demonstrated his unfitness to responsibly represent, advise, and serve future clients.

[More] The Legal Profession Blog, a member of the Law Professor Blogs Network, posted an entry on the Wallingford order yesterday. Access it here. Here is the comment I posted, objecting to the lack of attribution to the LCJ quote.

Posted by Marcia Oddi on November 6, 2009 08:07 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court decides one yesterday

The case is Enhanced Telecommunications v. Ind. Dept Revenue. In a 15-page opinion, Judge Fisher writes:

Enhanced Telecommunications Corp. (ETC) challenges the Department of State Revenue's (Department) imposition of Indiana's utility receipts tax (URT) on certain monies it received during the years ending December 31, 2003, December 31, 2004, and December 31, 2005 (the years at issue). The issues for the Court to decide are: I. Whether money ETC collected from its customers in “subscriber line charges” and “federal universal service contribution recoveries” is subject to the URT; and II. Whether distributions ETC received through various federal and state subsidy programs are subject to the URT. * * *

For the foregoing reasons, the Department has erroneously subjected ETC's SLCs, FUSCRs, and distributions to the URT. The Department's final determination in the matter is therefore REVERSED.

Posted by Marcia Oddi on November 6, 2009 08:01 AM
Posted to Ind. Tax Ct. Decisions

Courts - "If Chicago cop caught you with LIDAR, go to court: Judge will dismiss it "

The Chicago Sun-Times column today, by Mark Brown, is headed: "How to beat a speeding ticket: If city cop caught you with LIDAR, go to court: Judge will dismiss it." Some quotes:

It was with some fanfare that the Chicago Police Department announced three years ago that all city police districts were being supplied with high-tech LIDAR speed detectors to help crack down on speeders on neighborhood streets.

What nobody has bothered to make public, however, is that for at least the past year, speeding tickets produced by Chicago police officers using LIDAR have been routinely dismissed in Cook County Traffic Court for any defendant bothering to show up to contest the case.

The tickets are being voluntarily waived by the city's Law Department because of legal challenges to the laser technology underlying the LIDAR (light detection and ranging) equipment.

The city began taking the approach after Traffic Court judges started ruling in favor of defense attorneys who contend local prosecutors must hold a special hearing to prove the scientific basis behind LIDAR before using it as evidence.

This has not kept the city from continuing to accept the guilty pleas -- and cash the checks -- from the vast majority of accused speeders who dispose of their tickets by just mailing in the fine or going to traffic school.

For those who go to court, on the other hand, it's simply a matter of waiting for their name to be called and the judge to hand them back their driver's license, no questions asked and little if any explanation given.

"This is a LIDAR case," an assistant Corporation Counsel told Judge George Scully Jr. one day last week as the next defendant's name was called. With that, Scully pulled the driver's license from the ticket to which it was stapled and returned the license to the defendant, sending her on her way. * * *

Some defendants had hired the hallway lawyers who hang around Traffic Court to represent them, not realizing they were receiving the same outcome as those who didn't have a lawyer, except they had to pay the lawyer.

"Hey, I make a living off this stuff," one lawyer told me when I brought it up.

He said he deserves to continue to make money from such clients because he "invented" the defense now being used to squelch all the LIDAR cases -- by citing a Downstate appellate court opinion that was the first to call for a scientific review of the LIDAR technology.

That case actually involved a Naperville lawyer, Michael Canulli, who was driving with his family to a girls' softball tournament in Springfield nine years ago when he was ticketed on I-55 near Lincoln, where State Police had sprung a massive speed trap. Incensed by their tactics, Canulli took the case to court. Now he's cited as the basis for beating every LIDAR ticket in Chicago, which is fine by him. * * *

ndeed, there seems little known basis for questioning the reliability of LIDAR. Nobody has been able to cite for me any jurisdiction where the technology has been shown deficient. But the city hasn't gotten around to putting on its own legal case, known as a Frye hearing.

A Law Department spokesman said one of the problems is that -- in the cases where it has called a defendant's bluff and agreed to a Frye hearing -- the defendant gives up rather than put up a huge legal fight over a little speeding ticket.

Posted by Marcia Oddi on November 6, 2009 07:35 AM
Posted to Courts in general

Courts - "Rethinking Prosecutorial Immunity"

The Supreme Court oral argument Nov. 4th in the case of Pottawattamie County v. McGhee, the subject of this ILB entry from Nov. 4, is the focus of this interesting "Argument Recap" by Erin Miller of SCOTUSBlog, dated Nov. 5th. A sample:

Justice Stevens depicted the petitioners’ view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the petitioners, agreed it “seems a little odd.” The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it. Two hypotheticals Justices Ginsburg and Kennedy posed to Stephen Sanders – also arguing for the prosecutors – zeroed in on that strangeness: Could a policeman be held liable for fabricating evidence? Or could a prosecutor from another case? Sanders was forced to admit that both the policeman and the second prosecutor could be held liable, though the prosecutor of the case himself could not.

Posted by Marcia Oddi on November 6, 2009 07:25 AM
Posted to Courts in general

Thursday, November 05, 2009

Law - "Shudder speed: Rise of the stealthy traffic camera fuels drivers' disgust"

Adding to a by now long list of ILB entries on red-light cameras, Neely Tucker reports in the Washington Post in a very long story today. A sample:

There's something that doesn't smell right about these tickets, but you're not quite sure what.

Is it the huge profits the government and their cohorts, the camera manufacturers, make on them? The District doubling the number of tickets it issued just two years ago, raking in $36 million last fiscal year? The fact that Redflex, one of the big manufacturers of these cameras, posted a 48 percent jump in revenue last year while the rest of the economy tanked?

People get worked up. Put these cyborgs on a ballot, and the voters beat them to the pavement.

Three cities Tuesday -- two in Ohio, one in Texas -- voted to rip the things down. In College Station, Tex., the camera manufacturer and their subcontractors reportedly spent $60,000 campaigning to keep them in place, more than five times the amount raised by the opposition, and lost anyway. Voters in Chillicothe, Ohio, went against the cameras at a rate of 72 percent. In Heath, Ohio, the mayor got caught removing anti-camera campaign signs from an intersection. He, and the cameras, got sent packing.

"I'm ecstatic," Jim Ash, the guy in College Station who led the anti-camera campaign.

Nationwide, there have been something like 11 elections on automated enforcement. Your vote total: Revolting Peasants 11, Machines 0.

Yet the cameras multiply like something out of science fiction, like that robot Mr. Smith in a sequel to "The Matrix," like the red weed in "War of the Worlds."

A handful of cities used them a decade ago. Now they're in more than 400, spread across two dozen states. Montgomery County started out with 18 cameras in 2007. Now it has 119. Maryland just took the program statewide last month, and Prince George's is putting up 50. The District started out with a few red light cameras in 1999; now they send out as many automated tickets each year as they have residents, about 580,000.

"They make too much money for cities to just stop using them," says Joe Scott, a D.C. entrepreneur who has developed Phantomalert, a downloadable software for GPS units and an app for smart phones that is updated by subscribers who spot new cameras sprouting up. He started it a few years ago by logging in a couple of hundred cameras in the D.C. region. Subscribers have since uploaded 200,000 more. It's like "Terminator," humans against machines.

Posted by Marcia Oddi on November 5, 2009 12:22 PM
Posted to General Law Related

Courts - More on: "Prosecutors in Manhattan — aware that the legal clock for bringing a case was running out — devised the novel strategy of indicting the rapist’s DNA"

Updating this Oct. 19th ILB entry, this issue is now before the California Supreme Court, according to a story today by Mike McKee of The Recorder. Some quotes from the story about Tuesday's oral arguments:

At issue in People v. Robinson , S158528, is whether an unknown suspect's DNA profile -- as opposed to a physical description -- can satisfy the so-called particularity requirement for issuing a "John Doe" warrant, and whether such warrants toll the statute of limitations for bringing criminal charges.

A third issue is whether the unlawful collection of a blood sample violates the Fourth Amendment's protection against unreasonable searches and seizures.

[Cara] DeVito represented Paul Robinson, an alleged serial rapist found guilty of an August 1994 assault on a Sacramento woman who wasn't sure of his race and had only a vague physical description.

Four days before the six-year statute of limitations for filing charges expired on Aug. 25, 2000, prosecutors filed a "John Doe" complaint describing the then-unknown defendant from a DNA profile developed from semen at the assault site. The next day, an arrest warrant was issued, tied to the DNA profile.

The warrant for Robinson's arrest was executed three weeks later based on a match from the state's DNA databank.

The defense argued that a DNA profile lacked the statutory requirement that a warrant contain "sufficient descriptive material" -- such as race, height, body build -- to indicate "with reasonable particularity" the identification of the proposed arrestee.

Sacramento County Superior Court Judge Peter Mering disagreed, as did Sacramento's 3rd District Court of Appeal in 2007.

The California Supreme Court appears headed for a similar outcome, with most of the justices, particularly Carol Corrigan, Ming Chin and Marvin Baxter, seemingly OK with a warrant based on a DNA profile.

Posted by Marcia Oddi on November 5, 2009 12:15 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

In Re the Marriage of K.H. v. J.L.H. (NFP) - "Mother has not shown that the evidence positively requires the opposite conclusion reached by the trial court. The custody order is not clearly erroneous. Affirmed."

Dale Albert Christ v. Susan Maginn Christ (NFP) - "We do not believe that Dale violated any order of the trial court, ambiguous or not, by the mere act of pre-registering the children at a school other than that set out in the parties’ agreement and the trial court’s order. The act of pre-registering the children did not interfere in any way with where the children would attend school and did not prevent them from attending Harrison Parkway Elementary as provided for in the order. It merely had the effect of providing an option to the parties. Nothing in the parties’ agreement or the trial court’s order prohibited Dale from pre-registering the children in another school in order to allow an option if the parties changed their minds. We therefore conclude that the trial court abused its discretion when it found Dale to be in contempt. Reversed."

Edward R. Hall v. Allied Waste Services, Inc. (NFP) - Interesting facts in this NFP 2-1 opinion by Judge Barnes that concludes:

While we express no opinion as to the enforceability of evergreen provisions in general, under the circumstances of this case, Hall's arguments fail. The consent decree did not make the automatic renewal provision of the contract between Hall and Allied Waste unenforceable. The small claims court did not err by enforcing the contract and ordering Hall to pay liquidated damages based on the contract. We affirm.

NAJAM, J., concurs.
KIRSCH, J., dissents without opinion.

NFP criminal opinions today (3):

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

Maurice Patterson v. State of Indiana (NFP)

Eddie J. Richardson v. State of Indiana (NFP)

Posted by Marcia Oddi on November 5, 2009 11:59 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion, and one interesting copyright decision

The Indiana case is U.S. v. Kevin R. Schhultz (ND Ind., CJ Miller), a 9-page opinion. Judge Bauer writes:

Kevin Schultz was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, he challenges his conviction. We affirm.

On February 25, 2005, Schultz pleaded guilty to one count of trafficking in counterfeit telecommunications instruments, in violation of 18 U.S.C. § 1029(a)(7), an offense punishable by fine and/or imprisonment not to exceed ten years. Schultz was sentenced to two years probation, with the first six months to be served on home detention.

On December 7, 2007, pursuant to a search warrant, federal agents searched Schultz’s residence and found a 12-gauge Remington shotgun and ammunition in the attached garage. Thereafter, a two-count indictment was filed against him: Count One for violating 18 U.S.C. § 922(g), which makes it unlawful for one convicted of a crime punishable of a term exceeding one year to possess a firearm (“felon-in-possession”); and Count Two for making a false statement regarding his ownership of the shotgun, in violation of 18 U.S.C. § 1001.

Schultz filed a motion to dismiss the indictment and a motion to suppress both the shotgun and his statements; the district court denied both motions. Thereafter, a bench trial was held on stipulated facts for Count One; and the government moved to dismiss Count Two. The district court found Schultz guilty and sentenced him to eighteen months of imprisonment, to be followed by three years of supervised release.

The coyright case is Schrock v. Learning Curve International (ND Ill.), a 27-page opinion by Judge Sykes that begins:

HIT Entertainment (“HIT”) owns the copyright to the popular “Thomas & Friends” train characters, and it licensed Learning Curve International (“Learning Curve”) to make toy figures of its characters. Learning Curve in turn hired Daniel Schrock, a professional photographer, to take pictures of the toys for promotional materials. Learning Curve used Schrock’s services on a regular basis for about four years and thereafter continued to use some of his photographs in its advertising and on product packaging. After Learning Curve stopped giving him work, Schrock registered his photos for copyright protection and sued Learning Curve and HIT for infringement.

The district court granted summary judgment for the defendants, holding that Schrock has no copyright in the photos. The court classified the photos as “derivative works” under the Copyright Act—derivative, that is, of the “Thomas & Friends” characters, for which HIT owns the copyright—and held that Schrock needed permission from Learning Curve (HIT’s licensee) not only to make the photographs but also to copyright them. Because Schrock had permission to make but not permission to copyright the photos, the court dismissed his claim for copyright infringement.

We reverse. We assume for purposes of this decision that the district court correctly classified Schrock’s photographs as derivative works. It does not follow, however, that Schrock needed authorization from Learning Curve to copyright the photos. As long as he was authorized to make the photos (he was), he owned the copyright in the photos to the extent of their incremental original expression. In requiring permission to make and permission to copyright the photos, the district court relied on language in Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983), suggesting that both are required for copyright in a derivative work. We have more recently explained, however, that copyright in a derivative work arises by operation of law—not through authority from the owner of the copyright in the underlying work— although the parties may alter this default rule by agreement. See Liu v. Price Waterhouse LLP, 302 F.3d 749, 755 (7th Cir. 2002). Schrock created the photos with permission and therefore owned the copyright to the photos provided they satisfied the other requirements for copyright and the parties did not contract around the default rule.

We also take this opportunity to clarify another aspect of Gracen that is prone to misapplication.

Posted by Marcia Oddi on November 5, 2009 11:44 AM
Posted to Ind. (7th Cir.) Decisions

Courts - In Pennsylvania, "Women begin to dominate state appellate courts"

That is the headline to this story today, reported by Debra Erdley, in the Pittsburgh Tribune-Review. Here is a quote from the middle of the story:

In a state where outraged voters ousted a Supreme Court justice four years ago amid anger over a legislative and judicial pay raise, Orie Melvin repeatedly told voters she returned her raise to the state Treasury every month for the past four years.

"Voters in the Keystone State understand the pay raise and understand that the high bench was involved in engineering it," DiSarro said. He said it was a populist issue that tapped into lingering voter resentments, as well as the voter anger evidenced in so-called Tea Party rallies this year.

Political scientist and pollster Chris Borick of Muhlenberg College said repeated wins for women on statewide courts, where female candidates took four or five appellate court positions in 2007, suggests gender could be a factor to some voters.

"It seems like there's more than just happenstance. When women voters don't have a lot of other prompts to affect their decision, gender might be a key factor," Borick said. But he noted the court election results are an anomaly in a state that has never elected a female governor or U.S. senator and usually ranks among the lowest in the nation in terms of female legislators.

Posted by Marcia Oddi on November 5, 2009 11:03 AM
Posted to Courts in general

Courts - Sex offender laws before several courts

Nov. 2nd ILB entry discussed recent decisions of the Indiana and Kentucky Supreme Courts relating to the ex post facto impact of sex offender residency restriction laws.

In California, this Nov. 4th story by Bob Egelko of the San Francisco Chronicle reports:

The California Supreme Court appeared to be searching for a middle ground Tuesday in a dispute over whether thousands of formerly imprisoned sex offenders must live at least 2,000 feet from parks and schools, a voter-approved restriction that would exclude them from most of the state's urban areas. * * *

A state lawyer argued that Proposition 83, a November 2006 initiative, imposed the residency restriction on all 65,000 registered sex offenders in California and subjected them to prosecution for violations.

An attorney for four paroled offenders, two from the Bay Area, said the restrictions covered, at most, only those who committed sex crimes after Prop. 83 passed - and made little sense even for that group. * * *

The state says about 6,800 registered sex offenders are now on parole. Nine months after Prop. 83 passed, parole officers began ordering them to leave their homes if they lived less than 2,000 feet from a park or school, and arresting them for parole violations if they stayed.

Under those rules, "San Francisco is one big exclusion zone," Galvan said. Because authorities have refused to let parolees move to other counties, he said, their only choices are homelessness or prison.

Baxter noted, however, that Galvan's four clients had all been paroled before Prop. 83 passed, and would not be subject to the residency restrictions if the court interpreted the measure to cover only post-November 2006 parolees. That was the most logical interpretation of the measure, said Baxter, generally the court's most conservative justice.

But Mennemeier said the state's ballot pamphlet, which included arguments by Prop. 83 supporters to create "predator-free zones" around schools and parks, showed that voters intended to apply the limits to all registered sex offenders.

Justice Joyce Kennard appeared skeptical, noting that ex-offenders who were barred from living near parks or schools "can still mingle out there."

Galvan's attempt to limit Prop. 83 to those who committed sex crimes after its passage was questioned by Baxter and Justice Carol Corrigan, who appeared willing to apply the restrictions at least to those who were imprisoned for sex crimes in November 2006.

James Nash of the Columbus Ohio Dispatch reports today in a story that begins:

Thousands of registered sex offenders would be subject to less-stringent reporting requirements if defense lawyers succeed in challenging parts of a 2007 state law intended to crack down on sexual criminals.

The attorneys told the Ohio Supreme Court yesterday that the get-tough law was applied illegally to more than 26,000 sex offenders who were sentenced before it took effect.

In addition, the lawyers said, the measure penalizes people who commit sex offenses before they turn 18 by requiring them to continue to register as sex offenders well into adulthood.

The state's highest court heard four cases yesterday challenging Senate Bill 10, which created a new system for classifying sex offenders based more on the severity of the crime than the likelihood of committing future offenses.

More than half of the offenders were placed in the most-serious category -- sexual predators -- who are required to register every 90 days for life.

Posted by Marcia Oddi on November 5, 2009 10:48 AM
Posted to Courts in general

Ind. Gov't - Still more on: "State no longer holds all cards"

On Sept. 13th Niki Kelly of the Fort Wayne Journal Gazette had a lengthy story on what l noted in this ILB entry:

looks to be an interstate "gambling race," oddly paralleling the intercontinental nuclear arms races during the cold war, but with no way out.

Kelly's story began:

Sixteen years ago, Indiana ventured into casino gambling for the first time, banking on the idea that riverboats in border communities would spur economic development and fill tax coffers.

But now, surrounding states are catching up. Ohio will have horse tracks with video slots next year, and Michigan is adding tribal casinos.

This entry the next day quoted from a NY Times story that in turned quoted from a new report:

The data shows that states take a real chance in depending on gambling because this revenue is not likely to keep pace with growing budgetary needs,” said Lucy Dadayan, a senior analyst at the Nelson A. Rockefeller Institute of Government at the State University at Albany, which will release a report on the subject next week.

The 20-page report is now out, it is available here, titled "For the First Time, a Smaller Jackpot: Trends in State Revenues from Gambling."

Yesterday, Lesley Stedman Weidenbener and Tom Loftus of the Louisville Courier Journal had a long story headlined "Ohio casino vote stirs sense of urgency in Kentucky, Indiana." Some quotes:

Top officials in Kentucky and Indiana urged quick action Wednesday to protect their states’ interests in response to Tuesday’s decision by Ohio voters to authorize casino gambling.

Kentucky Gov. Steve Beshear joined horse racing leaders in pushing lawmakers to move quickly to expand gambling, now that casino construction can move ahead in Cincinnati and three other Ohio cities. * * *

In Indiana, which could lose $100 million in tax revenue to new Ohio casinos, Senate Appropriations Committee Chairman Luke Kenley said the Ohio vote increases the urgency for Hoosier lawmakers to bolster the state’s casino industry and shield the taxes it generates.

“It will push us,” said Kenley, R-Noblesville. “The state gets a little over $800 million in taxes from casinos and local governments get $300 million. There’s going to be a desire to protect that revenue stream.”

The Hoosier gambling industry wants tax breaks to help expand, build new amenities or bolster promotions in advance of the projected 2012 opening date of the new downtown Cincinnati casino.

The new Ohio gambling venues — one each in Cincinnati, Columbus, Cleveland and Toledo — will be the state’s first foray into casinos, although the issue has been debated there for years. The proposed constitutional amendment — approved 53 percent to 47 percent — marked the fifth time that Ohio voters have considered gambling.

The Ohio legislature now has six months to pass casino development legislation. Groundbreaking is expected to begin in about a year, and barring major problems the four casinos could open in 2012. * * *

In Indiana, the new Cincinnati casino is expected to take a significant bite out of business at three Ohio River casinos: Hollywood at Lawrenceburg, Grand Victoria at Rising Sun and Belterra near Vevay.

A study by the Indiana Legislative Services Agency predicts the three southeastern Indiana casinos could lose as many as 38 percent of their customers and as much as $260 million of their $680 million in annual wagering revenue to the operations in Cincinnati and Columbus.

In all, Indiana could lose $100 million in annual tax revenue to the Ohio casinos — about one-ninth of its annual take from 13 casinos.

“It’s a big, big chunk of the tax dollars that Indiana receives,” said Ernest Yelton, executive director of the Indiana Gaming Commission.

Indiana legislators already have been studying how best to protect the state’s wagering tax revenue and help the casinos weather competition not just from Ohio, but from planned or proposed new gambling venues in Michigan and Illinois.

Casino owners have urged a number of possible options, including new tax breaks and the elimination of rules that force many of the casinos to be located on water.

“We have to make sure the state gives us all the tools we need to be competitive,” said Mike Smith, executive director of the Casino Association of Indiana.

Lawmakers should strive to help Indiana’s casinos become regional destinations with amenities including spas, golf courses and high-end restaurants and shops, Smith said. That can be achieved through tax breaks that encourage national gambling companies to invest their capital in Indiana rather than other states, he said.

Kenley said the challenge will be determining how to help casinos facing significant out-of-state competition while not harming other in-state gambling operations.

"High stakes for Indiana casinos: The state's gaming industry must adapt quickly to a new reality: competition from Ohio," is the heading to Bill Ruthhart's long story today in the Indianapolis Star. It begins:

Ohio voters' decision Tuesday to legalize casinos will hit Indiana where it hurts: the wallet.

Four Hoosier casinos could lose nearly $300 million a year from the added Ohio competition. The state stands to lose as much as $103 million in taxes, and the communities that will lose gambling visitors already are preparing for smaller budgets and belt-tightening.

"I was really hoping this wouldn't pass in Ohio," said Bill Marksberry, mayor of Rising Sun, the small southeastern Indiana city where the Grand Victoria Casino is located. "We're going to have to buckle down and do whatever we can to keep people coming here."

The forecasts aren't encouraging.

A study of casinos in Indiana by the state's Legislative Services Agency predicts that three casinos in southeastern Indiana -- Grand Victoria Casino, Belterra Casino near Vevay and Hollywood Casino in Lawrenceburg -- will lose 30 percent to 38 percent of their customers, resulting in a total revenue loss of $202 million to $260 million a year.

Anderson's Hoosier Park Racing & Casino would lose 14 percent of its customers and $28 million a year in revenue, according to the projections.

"There is definitely reason for concern," said Ernie Yelton, executive director of the Indiana Gaming Commission, which regulates casinos.

"If there's any silver lining here, it's that there's time to adjust."

It will be at least 2012 before any of the Ohio casinos would open on their downtown parcels in Cincinnati, Cleveland, Columbus and Toledo. Indiana's casino operators said that time should be used by state lawmakers to approve measures -- such as land-based casinos and tax breaks -- that would allow them to become more competitive.

"I'd say everything is on the table right now," said Sen. Luke Kenley, R-Noblesville, a key fiscal leader who serves as chairman of a gambling study committee.

"In my mind, what's happened in Ohio creates a sense of urgency."

Here is the 24-page Oct. 19, 2009 LSA report mentioned in the two stories: "Estimates of the Fiscal Impacts from Out-of-State Casino Competition and Movement of Casino Licenses in Indiana."

Posted by Marcia Oddi on November 5, 2009 10:22 AM
Posted to Indiana Government

Ind. Decisions - Still more re "Inmates' sexual romps not a crime"

Lisa Trigg reports in the Terre Haute Tribune Star:

TERRE HAUTE — A security-improving project in the Vigo County Security Center is solving a design flaw that had allowed some jail inmates to crawl through the ceiling to visit other cells.

Eight pods in the 7-year-old addition to the original jail are getting sturdier ceiling panels to prevent excursions by inmates. And best of all, according to county officials, the updates are costing the county zero dollars.

A negotiated settlement with the original architect is covering the $500,000 cost of the project, Sheriff Jon Marvel said.

“The ceiling system in those cells was inadequate,” Marvel said during a recent tour of the facility. “That’s obvious due to problems we have had.”

He explained that inmates in a top bunk could kick upward against the perforated metal ceiling panels, bending them and stripping out screws that held the ceiling system together. Once a panel could be lifted far enough, a person could slip through the gap and roam around in the crawl space above the cells.

The same type of ceiling was installed at a jail in Lake County, Marvel said, and that ceiling system also failed.

This is not the same jail as was involved in the Oct. 7th Court of Appeals decision - that was the Greene County Jail - see this Oct. 8th ILB entry.

Posted by Marcia Oddi on November 5, 2009 10:10 AM
Posted to Ind. App.Ct. Decisions

Courts - Update on Judge David Hamlton's nomination to 7th Circuit

A long analysis by Larry Margasak of the AP is published by the Washington Post today. Some quotes:

WASHINGTON -- Ten months into Barack Obama's presidency, Democrats are accusing Republicans of creating "a dark mark on the Senate" by delaying confirmation of his federal court nominees. * * *

It's primarily two federal judges - one from Indiana, the other Maryland - who've been waiting five months for Senate Majority Leader Harry Reid, D-Nev., to bring their nominations for appeals court promotions to the Senate floor. * * *

"It would be wrong for us to be a rubber stamp for each nominee," Alabama Sen. Jeff Sessions, the senior Republican on the Judiciary Committee, said in a recent confirmation dustup in the Senate. * * *

The Republican stall at this point is focused on two appellate court judges whose nominations were sent by the Judiciary Committee to the full Senate on June 4:

- David Hamilton of Indiana, a U.S. district judge and nephew of former Democratic Congressman Lee Hamilton, chosen for the Chicago-based appeals court. Reid said he wants a vote on Hamilton by Veterans Day. He'll probably need a super majority of 60 to get one.

- Andre Davis, a district judge in Maryland, nominated for a seat on the appellate court headquartered in Richmond, Va.

Sessions made it clear his party will put up a fight against confirming either. He cited Hamilton's position in the late 1980s as a vice president for litigation and board member of the Indiana chapter of the American Civil Liberties Union. Sessions also complained about Hamilton's judicial rulings.

"Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced this empathy standard, this feeling standard. Whatever that is, it is not law. It is not a legal standard," Sessions said. * * *

"Most of the nominees ... will go through in an expeditious manner," Sessions said.

Okay, now take a look at this editorial in the Washington Times. The headline: "Jesus, no, but yes to Allah: Another immoderate judge nominated by Obama." It begins:

Senate Democrats are proving once again that no judicial nominee is too extreme for them to stomach. A move seems to be afoot to open debate on the Senate floor this week on the nomination of David Hamilton of Indiana to the 7th Circuit U.S. Court of Appeals. This judge is a radical's radical.

Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, sent a letter on Friday to his fellow senators outlining his objections to Mr. Hamilton, who is a federal district judge.

The editorial continues with an outline of Senator Sessions' objections.

Posted by Marcia Oddi on November 5, 2009 08:42 AM
Posted to Courts in general

Ind. Courts - Interesting disciplinary decision filed Nov. 3rd by the Supreme Court

Although they are public documents and are all available online here at "Orders and Opinions Regarding Final Resolution in Attorney Disciplinary Cases," the ILB doesn't often write about individual rulings unless they are of general interest.

This one, In the Matter of Daniel E. Moore, meets that criterion. For Respondent's professional misconduct, the Supreme Court here agrees to a Public Reprimand proposed by the Indiana Supreme Court Disciplinary Commission and Respondent. From the Order:

Stipulated Facts: In May 2004, Respondent was retained by a client ("Client") to represent her in a dissolution of marriage action. Client paid Respondent $15,000 pursuant to an agreement that this would be his total "flat" or "fixed" fee. By letter dated June 16, 2004, Respondent told Client: "My office agrees to accept your case in consideration of the payment of our minimum non-refundable retainer fee in the amount of $15,000 . . . ."

Respondent diligently and competently worked on Client's case. In May 2005, Respondent requested Client pay him an additional $5,000, which Client paid. In April 2006, Respondent requested Client pay him an additional $1,500, which Client paid in two installments. In neither instance did Respondent advise Client to consult with independent counsel before agreeing to amend the fee agreement to his advantage.

Respondent has no prior disciplinary history, he was cooperative with the Commission, he is remorseful, and he has served as a volunteer in various community and legal organizations. The parties agree there are no facts in aggravation.

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

• 1.5(a) (2004): Charging an unreasonable fee.
  
• 1.8(a)(2) (2005): Entering into business transactions with a client (amendments of a fee agreement) unless the client is advised in writing of the desirability of seeking, and is given reasonable opportunity to seek, advice from independent counsel.

All the justices concur, except for Justice Dickson:

Dickson, J., dissents and would reject the agreement, believing a period of suspension is in order in the absence of any showing that Respondent refunded the fees received above his initial quote of $15,000 for a "flat" or "fixed" fee.

Posted by Marcia Oddi on November 5, 2009 07:59 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "But for luck, lawmaker Ed Delaney says, attacker would have killed him

Mary Beth Schneider today has a lengthy interview with Indianapolis attorney and legislator Ed DeLaney, victim of an attack last Saturday morning (earlier stories here). Here are a few quotes, don't miss reading the entire story:

[L]ast weekend, Augustus Mendenhall sought out DeLaney, who speaks Russian. The lawmaker said Mendenhall -- using a fake name -- asked for his legal help on a potential real estate deal for Russian investors.

On Saturday, DeLaney picked up Mendenhall from a church parking lot and drove a short distance to look at the property, on Catherine Drive near 131st Street in Carmel.

There, DeLaney said, Mendenhall reached into a large zippered bag, ostensibly to get a retainer check DeLaney already had declined. He pulled out a gun, wrapped in a plastic bag.

"I thought that I was in a lot of trouble, and I didn't know why," DeLaney said. "He asked me if I was right with God, and I said, 'That's between me and him or her.' "

Then, he said, Mendenhall asked him if he'd ever hurt anyone in a lawsuit.

"I explained a little bit why I didn't think so," DeLaney said.

As DeLaney talked, he said, "the whole time" he fully expected to die.

The gun was aimed at his head, and then his attacker appeared to pull the trigger.

DeLaney saw later that it had jammed, but at that moment, all he knew was that his attacker was having trouble grappling with the gun through the plastic bag.

"I said goodbye or whatever to my Lord. I whispered goodbye to my wife. I was afraid I was dead. I said, 'OK, you're dead. If you've got any chance of coming back . . . you'd better go for the gun.' So I went for the gun."

Posted by Marcia Oddi on November 5, 2009 07:36 AM
Posted to Indiana Law

Wednesday, November 04, 2009

Courts - Former Indiana University administrator and "non-traditional" law student argues before SCOTUS as a Meyer Brown associate [Updated again]

Here is the story, from the Chicago Law blog. It begins:

Fourth-year associates at big law firms rarely find themselves making an argument before the U.S. Supreme Court. But that's where Steve Sanders of Mayer Brown was Wednesday morning.

He represents Pottawattamie County, Iowa, and two former county attorneys who are trying to protect their prosecutorial immunity. The issue is whether proescutors can be held liable for wrongful conviction for allegedly procuring false testimony against criminal defendants. For a full recap of the case, Pottawattamie County v. McGhee, click here.

I caught up with Sanders a few days ago to chat about how he came to appear before the high court and how he was preparing for the biggest moment in his legal career so far. (Full disclosure: Sanders was an intern at the Chicago Tribune several years ago. I did not know this before I talked to him.)

Here's some highlights from our conversation:

Chicago Law: Hi, Steve. Tell me about yourself?

Sanders: Law is a second career for me. I went to Indiana University and ended up working in the administration there. I left in 2002 and went to law school at the University of Michigan. I started at Mayer in October 2006.

I found my age (he's 46) to be an enormous asset in law school. It made me more focused. Once I got to a law firm, I also had some sense of how to understand how a place works. When I was a summer at Mayer Brown, I knew what I wanted to do (he does appellate litigation) and I built relationships with partners who have that kind of work.

Re the case itself, here is Nina Totenberg's NPR Morning Edition report. It began:

Do prosecutors have total immunity from lawsuits for anything they do, including framing someone for murder? That is the question the justices of the Supreme Court face Wednesday.

On one side of the case being argued are Iowa prosecutors who contend "there is no freestanding right not to be framed." They are backed by the Obama administration, 28 states and every major prosecutors organization in the country.

On the other side are two black men — Terry Harrington and Curtis McGhee — men who served 25 years in prison before evidence long hidden in police files resulted in them being freed.

The State of Indiana joined an amicus brief supporting the prosecutors. It is currently #2 on this list.

[More] Here is Nina Totenberg's post-argument report, from this evening's NPR's All Things Considered.

[Updated 11/5/09] For much more on the oral argument and the issues, see this entry from the WSJ Law Blog.

How Appealing collects many of the news reports here. (Headlines include "When Is It Legal To Frame A Man For Murder?")

[Updated 11/6/09] Here is a long post-argument piece headed "A Mayer Brown Associate’s Supreme Court Debut: A Post-Argument Recap," from David Lat of Above the Law.

Posted by Marcia Oddi on November 4, 2009 03:44 PM
Posted to Courts in general

Ind. Courts - Disciplinary Commission Executive Secretary Donald R. Lundberg resigns effective Jan.1, 2010 to join Barnes and Thornburg

Here is the announcement, which begins:

The Indiana Supreme Court Disciplinary Commission Executive Secretary Donald R. Lundberg will resign as head of the agency that investigates and prosecutes alleged attorney misconduct effective January 1, 2010. Chief Justice Randall T. Shepard announced Lundberg’s departure and congratulated him on his new position with an Indianapolis law firm, "Don Lundberg's service over these last two decades as Indiana's chief of lawyer ethics has exemplified the very best in splendid leadership and committed public service. All of us have learned a great deal from his thoughtful stewardship of the profession's values. He's done much to help Indiana lawyers and judges do our best for the clients and citizens who rely on us for navigating the legal system."

Mr. Lundberg has been the Executive Secretary of the Indiana Supreme Court Disciplinary Commission since December of 1991. He is leaving the position to join Barnes and Thornburg LLP as a partner and deputy general counsel to the firm.

Posted by Marcia Oddi on November 4, 2009 03:38 PM
Posted to Indiana Courts

Ind. Law - IU-Law Indianapolis Professor Mary Harter Mitchell has died

From a message sent by Dean Gary Roberts earlier today:

Professor Mary Mitchell passed away early this morning from liver failure. This is shocking and devastating. Mary was a beloved member of our family who will be missed in ways that cannot be described. Our hearts, thoughts, and prayers are certainly with Mary’s husband Frank and her daughters Sally and Clara. I am sure there is more I should say but I’m too shaken to know what it is. We will keep everyone informed about services and other events that will take place in celebration of Mary’s life as we learn of them.

From the IU Alliance of Distinguished and Title Professors website:

Mary H. Mitchell, Alan H. Cohen Professor of Law, Indiana University, Indianapolis

Professor Mary Harter Mitchell has been teaching at the Indiana University School of Law at Indianapolis for 25 years.

She grew up in Anderson, Indiana, and received her B.A. from Butler University in Indianapolis, where she was Butler's Most Outstanding Female Student, editor of the literary magazine, and involved in many activities. She then earned her J.D. from the Cornell Law School, where she won the Fraser Prize, served as Editor on the Cornell Law Review, and published her student Note. She taught for two years at the I.U. Law School in Bloomington before moving to the Indianapolis law school.

Professor Mitchell regularly teaches first-year Contracts, a seminar on the Law and Religion, and Prison Law. She also teaches Law and Literature and a Seminar on Law and Rape. She has taught Family Law, Seminar on Law and Education, Seminar on Contracts, Law and the Elderly, and Legal Research and Writing. She has won teaching awards at the law school and served on almost every committee in the school. She has published in the area of law and the elderly and law and religion. She is working to develop courses and programming related to prison law, prison reform, and prisoners' rights. She is also participating in development of a new course on Women and Law.

Professor Mitchell is also a published poet, a Quaker peace activist, and a feminist, with special interest in the intersections of law with literature, peace, women's issues, American studies, religion, and legal reform. She has been active in many community organizations and has taught Practical Peace-making at Peace House in Indianapolis. She takes a special interest in encouraging law students to remain whole persons in law school and in their careers.

Here is Professor Mitchell's faculty profile.

Posted by Marcia Oddi on November 4, 2009 12:45 PM
Posted to Indiana Law

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

For publication opinions today (2):

In Robin Lovitt v. State of Indiana , a 10-page opinion, Judge Mathias writes:

Concluding that the trial court acted within its discretion when it excluded the testimony of Lovitt’s witness, but that his Class D felony maintaining a common nuisance conviction is not supported by the evidence, we affirm in part, reverse in part and remand. * * *

However, the broader question is the intent of the statute as a whole. Zanders v. State, 800 N.E.2d 942, 944 (Ind. Ct. App. 2003). We believe that the statute is intended to apply to an offender who uses his or her vehicle to facilitate manufacture, sale, delivery or to finance the delivery of a controlled substance, not to an offender who has personal use quantities of controlled substance(s) on his or her person or even loose in the vehicle. To hold otherwise would make every drug arrest after a traffic stop subject to an additional charge of maintaining a common nuisance. We do not believe this to be the intent of our General Assembly.

In Michael Jackson v. State of Indiana (NFP), a 6-page opinion, issue #1 is: "Whether the trial court erred and violated Jackson’s right to a fair trial when it ordered that Jackson was not permitted to take copies of the jurors’ questionnaires with him to jail." Judge Najam concludes:

In sum, Jackson does not explain what use he would have made of the jurors’ questionnaires had he had access to them prior to trial. He has not demonstrated that the trial court’s order is in conflict with Jury Rule 10 or the discovery rules. And Jackson has not shown that he suffered any prejudice or was denied a fair trial as a result of the trial court’s order. * * *

KIRSCH, J., concurs in result in Part I, without separate opinion, and concurs in Parts II and III.
BARNES, J., concurs.

[ILB note] Of related interest here are two ILB entries that appear to be right on point, from March 25th and March 26th, 2009.

NFP civil opinions today (2):

Annette Baker v. Heartland Food Corporation (NFP) - "Whether the herniation was caused by her work-related activity or was due to an underlying condition, as Heartland alleged, has not been resolved by the evidence. Without any such evidence, we cannot say that the Board erred when it determined that her injury was not sustained by accident arising out of and in the course of her employment. Affirmed."

In Clayton C. Miller v. City of Indianapolis, et al. (NFP), a 16-page opinion involving a zoning variance in an Indianapolis historic neighborhood, Judge Friedlander writes:

This case involves the grant of a zoning use variance in favor of Larry Jones and Teagen Investments II, LLC (collectively, Jones) by the Indianapolis Historic Preservation Commission (the Commission) for property located at 901 North East Street (the Real Estate) in the historic residential neighborhood of Chatham-Arch near downtown Indianapolis. Clayton C. Miller, one of the remonstrators below and a homeowner whose property adjoins the Real Estate, appeals the grant of the use variance, which was affirmed by the trial court. We affirm.

Although the Real Estate is zoned D-10 for residential use, it has not been put to such a use since at least 1971. Rather, a forty-bed nursing home was built on the Real Estate by a former owner in 1971, pursuant to a zoning use variance issued that same year. * * *

The Chatham-Arch neighborhood, however, is not exclusively residential and has a number of non-contributing structures, several of which are on East Street along the western boundary of the neighborhood. While the CAMA Plan offers a site-specific recommendation for redevelopment on the Real Estate, as well as recommendations for other non-contributing structures, the plan specifically provides that such recommendations “are meant to guide, not mandate, and are to be used as tools in developing actions and strategies for future decisions.” * * *

It is clear from the record before us that the Commission carefully considered the proposed variance. The Commission‟s decision to grant the variance was neither arbitrary, capricious, nor an abuse of discretion.

NFP criminal opinions today (2):

Quaterris Franklin v. State of Indiana (NFP)

Michael C. Trimble v. State of Indiana (NFP)

Posted by Marcia Oddi on November 4, 2009 11:45 AM
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Anthony Hampton (SD Ind., Judge Tinder), a 22-page opinion, Judge Williams writes:

A series of 911 calls reporting shots fired in broad daylight led police officers to a busy area in Indianapolis to arrest the gunman. One caller fingered the occupants of a white sports utility vehicle (“SUV”), which carried defendant Anthony Hampton. When officers stopped Hampton and the driver, they recovered two guns. After applying enhancements be cause of Hampton’s previous felony convictions, the court sentenced him to 387 months’ imprisonment. We affirm Hampton’s conviction because we conclude that the officers had reasonable suspicion to stop the SUV in which Hampton was riding and that there was sufficient evidence to show that Hampton constructively or actually possessed the gun. As to his sentence, although we agree with the district court that a conviction for residential entry in Indiana qualifies as a “violent felony” for the purposes of the Armed Career Criminal Act (“ACCA”), we conclude that Hampton’s prior conviction for criminal recklessness in Indiana does not qualify, and therefore, Hampton must be resentenced.

Posted by Marcia Oddi on November 4, 2009 10:23 AM
Posted to Ind. (7th Cir.) Decisions

Law - "Missing Georgia Lawyer and Her Husband Are Declared Dead" [Updated]

This is pretty scary (especially in light of recent news here in Indiana). From the ABA Journal Blog:

A Savannah lawyer and her husband have been declared dead by a Georgia judge, more than a year after they disappeared after a meeting with a bookkeeper they suspected of stealing from them.

A memorial service for Elizabeth Calvert, 45, and her husband John, 47, is planned later this month following the ruling late last month by a DeKalb County judge, reports the Island Packet. Elizabeth Calvert practiced as a tax attorney at HunterMacLean in Savannah.

The individual the couple suspected of stealing from them, Dennis Ray Gerwing, 54, was considered a person of interest in their March 2008 disappearance. He committed suicide approximately one week after the Calverts' disappearance.

Another story, this one from Indiana's 6 News, headed "Judge Says He Found Man Beating Woman In Court."

SPENCER, Ind. -- A judge told police he heard a commotion coming from his central Indiana courtroom and rushed inside to find a man beating up a woman.

Police said Mark Winders, 31, and the woman were at the Owen County Courthouse for a child custody hearing and were alone in the courtroom when the attack happened Thursday.

A police report indicated that Winders kicked the woman several times and then stomped on her face after she fell to the floor before Judge Frank Nardi approached them.

Winders was being held in the Owen County Jail on domestic battery charges and a drug possession charge after guards reported finding he had a small amount of marijuana.

No word on how the prisoner ended up alone in the courtroom with the woman.

Posted by Marcia Oddi on November 4, 2009 10:16 AM
Posted to General Law Related

Courts - Still more on "Cancer Patients Challenge the Patenting of a Gene"

On May 13, 2009 the ILB posted an entry quoting from a NY Times story by John Schwartz about "a lawsuit against Myriad and the Patent Office, challenging the decision to grant a patent on a gene to Myriad and companies like it." More from the story:

The lawsuit, believed to be the first of its kind, was organized by the American Civil Liberties Union and filed in federal court in New York. It blends patent law, medical science, breast cancer activism and an unusual civil liberties argument in ways that could make it a landmark case. * * *

Dr. Chung and others involved with the suit do not accuse Myriad of being a poor steward of the information concerning the two genes at issue in the suit, known as BRCA1 and BRCA2, but they argue that BRCA testing would improve if market forces were allowed to work.

Harry Ostrer, director of the human genetics program at the New York University School of Medicine and a plaintiff in the case, said that many laboratories could perform the BRCA tests faster than Myriad, and for less money than the more than $3,000 the company charged.

Laboratories like his, he said, could focus on the mysteries still unsolved in gene variants. But if he tried to offer such services today, he said, he would be risking a patent infringement lawsuit from Myriad.

This ILB entry from May 15th included links to the complaint.

Yesterday David Kravets of Wired's "Threat Level" had a long story headed "Judge OKs Challenge to Human-Gene Patents." Some quotes:

A federal judge ruled Monday that a lawsuit can move forward against the Patent and Trademark Office and the research company that was awarded exclusive rights to human genes known to detect early signs of breast and ovarian cancer.

The first-of-its-kind lawsuit by the American Civil Liberties Union and the Public Patent Foundation at the Benjamin Cardozo School of Law claims that the patents violate free speech by restricting research.

U.S. District Judge Robert W. Sweet of New York, in ruling that the case may proceed to trial, noted that the litigation might open the door to challenges of a host of other patented genes. About one-fifth of the human genome is covered under patent applications and claims.

The story includes a link to the 88-page opinion in Ass'n. for Molecular Pathology et al. v. U.S. Patent & Trademark Office, et al. (SD NY). (Here also is the complaint.)

Posted by Marcia Oddi on November 4, 2009 09:53 AM
Posted to Courts in general

Courts - "Flipping off Illinois judge gets homeless man new digs -- jail"

Carolyn Rusin reports in the Chicago Tribune:

A homeless McHenry County man in trouble with the law will have a roof over his head for the next six months after making an obscene gesture to the judge who was trying to decide how high to set his bail.

"He flipped off the judge," said McHenry County State's Attorney Lou Bianchi. "I think he's got a serious anger-management problem." * * *

The hearing had already gotten off to a bad start, when Zopp asked if Kellet had an attorney. Kellet uttered a four-letter response that was even less polite than the bird.

Assistant State's Attorney Patrick Kenneally suggested that Zopp wash out Kellet's mouth with a contempt citation -- and six months in jail. The judge obliged.

"It's our position to uphold that those appearing before a judge be very respectful," Bianchi said. "I hope this sends a message."

Posted by Marcia Oddi on November 4, 2009 09:25 AM
Posted to Courts in general

Environment - More on: "Indiana participates in Dana cleanup with $2 million stock distribution"

An interesting side-note to this Oct. 13th ILB entry - WLKI 100.3 News had this item yesterday, headed "City Council Sets Dana Stocks Parameters For Future Sale":

(ANGOLA) - The Angola City Council decided on Monday night to sell half of the over 262,000 shares of Dana stock the city is getting if the price drops to $4 a share. The city would sell the other half of the shares if the price continued to drop to $3.

The state of Indiana will get about $2 million in stock from Dana Corporation to help pay for the clean up of the former Dana-Weatherhead site in Angola.

The Indiana Department of Enviromental Management got about 300,000 shares of stock from the reorganized Dana Corporation. IDEM transfered 50,000 shares to Univertical with the rest going to the city of Angola.

The stock is intended to reimburse the city and Univertical for their contributions towards the enviromental clean up.

The Dana stock price has gone up in recent months thanks to the Wall Street rally after it had been as low as 19 cents a share. It's currently selling at about $5.50.

Angola Mayor Dick Hickman said he was not worried about setting a high end parameter at this time.

Posted by Marcia Oddi on November 4, 2009 08:27 AM
Posted to Environment

Courts - State of Indiana co-authors amicus brief in Melendez-Diaz challenge

From a press release issued yesterday:

INDIANAPOLIS -- Following a landmark U.S. Supreme Court decision in June that abruptly required crime-lab analysts to start testifying at criminal trials, Indiana Attorney General Greg Zoeller’s office has co-authored a friend-of-the court brief asking that the decision be limited or even overturned.

The Supreme Court’s ruling in last term’s Melendez-Diaz v. Massachusetts case potentially requires prosecutors to call lab analysts as witnesses in every case where crime-lab reports are relevant, rather than simply introduce the certified report at trial as prosecutors have done in the past. Such an interpretation of the Sixth Amendment right to confront witnesses threatens to increase laboratory-testing backlogs and needlessly imperil criminal prosecutions, Zoeller said.

“Left unchecked, the Melendez-Diaz precedent would give defense attorneys limitless opportunities to game the system and create procedural excuses for suppressing the evidence against their clients, when in fact there is usually no dispute over the lab evidence itself. The burden to taxpayers in manpower and lost productivity for lab technicians to travel constantly to courthouses to testify would be enormous,” Zoeller said.

This term, the U.S. Supreme Court will consider another case, Briscoe v. Virginia, questioning whether states can place reasonable restrictions on defendants demanding lab analysts testify in person when prosecutors use lab reports as evidence.

In the Briscoe case, Zoeller’s office has co-authored a friend-of-the-court brief – called an ‘amicus curiae’ brief in legal terminology – submitted to the Supreme Court, arguing defendants should have to give advance notice to the prosecution if they intend to put a crime-lab technician on the witness stand. Alternatively, the brief asks the Supreme Court to overturn its recent 5-4 Melendez-Diaz decision before it becomes too deeply engrained in the U.S. legal system.

“Criminal trials in the real world are not like ‘CSI’ or ‘Law & Order,’” Zoeller said. “Crime-lab analysts are not witnesses to the actual crime. In Indiana, only two laboratories handle forensic testing for the entire state and have only 24 drug chemists between them. They should not have to testify in every one of the 13,900 drug cases they received last year. If the Melendez-Diaz precedent remains in place, the backlog of cases to be tested will only worsen and many drug charges will get dismissed because the analyst is not available to testify. This can only serve as a detriment to the judicial system and the public’s safety.”

Intended to support the Commonwealth of Virginia’s position in the Briscoe case, the friend-of-the-court brief filed Monday was co-authored by the Attorney General’s offices of Indiana and Massachusetts and signed by the attorneys general of 24 other states and the District of Columbia. Drafting the brief were Indiana Solicitor General Thomas M. Fisher and Indiana deputy attorneys general Stephen Creason, Heather Hagan and Ashley Tatman. The brief borrows from an amicus brief authored by Alabama and joined by Indiana in last term’s Melendez-Diaz case. Alabama joined Indiana’s brief in the Briscoe case.

“We zealously support the Sixth Amendment protection that all defendants have the constitutional right to confront and cross-examine witnesses. But no right is absolute; and we are hopeful once the U.S. Supreme Court sees the havoc Melendez-Diaz has unleashed on the criminal justice system, that it will limit its ruling – to the benefit of crime victims and law enforcement,” Zoeller said.

Zoeller added that his office authors or co-authors amicus briefs on issues of legal and public-policy importance and signs onto others authored by other state attorneys general to send a united message in cases heard before the U.S. Supreme Court.

Here is the 58-page brief, submitted by:

THE STATES OF INDIANA, MASSACHUSETTS, ALABAMA, ARIZONA, COLORADO, CONNECTICUT, DELAWARE, FLORIDA, IDAHO, IOWA, KANSAS, MARYLAND, MICHIGAN, MINNESOTA, NEW JERSEY, NEW MEXICO, NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, WASHINGTON, WISCONSIN, WYOMING AND THE DISTRICT OF COLUMBIA AS AMICI CURIAE IN SUPPORT OF RESPONDENT

Here is an ILB entry from July 15th, headed "Impact of the crime lab testimony decision," and one from July 1st, headed "Is Melendez-Diaz already endangered?"

In addition, our Supreme Court has acted on several Melendez-related challenges. See this ILB entry from Sept. 29th, headed, "'Supreme Court upholds conviction of South Bend molester'; some comments on Melendez-Diaz' application in Indiana" for background.

Briscoe is set for argument Monday, Jan. 11, 2010. Here is the ScotusBlog Wiki page.

Posted by Marcia Oddi on November 4, 2009 08:02 AM
Posted to Courts in general | Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Ind. Gov't. - Dispute about lowering twp. trustee salary in northern Indiana township

The Kankakee Valley Post-News (Newton-Jasper counties) had a story last week by Cindy Ward headed "Board president tries to reduce trustee's salary." From the story:

This summer Keener Township Advisory Board President John Boissy said at a township meeting that he wanted to do some workshops, one hour Saturday workshops to go over things, meet with the chief and go over EMS issues, no decisions would be made, they would simply get together for informational workshop sessions.

Then at a Saturday meeting Aug. 22, Boissy and board member Bill Recker met, as Keener Township Trustee Diana Haberlin was going to be out of town and board member Al Ooms was going to a funeral and could not make it. The two men met and made a salary resolution to lower the township trustee's salary from $21,000 to $16,000. The trustee is challenging whether or not the meeting was legal and whether or not the board can reduce her salary.

Boissy believes Haberlin is getting paid too much for the work that she is actually doing, especially if she's not in charge of EMS. Boissy expects a ruling from the Indiana Attorney General by November as to who is in charge of EMS. On at least two different occasions, during the squabble of who is in charge, when answers from governmental agencies that the trustee was in charge, weren't good enough for Boissy, an attorney was hired by Haberlin to give legal advice as to who is in charge of EMS. And on both occasions the lawyer also said the trustee is in charge of EMS. * * *

Boissy says the salary reduction meeting was legal because it was advertised properly and he did not have to state what the meeting was going to be about, or what actions would be taken at the meeting. * * *

The township is riddle with strife. * * *

The township meetings are excessively burdened with the recitations of IC codes, statutes, and haggling over interpretations, legal opinions and definitions. After being peppered with IC codes, the trustee gathers opinions from the Indiana Public Access Councilor, The State Board of Accounts, the Department of Local Government Finance and other governmental agencies. Boissy has yet to be satisfied with the written answers received from those sources, or from the hired legal attorney specializing in local government.

The Indiana codes can be confusing. The following is the full text of the Indiana Code dealing with the trustee's salary. Boissy says section (c) give him the power to reduce the trustee's salary. But at the Oct. 19 budget meeting Haberlin read a letter from the Indiana Public Access Councilor that explained that special meeting notification must include written 48 hour notice to board members and 48 hour notice at the meeting place which must include the subject to be discussed or action to be taken. Haberlin also had a letter from the Indiana Township Association that stated the board can not reduce the trustee's salary with out her consent. Boissy says the salary resolution meeting was not a special meeting and the township association is only a lobby group and dismissed both opinions. Haberlin said she had also spoken to the state board of accounts and they said he can not lower her salary. Boissy told Haberlin to get it in writing.

The story includes the complete text of IC 36-6-6-10 and a link to the PAC's Oct. 13th opinion.

Posted by Marcia Oddi on November 4, 2009 07:44 AM
Posted to Indiana Government

Tuesday, November 03, 2009

Ind. Courts - "Calif. High Court Reflects on Brief Policy"; What About Indiana?

That first clause is the heading to this story today by by Mike McKee of The Recorder, whose report begins:

Hoping to avoid a potential copyright fight, the California Supreme Court might soon stop shipping copies of attorneys' briefs to Westlaw and LexisNexis and, instead, post them online for all takers.

"It's still a work in progress, but it's something I'm giving my attention to," Beth Jay, principal attorney to Chief Justice Ronald George, said Thursday. "We're looking to be in a neutral position, providing information to the public."

The Supreme Court was called on the carpet in July when Irvine lawyer Edmond Connor wrote to complain about the court's practice of providing copies of the legal briefs attorneys file with the state's six appellate courts to legal publishers, which, in turn, make them available to the public for a charge.

"The briefs provided to the Supreme Court," the Connor, Fletcher & Williams partner wrote, "are valuable public resources which should be used for the public good, not given away to large corporations to enable them to reap sizable profits."

What about Indiana? See this April 30, 2005 ILB entry, which includes the following:

On April 14th David C. Lewis, Clerk of the Supreme and Appeals Courts, issued a press release announcing "Indiana Appellate Briefs Now Available Online through Westlaw." Some quotes:

Westlaw subscribers have several options for adding this service to their current subscriptions. Individuals who are not Westlaw subscribers may access the service with a credit card, paying on a per-use basis. * * *

"West's online briefs project takes us another step closer to providing the public with greater access to court records," said Clerk David Lewis. "We applaud West's commitment to this project. Not only does it provide Indiana's attorneys with a significant new tool, but it promotes our office's goal of openness and accountability in the judicial system." [ILB - emphasis added]

ILB - I'm not out to burn any bridges here, but I just don't think so. I think promoting West's project to sell the briefs makes it unlikely that they will ever be available online to the public at no cost.

Who, other than the parties in the case (who already are on the distribution list) might be interested in reading Indiana appellate briefs, if they were freely available?

• People (scholars, students, attorneys interested in keeping up in an area, the interested public) who watch the oral arguments online would benefit greatly from being able first to review the briefs, and the lower court's opinion.
  
• People who are interested in a contentious case, such as the recent same-sex marriage case before the Court of Appeals, and the post-Blakely/Booker cases before the the Court of Appeals and Supreme Courts, who need ready access to ALL the documents -- here we are talking about dozens of briefs.
  
• People who read a decision and want to read the parties' arguments, and people who want to see a cross-section of arguments made, and cases cited, about a particular issue.

In short, the same people who read the courts' opinions and listen to oral arguments on the Court's public website should be able to access the briefs there. Is is disappointing that they can't.

Nearly 5 years have passed since that decision was made.

Posted by Marcia Oddi on November 3, 2009 03:29 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Kohlmeyer v. Second Injury Fund, a 7-page, 5-0 decision, Justice Dickson writes:

Indiana's statutory worker's compensation scheme enables certain totally disabled work-ers who have exhausted the maximum benefits from their employers to seek additional compen-sation from the Second Injury Fund. The principal disputes in this case are (1) whether a work-er's Social Security Act disability benefits are includable in calculating whether the worker quali-fies to access the Second Injury Fund, and (2) whether the language in the award stipulation of the worker and his employer, which was approved by the Worker's Compensation Board, is binding upon the Board as to the worker's right to access benefits from the Second Injury Fund. * * *

Although the Indiana Worker's Compensation Act does not direct that a worker's receipt of Social Security Act benefits be included in determining his eligibility for Second Injury Fund compensation, the Worker's Compensation Board's express approval of the parties' stipulation in this case operates to establish that the worker, James Kohlmeyer, was permanently and totally disabled from work related injuries and that he met the maximum benefits prerequisite for Second Injury Fund eligibility. The Order of the Full Worker's Compensation Board, affirming the Single Hearing Member's decision, is hereby reversed.

Posted by Marcia Oddi on November 3, 2009 01:33 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court sets Dec. 11, 2009 as execution date for Matthew Eric Wrinkles [Updated]

Updating this ILB entry from August 13, 2008, headed "7th Circuit rules in Indiana case where defendant wore stun-belt throughout trial," the Indiana Supreme Court today issued a 12-page, 4-1 order titled "Order concerning successive petition for post-conviction relief" in Wrinkles' case, plus an "Order setting date for execution of death sentence."

The Evansville Courier & Press has posted the two documents, plus a story:

The Indiana Supreme Court today set an execution date for Eric Wrinkles, the Evansville man convicted in the 1994 slayings of his estranged wife and two relatives.

Wrinkles will be executed before sunrise the morning of Dec. 11, according to an order filed today.

The Indiana Attorney General's Office notified the state Supreme Court in May that Wrinkles' federal appeals were exhausted when the U.S. Supreme Court on May 18 declined to hear his case.

Before setting the date, the Indiana Supreme Court first considered an additional appeal from Wrinkles regarding a 2002 opinion in which it ruled a stun belt he wore during his trial did not bias jurors.

That order, written by Indiana Chief Justice Randall T. Shepard, states that Wrinkles did not "meet his burden of establishing a reasonable possibility that he is entitled to post-conviction relief." It leaves open the possibility for petitioning for rehearing, but says it should "not be sought if Wrinkles intends merely to raise the same arguments (the court) has already addressed."

[Updated Nov. 4, 2009] Here is an updated version of the C&S story, reported by Seth Grundhoefer.

Posted by Marcia Oddi on November 3, 2009 01:21 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Laws - "Lawmaker to push texting-driving ban"

Following up on this earlier ILB today on texting, Niki Kelly of the Fort Wayne Journal Gazette has a report that begins:

INDIANAPOLIS – An area lawmaker hopes to outlaw texting while driving for all Hoosiers during the 2010 legislative session.

Sen. Travis Holdman, R-Markle, sponsored legislation this year that prohibits the practice for teen drivers. [SEA 16] Now he wants to take the next step and ban texting and e-mailing while driving for all drivers.

“A driver’s crash risk doubles when attention is taken off the road for two or more seconds,” Holdman said. “An increasing number of people are texting and e-mailing while driving, which diverts their attention away from the road and endangers other motorists, passengers and pedestrians. This legislation will save lives.”

He filed the bill, which would call for a fine if the ban is violated, last week. Legislators will be in session Jan. 5.

Indiana would join 18 other states and the District of Columbia in banning motorists from texting while driving.

Posted by Marcia Oddi on November 3, 2009 12:15 PM
Posted to Indiana Law

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

For publication opinions today (2):

In Larry D. Smith v. State of Indiana , a 6-page, 2-1 opinion, Judge Barnes writes:

Larry Smith appeals his conviction for Class C felony sexual misconduct with a minor. We affirm.

Smith raises one issue, which we restate as whether there is sufficient evidence to support his conviction for sexual misconduct with a minor. * * *

The repeated touching and the location of the touches combined with the viewing of pornographic images is sufficient evidence from which the jury could infer Smith’s intent. We affirm.

NAJAM, J., concurs.
KIRSCH, J., dissents with opinion. [which concludes] In the absence of legitimate inference, we can only speculate as to what Smith’s intention was. I do not believe that speculation can constitute proof beyond a reasonable doubt. Accordingly, I respectfully dissent.

In Dustin Neff v. State of Indiana , an 18-page opinion, Judge Barnes writes:

I. General suifficiency of the evidence. * * * The State in this case clearly could have more precisely alleged that the child solicitation occurred on April 29, 2006, as well as or even instead of May 2, 2006. Nevertheless, the precise date of the alleged solicitation is not of “the essence of the offense” of child solicitation, nor was Neff misled into believing that the State would not present or rely upon evidence related to the April 29, 2006 chat. As such, there was no fatal variance between the charging information and proof at trial with respect to the precise dates upon which Neff solicited “Lizzy.”

II. Venue. Neff also contends the State failed to prove that proper venue existed in Hamilton County, since all of the IM chats occurred between him at his computer in Madison County and Bedard, who was in Georgia. The State contends that Neff's traveling to Hamilton County, in accordance with his and “Lizzy's” plans, establishes venue there. A defendant has a constitutional and statutory right to be tried in the county in which an offense allegedly was committed. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). * * *

For all these reasons, we conclude the State failed to present sufficient evidence that proper venue for Neff's prosecution lay in Hamilton County. Madison County is the only county in Indiana where venue would be proper. Having reached that conclusion, we turn to the question of whether Neff can be retried in Madison County for this offense if the prosecutor in that county so chooses. Neither party addressed this question in their briefs, but we did explore the issue at oral argument and we must address it. * * *

We also conclude that permitting retrial of a defendant in the proper county after the State failed to prove venue in another county is consistent with double jeopardy jurisprudence. * * *

The question here, then, is whether our reversal of Neff's conviction due to improper venue is an acquittal based upon insufficient evidence or a reversal based on legal error for double jeopardy purposes. We conclude it is the latter. * * * The State's failure here to prove venue in Hamilton County was not a failure to prove an element of the offense and “implies nothing” with respect to Neff's guilt or innocence. See Burks, 437 U.S. at 15, 98 S. Ct. at 2149. As such, we conclude Neff may be retried in Madison County. * * *

Conclusion. There is sufficient evidence that Neff committed Class C felony child solicitation. However, there is insufficient evidence that he committed that crime in Hamilton County. We reverse his conviction because of improper venue and remand with directions that this case be transferred to Madison County for further proceedings consistent with this opinion.

NFP civil opinions today (2):

Calvin Lawson v. State of Indiana (NFP)

In the Matter of The Commitment of R.R. v. Branigan Sub-Acute Unit of Adult & Child Mental Health Center, Inc. (NFP)

NFP criminal opinions today (2):

Daniel Reed v. State of Indiana (NFP)

Shiloh Macon v. State of Indiana (NFP)

Posted by Marcia Oddi on November 3, 2009 11:33 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: " First, Annex Books, now New Albany DVD"

Updating this ILB entry from Sept. 10th, Harold J. Adams reports today in the Louisville Courier Journal:

The City of New Albany must decide whether to keep fighting following another loss in its long-running battle to shut down an adult bookstore.

The 7th U.S. Circuit Court of Appeals last week denied the city’s request that the full court reconsider a September ruling by a three-judge panel blocking the city from closing New Albany DVD.

The panel’s ruling upheld a U.S. District Court injunction that allowed the store at 601 W. Main Street to remain open to sell sexually explicit movies and books.

Ten of the 11 judges on the Chicago-based appeals court participated in considering the city’s petition for rehearing and voted against it, the court said. The eleventh judge did not participate.

Steven Mason, the attorney representing New Albany DVD, said Monday that for the city, “The significance is that they don’t really have anywhere to go.” * * *

The city’s options include an appeal to the U.S. Supreme Court or taking up the 7th Circuit panel’s challenge to go back to district court to prove the city’s claim that adult bookstores attract thieves and create a problem of pornographic litter.

The appeals panel said no such evidence was presented at the district court level in a 2004 lawsuit filed by the bookstore against a newly-passed city ordinance that ordered the store to close.

U.S. District Judge Sarah Evans Barker granted an injunction against enforcement of the ordinance in January 2005, based on doubts about its constitutionality, and ordered that New Albany DVD be allowed to open.

The 7th Circuit panel upheld the city’s ordinance but kept the injunction against enforcement in place pending a district court hearing on any evidence the city can produce to back up its claims of harmful effects produced by the business.

Posted by Marcia Oddi on November 3, 2009 10:54 AM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Ind. Courts - 7th Circuit decides one Indiana case today

In U.S. v. Tyrone Vaughn (ND Indd., CJ Miller), a 15-page opinion, Judge Rovner writes:

A jury convicted Tyrone Vaughn of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Vaughn contends that the evidence was insufficient to support his conviction for possession of a firearm in furtherance of a drug trafficking crime. He also contests the district court’s determination on sentencing of the amount of drugs he dealt, arguing that his own uncorroborated statement to police officers following his arrest is insufficient to establish the amount of drugs he bought and sold. We affirm.

Posted by Marcia Oddi on November 3, 2009 10:48 AM
Posted to Ind. (7th Cir.) Decisions

Courts - Oral argument today before the SCOTUS in RICO case in which many states have an interest

According to this entry today in SCOTUSBlog, the SCOTUS today is hearing the following case:

1 p.m. – In Hemi Group, LLC v. City of New York (08-969), the issue is whether a city government can use a civil RICO lawsuit to collect cigarette taxes.

According to our list "Filed State Amicus Briefs 2009 AG Zoeller", the State of Indiana authored a merits brief in this case. According to this SCOTUSBlog entry by Brian Goldman:

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

Here is the amicus brief authored by the Indiana Attorney General and joined by the following states: Alabama, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, New Jersey, New Mexico, Ohio, Pennsylvania, South Carolina, Utah, West Virginia, and Wyoming.

Posted by Marcia Oddi on November 3, 2009 10:36 AM
Posted to Courts in general

Ind. Decisions - More on: Upcoming oral arguments this week and next

The ILB's weekly "Upcoming Oral Arguments" entry, both this week and last, indicated that NO oral arguments had been posted by our Supreme Court for the month of November.

The ILB has just received, from the Court's press office, a list of the arguments set for the November sitting of the Court. Here are those set for next week, Thursday, Nov. 12 (these also will be included on next Monday's ILB list):

• 9:00 a.m. - Caesars Riverboat Casino. LLC v. Genevieve Kephart (31S01-0909-CV -303)

  Caesars filed an action against Kephart seeking repayment of a gambling debt, treble damages, and attorney fees. Kephart counterclaimed, alleging Caesars unjustly enriched itself by taking advantage of her pathological gambling addiction. The trial court denied Caesars' motion to dismiss Kephart's counterclaim. On interlocutory appeal, a divided panel of the Court of Appeals reversed, holding Kephart did not have a private cause of action against Caesars under these circumstances. Caesars Riverboat Casino, LLC v. Kephart, 903 N.E.2d 117 (Ind. Ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

• 9:45 a.m. - TRW Vehicle Safetv Systems, Inc. v. Sally J. Moore (73S05-0909-CV -404)

  The Estate of Daniel Moore filed a product liability negligence complaint against Ford Motor Company ("Ford") and TRW Vehicle Safety Systems, Inc. ("TRW"). The jury returned a verdict apportioning fault among Daniel Moore, Ford, TRW, and a nonparty, Goodyear, resulting in damage judgments against Ford and TRW. A majority of the Court of Appeals reversed the jury verdict based on the sufficiency of the evidence. Ford Motor Co. v. Moore, 905 N.E.2d 418 (Ind. Ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

• 10:30 a.m. - Indiana Patient's Compensation Fnnd v. Gary Patrick (49S02-0909-CV -402)

  The Marion Circuit Court entered a judgment allowing Patrick, the father of a patient who died as a result of medical malpractice, to collect from the Fund for damages under the Adult Wrongful Death Statute and for damages attributable to Patrick's own claim for negligent infliction of emotional distress under the "bystander rule." The Court of Appeals affirmed. Indiana Patient's Compensation Fund v. Patrick, 906 N.E.2d 194 (Ind. ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

Here is the list for the entire month of November.

Posted by Marcia Oddi on November 3, 2009 10:12 AM
Posted to Upcoming Oral Arguments

Ind. Courts - Still more on: "Indiana Supreme Court Suspends Judge Accused of Theft"

Updating this ILB entry from Oct. 29th, which quoted a story about the cost and inconvenience to the City of Bicknell as a result of the Oct. 14th suspension of its judge (no money coming in from fines, plus they have to continue to pay the salary of the suspended judge), the ILB has just received an Order of the Supreme Court, dated Nov. 2, appointing as judge pro tempore, Michael D. Edwards, effective Nov. 16th. From the Order:

This Order shall be sufficient authority for Judge Edwards to continue the employment of court personnel and otherwise discharge the duties of Judge of the Bicknell City Court. Judge Edwards shall be entitled to compensation for this service paid from the funds of the City of Bicknell at the same rate and on the same schedule as the present incumbent, commencing from the effective date of his appointment.

Posted by Marcia Oddi on November 3, 2009 09:45 AM
Posted to Indiana Courts

Courts - More on: Louisville paper gets it wrong re Kentucky AG "advising" the Corrections Department not to follow a recent state Supreme Court ruling; Implications

Yesterday the Louisville Courier Journal, at the behest of the Kentucky Attorney General, published a correction in its printed paper about an editorial it had run on Oct. 31st. But, as far as I can tell, it simply deleted the online version without any comment or explanation. See these ILB entries from Nov. 2nd and Oct. 31st for more.

For some commentary on similar situations, see this Oct. 30th entry by Jonathan H. Adler in The Volokh Conspiracy. The heading: "Revising Web-based Newspaper Articles Without Informing Readers — NYT Edition." Adler writes:

This is not the first time I’ve noticed the web site of a prominent news organization failing to disclose that it had edited the web-based version of a story after initial publication. . . . Is this now common practice? If so, it seems to be a major failing. Responsible bloggers routinely disclose anything more than the most minor stylistic and typographical revisions to published posts. I would think newspaper websites could do the same. Indeed, shouldn’t newspapers at least match the disclosure norms observed by bloggers? After all, they’re the real journalists.

And from a reader's comment on a comment:

Comment: Has it ever not been common practice? Even the dead tree versions of newspaper articles often change without notice between various editions or print runs. Why does this continue to surprise anyone? Should it really bother you?

Comment on the comment: That perhaps explains why it’s commonly done, but it doesn’t excuse it. When a dead-tree newspaper put out a new edition, the old one didn’t suddenly disappear, but that’s what happens with online newspapers, unless somebody just happens to preserve a copy. There’s no good reason that I can think of why online media shouldn’t archive all previous versions of an article, available from the article’s page. Wikipedia does that now.

Implications. The above may appear to be nit-picking, but think of the implications in the legal world. And these are not uncommon in most jurisdictions.

• Example 1: A court opinion may be posted online. Several days later some seemingly minor corrections are made. The corrected version is posted in place of the earlier version with no indication. So different people have different copies of the opinion, depending upon when they acquired them.

• Example 2. Various, often undated, directives of state agencies may be posted online, changed, replaced, with no indication.

Posted by Marcia Oddi on November 3, 2009 09:17 AM
Posted to Courts in general

Not Law - "Newsday Columnist Quits Over Paywall, Wants To Be Read"

TechDirt has an entry on the renewed effort of some newspapers to make their online stories pay-for-view that begins:

One of the reasons why the NY Times eventually did away with its old "paywall" was that its big name columnists started complaining that fewer and fewer people were reading them. We've suggested in the past that newspapers who decide to put up a paywall may find that their best reporters decide to go elsewhere, knowing that locking up their own content isn't a good thing in terms of career advancement. So, with Cablevision deciding to put Newday behind a paywall, it didn't take long for some of its columnists to start to bailing.

Posted by Marcia Oddi on November 3, 2009 09:05 AM
Posted to General News

Courts - Still more on: "Kentucky Supreme Court to hear online gambling case"

Updating this Oct. 23rd ILB entry, which quoted from a story on the oral argument that took place Oct. 22, here is an entry from the Kentucky Law Blog that links to a video of the oral argument, plus has links to the briefs filed in the case. Recall that this is the case where the Kentucky governor seized the internet domain names of 141 gambling entities in an effort to stop Kentucky citizens from gambling online.

Posted by Marcia Oddi on November 3, 2009 08:55 AM
Posted to Courts in general

Law - More on Ed DeLaney attack: $3 million bond set

Robert Annis has a report in today's Indianapolis Star about the arraignment of the accused attacker, Augustus Mendenhall.

Posted by Marcia Oddi on November 3, 2009 08:45 AM
Posted to Indiana Courts

Law - "Driven to Distraction: When Texting Kills, Britain Offers Path to Prison "

The NY Times had a long and moving, front-page story Sunday, by Elizabeth Rosenthal, about texting. "A 24-year-old fashion designer was killed near Oxford when [another young] woman who had just received a text message rear-ended her car at 60 miles an hour."

The story is accompanies by a number of items, including the United Kingdom Sentencing Guidelines Council guidelines on causing death by driving. A quote from the Times:

The independent council's guidelines for sentencing offenders over the age of 18 include the use of mobile devices and text messaging, and is classified under the "avoidable distractions" category. The sentencing guidelines recommend the punishment of imprisonment for texting while driving.

In addition, there is a link to the 6-page judgment of the appeals court. The issue was whether the sentence of 21 months imprisonment for "causing death by dangerous driving" was too lenient. The Lord Chief Justice ruled that it was lenient, but would not be disturbed.

Here are a few quotes from the story:

OXFORD, England — Inside the imposing British Crown Court here, Phillipa Curtis, 22, and her parents cried as she was remanded for 21 months to a high-security women’s prison, for killing someone much like herself. The victim was Victoria McBryde, an up-and-coming university-trained fashion designer.

Ms. Curtis had plowed her Peugeot into the rear end of Ms. McBryde’s neon yellow Fiat, which had broken down on the A40 Motorway, killing Ms. McBryde, 24, instantly.

The crash might once have been written off as a tragic accident. Ms. Curtis’s alcohol level was zero. But her phone, which had flown onto the road and was handed to the police by a witness, told a story that — under new British sentencing guidelines — would send its owner to jail.

In the hour before the crash, she had exchanged nearly two dozen messages with at least five friends, most concerning her encounter with a celebrity singer she had served at the restaurant where she worked.

They are filled with the mangled spellings and abbreviations that typify the new lingua franca of the young. “LOL did you sing to her?” a friend asks. Ms. Curtis replies by typing in an expletive and adding, “I sang the wrong song.” A last incoming message, never opened, came in seconds before the accident.

With that as evidence, Ms. Curtis was sentenced in February under 2008 British government directives that regard prolonged texting as a serious aggravating factor in “death by dangerous driving” — just like drinking — and generally recommend four to seven years in prison.

The case reveals the tensions that arise when law enforcement and the courts begin to crack down on a dangerous habit that has become widespread and socially acceptable. Is texting while driving bad judgment, or a heinous crime? And what is the appropriate punishment?

Upon hearing the sentence, prosecutors — backed by the police and Ms. McBryde’s mother — quickly appealed to Britain’s highest court for a longer prison term, calling 21 months “unduly lenient.”

“She came across as a lovely young girl, and I’m sure it wasn’t a nice feeling for the judge to send someone like this to prison — but someone is dead because of a text message,” said Bill Sykes, the officer who responded to the crash and led the subsequent investigation.

But many young people, among them the dead woman’s own siblings and friends, disagreed, sympathizing also with Phillipa Curtis. “I think Phillipa’s sentence was long enough, as she seemed like such a normal girl,” said Gemma Pancoust, the victim’s cousin and close friend, with whom she liked to sing karaoke to Dolly Parton’s “9 to 5.” “Until Tory’s death I texted while driving, as have most people. I don’t think she realized the danger she was causing.”

Indeed, the victim herself had sent a text message and talked on her cellphone (using the speaker function) while driving before her car broke down, according to the testimony of a friend with whom she had the 20-minute phone conversation. It is illegal in Britain to use a hand-held phone while driving, and drivers using hands-free phones may be fined if they are deemed not in control of the vehicle.

Although most European countries and a minority of American states now ban the use of hand-held cellphones while driving, Britain has become one of the more aggressive countries in attacking the problem, according to Ellen Townsend, policy director for the European Transit Safety Council, which advises the European Commission.

Britain’s new guidelines state that using a hand-held phone when causing a death will “always make the offense more serious” in terms of punishment and lead to prison time. Texting is given special treatment.

Ms. Curtis was found guilty and sent to prison even though she was not texting at the time of the accident, because the new guidelines regard “reading or composing text messages over a period of time” as “a gross avoidable distraction.” Its effect, British judges have ruled, may go beyond the moment of composing a message. Such behavior is categorized the same as driving while drunk or high on drugs, as well as racing another driver.

Posted by Marcia Oddi on November 3, 2009 08:22 AM
Posted to General Law Related

Ind. Courts - "Tippecanoe County Judge, Purdue professor take on problem-solving courts in book"

Sohia Voravong's story in the Lafayette Journal Courier Nov. 2nd began:

Becoming a registered voter, signing up for a library card, enrolling in substance abuse or mental health treatment-- those are just some of the requirements for participants in Tippecanoe County's re-entry court for recently released prisoners.

For some, the checklist of stipulations and strict monitoring were seen as overbearing, said former Tippecanoe Superior Court 1 Judge Don Johnson, who helped launch and presided over the intensive program.

But the rules proved successful in reducing the number of repeat offenders.

"Each week, they were held accountable. If they missed a meeting ... there were immediate repercussions if they did not show," Johnson said. "A lot of participants have commented that it's almost like a virtual prison. They're accountable for every moment of the day."

The re-entry program is one of three Tippecanoe County problem-solving courts addressed in "Problem Solving Courts: New Approaches to Criminal Justice." It was written by Johnson and JoAnn Miller, a sociology professor at Purdue University and associate dean for the College of Liberal Arts.

Johnson and Miller will be in Washington, D.C., this week to discuss the book and Tippecanoe County's successes and failures in helping prisoners better transition into the community.

They'll also be part of a panel discussion and book signing in mid-November in Indianapolis.

"In three years, we had only a handful of failures and -- at the time of this book -- 66 success stories," Miller said. "The focus is on the contributions that re-entry can make on a community, from the economy to the quality of life.

Check out the book here, via Amazon.

Posted by Marcia Oddi on November 3, 2009 08:13 AM
Posted to Indiana Courts

Ind. Courts - Court of Appeals visits Benton Central High School

Meranda Watling reports on a Court of Appeals oral argument held at Benton Central High School in Oxford, Indiana last week. The case was William E. Riley v. State of Indiana, listed in last week's upcoming COA oral arguments. From the Lafayette Journal Courier story:

Judges Patricia Riley of Rensselaer, Margret Robb of West Lafayette and Paul Mathias of Fort Wayne presided over an appeal on a case from Lake County. * * *

About 300 juniors and seniors attended the Benton Central hearing. So did a handful of local attorneys and Benton Circuit Court Judge Rex Kepner.

Audience questions ranged from how accurately the media portrays them -- not very, according to the judges -- to what the visiting judges thought of the school's neighboring windmills -- they were impressed.

Mathias said that although the job can be time consuming, eating as many as 50 to 60 hours a week, it's a privilege.

"Even though we do appeals ... 99.5 percent of the time (the decision on a case) stays the way the trial court resolved them," Mathias said.

"We take our job very seriously because we know the decisions we make change peoples lives."

Robb told the students that what they see on television and in movies is over-dramatized for entertainment purposes. Cases take years to solve, not 50 minutes. There isn't always DNA evidence. And when there is, results don't come back in five minutes.

"Sometimes, (the media) gives a false perception of what goes on," Robb said.

John Koehler, who teaches government and economics at the school, said the ability for his students to see state government action taking place live is a great supplement to their studies. He said often the curriculum in those courses focus on the national level.

"This is beneficial for our kids to see the state-level government like this actually functioning," Koehler said. "It takes court out of the entertainment world and the kids get the behind-the-scenes look."

Posted by Marcia Oddi on November 3, 2009 08:04 AM
Posted to Indiana Courts

Monday, November 02, 2009

Courts - Kentucky Supreme Court won't suspend sex offender ruling

The AP is reporting:

FRANKFORT, Ky. -- The Kentucky Supreme Court on Monday denied the state's request to suspend its recent ruling which loosened restrictions on where convicted sex offenders may live.

Attorney General Jack Conway last week asked the state's supreme court to delay implementation of the ruling while the decision was appealed to the U.S. Supreme Court. * * *

An order from the Kentucky court Monday says its ruling would remain in effect during an appeal to the U.S. Supreme Court.

Here is the story by Beth Musgrave of the Lexington Herald-Leader. It begins:

FRANKFORT—The Kentucky Supreme Court has denied a stay of an October ruling that allows sex offenders who were convicted before July 2006 to choose where they live without restrictions.

Kentucky probation and parole officers were enforcing restrictions despite the October ruling after Attorney General Jack Conway asked the Kentucky Supreme Court to suspend its ruling while he asks the U.S. Supreme Court to hear the case.

The Kentucky Department of Corrections made that decision on the advice of its own lawyers. [ILB - This was an issue re the LCJ editorial discussed in earlier ILB entries.]

On Monday, the state Supreme Court, in a one-paragraph order, denied Conway's request for a stay.

Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, said sex offenders who were convicted before July 2006 will no longer have to comply with those living restrictions.

Allison Martin, a spokeswoman for Conway, said the office will ask the U.S. Supreme Court to issue a stay.

"We will be filing a motion with the U.S. Supreme Court for a stay while it considers whether or not it will hear Kentucky's case," Martin said.

See this ILB entry from earlier today and this one from Oct. 31.

What about Indiana? In State of Indiana v. Anthony W. Pollard (6/30/09) our Supreme Court ruled:

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.

See this ILB entry from July 1st, plus this list of related entries. Re how the decision is being implemented in Indiana, see this entry from Oct. 14th, headed "Two Lafayette sex offenders told they can go home."

The story today reports the Kentucky attorney general now "will ask the U.S. Supreme Court to issue a stay."

Incidentally, the SCOTUS is already hearing a ND Indiana federal sex offender case - the appeal of the 7th Circuit's decision in Carr v. United States. The question is whether SORNA (the Sex Offender Registration and Notification Act) can be applied retroactively. For more, see this ILB entry from Sept. 30th and this one from Dec. 22, 2008.

Posted by Marcia Oddi on November 2, 2009 06:29 PM
Posted to Courts in general

Ind. Decisions - Transfer list for week ending October 30, 2009

Here is the Clerk's transfer list for the week ending October 30, 2009. It is four pages long.

Four transfers were granted last week. They are detailed in this ILB entry from earlier today
__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the Oct. 9, 2009 list.

Over 5 1/2 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on November 2, 2009 03:39 PM
Posted to Indiana Transfer Lists

Ind. Courts - Still more on "School sued for punishing teens over MySpace pix"

Updating this ILB entry from Oct. 31st (which includes a link to the complaint, posted by the ILB), and this ILB entry from Oct. 30th, ABC News now has a story by Sarah Netter, sub-headlined "ACLU Alleges Teen Athletes Were Unfairly Punished For Sexy Photos Taken on MySpace." A quote:

"I don't think this is a unique problem of trying to define that line as to where the school stops and where student expression begins," Indiana ACLU Legal Director Ken Falk, also the girls' attorney, told ABCNews.com today.

Posted by Marcia Oddi on November 2, 2009 03:31 PM
Posted to Indiana Courts

Ind. Law - More on "Some fear charter schools may become sports powers"

Updating this ILB entry from Oct. 23rd which quoted an Indianapolis Star story headlined "IHSAA rules that Butler recruit Chrishawn Hopkins is ineligible for senior season at Herron: Organization says Butler recruit transferred for athletic reasons; senior must wait 365 days after last game at Manual", the Star's Kyle Neddenriep reports this afternoon:

Chrishawn Hopkins will play his senior season of high school basketball after all.
The 6-1 Butler University recruit has transferred back to Manual High School and will be granted full athletic eligibility, Indiana High School Athletic Association commissioner Blake Ress said.

Hopkins had transferred to Herron, a Downtown charter school before his senior year, but was his transfer was deemed to be for athletic reasons by the IHSAA, making him ineligible for 365 days since his last game at Manual as a junior.

“We try not to make them ineligible everywhere,” Ress said. “So he had the option to [go] back to Manuel, where we thought he really belonged, and regain eligibility. There had been a hearing scheduled for an appeal, but I guess they decided against it.”

Posted by Marcia Oddi on November 2, 2009 01:59 PM
Posted to Indiana Law

Ind. Courts - Two 7th Circuit opinions pending before the SCOTUS

One was before The Court today,Jones v. Harris Associates. See this WSJ Law Blog entry headed "On Tap at the Supreme Court: Posner v. Easterbrook."

The second was just granted cert today, New Process Steel v. NLRB. USA Today's story is headed "High court to decide if two-person Labor Board legal" and begins:

WASHINGTON (AP) — The Supreme Court said Monday it will decide whether two people can do the work of five when it comes to resolving labor-management disputes in the workplace.

The National Labor Relations Board, which for decades has had the responsibility to police many of these disputes, has operated with only two members — and three vacancies — for more than a year. The reason for this is that Democrats who retook control of Congress in 2006 objected to President George W. Bush's labor policies, and thus refused to confirm his nominees.

But the two NLRB members still in place have continued to issue decisions, making about 400 in the last 16 months.

The U.S. Courts of Appeal have split on whether decisions made by only two members of the board are legal. The U.S. Court of Appeals in the District of Columbia said an NLRB decision handed down last year was invalid because it was made by just two members while the 7th U.S. Circuit Court of Appeals in Chicago took the opposite position.

It ruled that a vote by the two members was appropriate and binding.

Posted by Marcia Oddi on November 2, 2009 01:22 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Martha Nyatawa v. Corvee, Inc. (NFP) - In a per se appeal of a small claims decision: "It will come as small solace to Nyatawa that many share her frustration and confusion when it comes to matters of insurance. Moreover, we are no better equipped than the trial court professed to be to untie for her the Gordian knot that often results when more than one medical insurer is involved in questions of coverage for medical treatment. Be that as it may, Nyatawa has presented absolutely no basis on appeal for even questioning the trial court's judgment, much less reversing it."

Grange Mutual Casualty Company v. Betty Jean Rady (NFP) - "Quite simply, Grange designated uncontradicted evidence of a waiver of uninsured and underinsured coverage signed by Rady and uncontradicted evidence that the waiver referred to the Policy. Because Rady has failed to carry her burden to show that a genuine issue of material fact remains, we conclude that the trial court incorrectly denied Grange’s summary judgment motion. We remand with instructions to enter summary judgment in favor of Grange."

Term. of the Parent-Child Rel. of A.S.; L.P. v. Tippecanoe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (3):

Daniel A. Robinson v. State of Indiana (NFP)

Terry Smith v. State of Indiana (NFP)

Bobby D. Hawkins v. State of Indiana (NFP)

Posted by Marcia Oddi on November 2, 2009 12:55 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - Update on Ed DeLaney’s medical condition

The ILB has just received this statement re the condition of Indianapolis attorney and legislator Ed DeLaney:

Indianapolis, IN. – In lieu of the previously scheduled press availability, please accept this statement from Ann DeLaney, wife of Representative Ed DeLaney:

“We want to thank everyone for their huge outpouring of support for Ed, including Senator Bayh, Congressman Carson, Speaker Bauer, Senator Simpson, Mayor Ballard, and people around the state. We are so grateful for the strong support and expressions of

Ed is doing quite well considering the circumstances. Ed and I would like to thank the doctors and medical staff at Methodist hospital for their excellent care. He has five broken ribs and broken bones around his eye socket that will require surgery at a later date. He also has several abrasions and bruises.

“He is in a lot of pain, but his spirits are good. We are taking comfort in the prayers and expressions of our friends, family and well-wishers.”

This is good news in what has been a frightening incident for Ed's family and many friends.

Posted by Marcia Oddi on November 2, 2009 12:11 PM
Posted to General Law Related

Ind. Decisions - Four cases granted transfer Oct. 29

The Clerk's transfer list should be available later today. Meanwhile, the ILB has received notice that four transfers were granted Oct. 29th:

• Andrew King v. State of Indiana -- Cause No. 49A04-0810-CR-609 -- see this ILB summary from June 30th that included:

  [This is a] 27-page opinion by Judge Crone dealing with online child solicitation. The issues are set out as:

  I. Did the trial court abuse its discretion in admitting certain evidence? [ILB - The opinion discusses admission of internet evidence in depth here]

  II. Is impossibility a defense to the crime of attempted dissemination of matter harmful to minors?

  III. Did the State establish the corpus delicti of the crimes?

• Steven W. Everling v. State of Indiana -- Cause No. 48A05-0903-CR-153 -- This case is featured in this Aug. 21st ILB entry relating to a complaint against former Madison County Circuit Court Judge Fredrick Spencer.

• Lyn Leone v. Comm'r, BMV -- Cause No. 49A02-0804-CV-377 -- see ILB entry from Oct. 30th.

• Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General -- Cause No. 32A01-0812-CV-377 -- see this ILB summary from Aug. 17th which quotes the opinion: "[W]e cannot say substantial evidence supports the amount of the sanction."

Posted by Marcia Oddi on November 2, 2009 11:41 AM
Posted to Indiana Transfer Lists

Courts - Louisville paper gets it wrong re Kentucky AG "advising" the Corrections Department not to follow a recent state Supreme Court ruling

The Louisville Courier Journal has pulled the editorial included in this ILB post from Oct. 31st. It has published a retraction.

In addition, today's LCJ includes this letter from Kentucky Attorney General Jack Conway, headed "Conway: editorial based on 'factual errors'".

As Kentucky's Attorney General, I understand and accept that some of my positions may occasionally draw criticism from your editorial board. However, when you publish an editorial based on factual errors, I must respond and correct the record.

Your editorial titled “Ignoring the Court” on Oct. 31, is based on an erroneous premise. In that piece, you wrote (regarding the recent state Supreme Court decision striking down a portion of Kentucky's sex offender law restricting where offenders convicted prior to 2006 may live) that “Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's ruling.” You additionally wrote that I and my staff “advise the Corrections Department not to follow a recent state Supreme Court ruling.” These are factually incorrect statements.

Let me be clear — I and my staff have not advised the Corrections Department or its officers on this issue, nor have we been asked to do so by the Corrections Department. The Kentucky Corrections Department has its own general counsel and is acting of its own accord. I would never tell an agency of state government, which has its own general counsel and which I do not represent, to ignore a ruling of the Kentucky Supreme Court. I have too much respect for the court system, and to do so would be completely at odds with my oath as Attorney General and my duty as a lawyer.

Moreover, it is ironic that Andrew Wolfson's article, published the same day as your editorial, got the facts right when he wrote that a spokeswoman for the Corrections Department stated that, “on the advice of its general counsel, the department has told its officers not to follow the ruling until the state Supreme Court decides whether it will be stayed.” Mr. Wolfson also correctly points out that my office has sought a stay of the ruling from the Kentucky Supreme Court as we prepare to ask the U.S. Supreme Court for review.

And I do plan to seek review by the U.S. Supreme Court of this important matter. I have the statutory responsibility to defend laws passed by the General Assembly, and many states have laws similar to Kentucky's that have been upheld by their courts. Therefore, I plan to ask the U.S. Supreme Court to provide clarity on this issue. I understand the constitutional ban on retroactive punishment, but we must also consider the public's interest in its safety and limiting offenders' proximity to areas where children congregate. Only the U.S. Supreme Court can resolve this disagreement among state courts and apply this balancing test.

While you may certainly disagree with my decision to appeal, I would never ignore a ruling by our state's highest court. I respect our justices and the principle of judicial review.

JACK CONWAY
Kentucky Attorney General
Frankfort, Ky. 40601

Posted by Marcia Oddi on November 2, 2009 11:10 AM
Posted to Courts in general

Ind. Law - "When a public defender is also a defendant"

That is the headline to this long, front-page story today in the Indianapolis Star, reported by Heather Gillers. Here is the side-bar summary:

The issue: Should a defense attorney who is facing criminal charges disclose that information to a client who is facing charges filed by the same prosecutors?

What we found: Many legal experts believe this is a conflict of interest. Federal courts and the American Bar Association also believe attorneys should disclose such information, but no law requires it -- and neither does the Marion County public defender -- typically leaving such decisions to attorneys. Some attorneys do. But some don't.

The story begins:

When Mark Batey met with his public defender earlier this fall about a pending battery charge, Batey had no idea how well the attorney understood his predicament.

At the same time Batey's lawyer was representing him, that lawyer was fighting the same charge -- battery -- from the same Marion County prosecutor's office.

But Batey didn't find out about the potential conflict back then. He found out late last month.

And he didn't find out from his lawyer or anyone else in the public defender's office. He found out from The Indianapolis Star.

Batey's case is not unique. Because there is no legal requirement to disclose such information, The Star found it is mostly left up to individual attorneys to make that call. And they don't always do so.

All of which troubles legal experts, who think defense attorneys should disclose such potential conflicts of interest to their clients. Federal courts also have held that attorneys need to disclose such information.

The problem, they stress, is the temptation for a defense attorney to defend a client less vigorously either to curry favor with prosecutors or to at least not antagonize them.

Failing to tell a client about a pending charge from the same prosecutor's office, several law professors said, likely violates professional responsibility rules that say clients have a right to know when lawyers' personal interests conflict with those of their client.

"There is no doubt in my mind that the best way to proceed is for the lawyer to fully inform the client," said Charles G. Geyh, associate dean of research at Indiana University Maurer School of Law in Bloomington. "Failing to do so would probably be a violation of the rule."

But individual attorneys have different opinions on just how to define a personal conflict of interest.

Marion County's chief public defender, Robert Hill, said a pending charge -- even from the same prosecutor's office -- is not a conflict of interest and therefore need not be disclosed under professional responsibility guidelines. His predecessor, David Cook, also did not require disclosure.

Posted by Marcia Oddi on November 2, 2009 10:32 AM
Posted to Indiana Law

Law - "Groups urge Senate leader to move ahead with Dawn Johnsen confirmation"

Updating the ILB's long list of earlier entries on Indiana Universtiy Mauer School of Law professor Dawn Johnsen's long-pending nomination to head the DOJ Office of Legal Counsel, Andy Graham of the Bloomington Herald-Times reported in a story ($$) Nov. 1st:

Harry Reid does have a few other things on his plate right now. Reforming health care comes to mind.

But the U.S. Senate Majority Leader was sent a letter Thursday — signed by the leaders of 39 civil rights, union, education and liberal advocacy groups — urging him to move forward with a floor vote on the nomination of Dawn Johnsen to head up the Obama administration’s Office of Legal Counsel.

Indiana University law professor Johnsen was selected by Obama for the post in January and approved by the Senate Judiciary Committee in March, but still awaits a confirmation vote on the Senate floor.

“This delay is extraordinary and unacceptable,” the letter read, in part, “(and) as you know, the Office of Legal Counsel performs a critical role in guiding executive branch activities, advising the President and his Administration on the constitutionality of proposed policies, legislation and executive orders...

“No one is better qualified for this position than Professor Johnsen.”

Johnsen served as deputy in the Office of Legal Counsel, then as acting head of the office, under President Bill Clinton.

Her boss there, Duke professor Walter Dellinger, spoke highly of his former colleague Friday.

“It is particularly dismaying Dawn Johnsen hasn’t gotten a vote because her credentials to head the Office of Legal Counsel are beyond question,” Dellinger said. “For five years, she was in a leadership position in that office, and her work there won praise across the board from senior officials of the FBI, CIA, the national security agencies and the other major departments with which she dealt.

“There is no guesswork involved in terms of how she would conduct the office. She conducted it in a non-partisan, effective manner that showed devotion to the rule of law.”

Republican objections have been rooted in Johnsen’s work as National Abortion Rights Action League (now NARAL Pro Choice America) legal director from 1988 to 1993.

The Constitution gives the Senate oversight of many presidential appointments. Senate rules allow individual senators or groups of senators to delay that process, perhaps indefinitely, via the filibuster and other mechanisms. Reid apparently hasn’t been able to muster the 60 necessary votes to override an implied filibuster and force a final vote on Johnsen’s nomination.

Historically, the Senate readily acquiesced to administration choices for executive branch jobs, particularly those below cabinet level.

“Going back to the 1990s and before, there was the presumption that presidents got to fill out the positions in their cabinet, sub-cabinet and beyond,” Ted Carmines, Center for Congress research director at IU said Friday. “They weren’t held up for any undue length of time.

“But that has changed the past 10 or 15 years when the minority party, whichever it was, has held up more nominations and blocked more. That’s clearly happening right now. It’s further evidence of the growing polarization and partisanship we’ve seen in the legislative body. These nominations haven’t been pushed to the floor, haven’t been withdrawn and are just waiting for the Senate to deal with them. Usually, finally, they’re dealt with at some point.”

The letter to Reid maintained that in the 60 years since Senate rules changed to permit invoking cloture to close debate on nominations, only 24 executive branch nominations have required that vote to end filibusters — but that five such instances have occurred during the first nine months of the Obama administration.

IU political science professor Marjorie Hershey didn’t question those numbers, but echoed Carmines in saying many of those 24 previous instances likely occurred during the George W. Bush and Clinton administrations. She strongly defended the congressional oversight outlined by the Constitution.

“There are a lot of differing views about this sort of situation,” Hershey said. “One view is that it’s the president’s prerogative to decide who should head these offices and that Congress should rubber-stamp them. But I think that would run counter to the constitutional checks and balances. The president proposes, the Congress disposes.

“It isn’t the case that the president has carte blanche and Senate just bows to his will. The Senate is exercising its constitutional right and authority. And the current Republican minority is exercising its rights.”

Hershey noted that the Senate was created by the Founding Fathers to be a more deliberative body than the House of Representatives.

“The House was always going to have a lot more members and has different rules of operation,” Hershey said. “It’s more difficult to make a decision when there are more people in the room. So the House leadership has more power in determining what comes to the floor and who can offer amendments or comment and so on.

“The Senate has never worked that way. The rules of the Senate don’t permit the leadership to direct legislation, to order how the legislation will be dealt with, nearly as much as their House counterparts. And the Senate has the rule and tradition of the filibuster.”

Hence Harry Reid’s problem regarding Dawn Johnsen, whether to fight a nomination battle he might not win, and delay other key Senate business in the process.

Posted by Marcia Oddi on November 2, 2009 07:20 AM
Posted to General Law Related

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

Stats for the ILB over the weekends fall to one-third or less of these during the week, although the ILB itself keeps puttering along. Sometimes the best posts occur over the weekend, when there is more time. Hence this new Monday feature - "What did you miss over the weekend?"

From Sunday, Nov. 1, 2009:

• Ind. Law - More on: Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney
• Ind. Courts - "Change of venue shifts Indy trial to Valparaiso"
• Law - "Digital Data Makes For A Really Permanent Record"
• Law - "GQ Ranks Elizabeth Warren Among D.C.’s Most Powerful"
• Ind. Gov't. - More on "Jeff steel plant fined $240,000 for violations found after worker died"
• Environment - "Coal Combustion Residue: Status of EPA’s Efforts to Regulate Disposal"

From Saturday, Oct. 31, 2009:

• Ind. Law - Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney
• Ind. Courts - "St. Joseph County officials are saying little about Nemeth case"
• Ind. Gov't. - Following up on "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"
• Courts - Ky AG advises the Corrections Department not to follow a recent state Supreme Court ruling as he appeals it. to SCOTUS
• Ind. Courts - More on: Notre Dame sues former employee over tip
• Ind. Courts - "Hammond Mayor irritates judge, talks of murder case: Court had banned discussion about Hammond homicide"
• Ind. Courts - More on "School sued for punishing teens over MySpace pix"
• Ind. Decisions - Transfer granted in BMV / Social Security Administration records case

From Late Friday, Oct. 30, 2009:

• Ind. Decisions - What happens when a case is settled after transfer is granted?
• Ind. Courts - "School sued for punishing teens over MySpace pix"

Posted by Marcia Oddi on November 2, 2009 06:58 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 11/2/09):

• Note: No oral arguments scheduled.

Next week's oral arguments before the Supreme Court (week of 11/9/09):

• Note: The Supreme Court's calendar for the entire month of November is currently blank.

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

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This week's oral arguments before the Court of Appeals (week of 11/2/09):

Tuesday, November 3rd

• 1:30 PM - Bradley J. Love vs. Robert Rehfus and Sugar Creek Township - In the case before us, Bradley Love, a former employee of the Sugar Creek Fire Department, claims that he was fired by Fire Chief Robert Rehfus for exercising his First Amendment Rights by commenting via email on the 2006 trustee election. He maintains that the trial court erred by summarily dismissing his Complaint because: (1) his email did not contain recklessly false statement and thus should have been afforded protection under the First Amendment of the United States Constitution; and (2) Love failed to establish municipal liability in the Sugar Creek Township because the termination decision was not made by a "municipal policy-maker" pursuant to Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) and its progeny. Love now requests us to review both of the trial court's alleged errors. The Scheduled Panel Members are: Chief Judge Baker, Judges Friedlander and Riley. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 11/9/09):

Next Tuesday, November 9th

• 12:30 PM (CST) - Steven Barnard v. Metro Security Forces, Inc., et al - Steven Barnard sued Metro Security Forces, Inc. ("Metro") for personal injuries he allegedly sustained when he was pushed by a man wearing an "Usher" tag at a concert. The trial court granted summary judgment to Metro, finding that the designated evidence showed that Metro provided only uniformed guard services at the venue and therefore there was no genuine issue of material fact regarding Metro's liability because the man wearing the "Usher" tag was not a Metro employee. Barnard appeals the trial court's grant of summary judgment. The Scheduled Panel Members are: Judges Robb, Mathias and Bradford. [Where: Michigan City High School, 8466 Pahs Road, Michigan City, Indiana]

Next Thursday, November 12th

• 2:30 PM - Michael Greer and John Maggi vs. Edwin G. Buss, Commissioner of the Indiana Department of Corrections, et al. - Michael Greer and John Maggi filed a proposed class action seeking declaratory and injunctive relief with respect to the Indiana Department of Correction (DOC) policy that individuals convicted of certain sex or violent offenses which required registration for a ten-year period must register for an additional ten-year period upon a subsequent conviction for any criminal offense. According to DOC, such additional registration was required by statute. Greer and Maggi appeal the trial court order that both dismissed their proposed class action and granted summary judgment to DOC thereon. The Scheduled Panel Members are:Judges Darden, Robb and Mathias. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

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

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

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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 2, 2009 06:41 AM
Posted to Upcoming Oral Arguments

Sunday, November 01, 2009

Ind. Law - More on: Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney [Updated]

Updating this ILB entry from yesterday, Indy 6 News now has this more complete account.

[Updated 11/2/09] Today's Indianapolis Star has this story speculating n the cause for the incident.

Posted by Marcia Oddi on November 1, 2009 07:27 PM
Posted to Indiana Law

Ind. Courts - "Change of venue shifts Indy trial to Valparaiso" [Updated]

James D. Wolf, Jr. reports today in the Gary Post Tribune:

VALPARAISO -- Visitors to the Porter County Courthouse this week will find Indianapolis law enforcement officers added to Porter County Sheriff's police security, and Indianapolis television crews outside the building.

Those will be the most obvious differences as the county hosts the trial of a man accused of shooting an Indianapolis police officer.

The trial of Brian Reese, 37, received the change of venue because of extensive media coverage in Marion County.

Superior Court Judge Lisa Borges, the prosecutors and defense attorneys will all come from Marion County, and they will choose Porter County residents as jurors Monday.

The assumption is that Porter County residents have not been tainted by publicity from coverage of the attempted murder charge.

The trial is expected to last into next week and will take place in Superior Court on the second floor of the courthouse in Valparaiso.

Judge Mary Harper, who usually presides over that courtroom, will be gone for the week.

The trial should cost Porter County little more than inconvenience.

Under Indiana law, the county where the charges were filed is required to cover change-of-venue costs.

That includes transportation and boarding of the witnesses and the defendant, cost of prosecution and legal proceedings and cost of increased security.

"Each agency is paying its share for its presentation of the case," said Mario Massillamany, the Marion County prosecutor's spokesman.

He expects to be on hand Monday to work out media access to the courtroom, which will be limited by media passes.

From the Indianapolis Star's "Behind Closed Doors" column today:

Marion County Prosecutor Carl Brizzi's trial calendar has been full after a nearly four-year dry spell.

This month, the Republican tried his first case since winning a second term as prosecutor in 2006.

He spent two weeks in a courtroom as part of a team that won convictions on all counts against Desmond Turner in the Hamilton Avenue slayings of seven people. A judge also granted Brizzi's request for a life sentence without parole.

In the coming week, Brizzi will flex his prosecutorial muscles again, this time at the trial of Brian Reese, which has been moved to Porter County because of publicity.

Reese is charged with attempted murder in the near-fatal wounding in July 2008 of Indianapolis Metropolitan Police Department officer Jason Fishburn during a foot chase.
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Brizzi last participated in a trial in December 2005. He has planned on others since then, he says. But as luck would have it, all have ended in guilty pleas.

There will be another reunion, of sorts, at the Reese trial. Marion Superior Court Judge Lisa Borges, a senior adviser to Brizzi during his first term, will preside over the trial.

"I better watch my P's and Q's," Brizzi said last week during a news briefing on the trial. Then again, he said, "I had to watch my P's and Q's when she was my chief of staff."

[Updated 11-2-09] Jon Murray has a long story on the upcoming trial in today's Indianapolis Star. The headline: "Intent to kill officer is the question as trial starts: Jury will be picked in Valparaiso to hear Fishburn shooting case."

Posted by Marcia Oddi on November 1, 2009 06:00 PM
Posted to Indiana Courts

Law - "Digital Data Makes For A Really Permanent Record"

The ILB wrote Oct. 8th on the "Streisand effect", when, for example, an attempt to expunge past criminal records instead creates additional public records.

And even if a record is expunged, often it isn't really. NPR's Martin Kaste had a nearly 8-minute report on All Things Considered Oct. 29 that began:

There was a time when defense lawyer Robert Perez did a brisk business expunging criminal records. People who'd been acquitted of criminal charges could clear the record and start over with their lives.

But no more.

"They find out everything," the suburban Seattle lawyer says. "There's no such thing as privacy of criminal records anymore."

Perez says prospective employers and landlords will find out about the criminal record anyway because they use private database services that are unaffected by a court's expungement order.

"It's a big problem because these people are being confronted by the situation where they've told an employer — as they're entitled to — that this never happened," Perez says. "And the employer has conflicting information. They don't get the job, and they never learn why."

Information doesn't fade the way it used to. Documents that once upon a time could be counted on to be filed and forgotten are now finding an afterlife in digital, searchable form.

This is the last of a 4-part series. The earlier stories were:

• Digital Bread Crumbs: Following Your Cell Phone Trail Oct. 28, 2009
  
• Is Your Facebook Profile As Private As You Think? Oct. 27, 2009
  
• Online Data Present A Privacy Minefield Oct. 26, 2009

Posted by Marcia Oddi on November 1, 2009 08:04 AM
Posted to General Law Related

Law - "GQ Ranks Elizabeth Warren Among D.C.’s Most Powerful"

That from this entry by Jacqueline Palank in the WSJ Bankruptcy Blog.

See the entire list of 50 here, at GQ.

Posted by Marcia Oddi on November 1, 2009 08:00 AM
Posted to General Law Related

Ind. Gov't. - More on "Jeff steel plant fined $240,000 for violations found after worker died"

Updating this ILB entry from Oct. 29th, Chris Sikich reported in the Indianapolis Star Oct. 30th:

The Indiana Department of Labor has issued several fines that total $191,000 against a Noblesville-based company for several safety violations.

The department issued the fines this week against King Systems, 15011 Herriman Blvd., which makes anesthesia and respiratory care products. No one died or was seriously injured in any of the incidents for which the company was fined.

However, the Department of Labor also issued a $240,000 fine against Steel Dynamics’ plant in Jeffersonville. That case did involve a death.

Sean Keefer, deputy commissioner at the Department of Labor, said those are the highest fines since 2006 for any Indiana company. The department does about 2,000 to 2,500 inspections annually, he said. The state had 132 workplace fatalities last year.

Keefer said King Systems’ violations included putting employees at risk from dangerous gases. He said some of the violations were either repeated or knowing in nature.

Posted by Marcia Oddi on November 1, 2009 07:57 AM
Posted to Indiana Government

Environment - "Coal Combustion Residue: Status of EPA’s Efforts to Regulate Disposal"

The Government Accountability Office has issued this 38-page congressional briefing, dated Oct. 30th.

Posted by Marcia Oddi on November 1, 2009 07:53 AM
Posted to Environment

Saturday, October 31, 2009

Ind. Law - Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney

The Indianapolis Star is reporting that Indianapolis attorney and state representative Ed DeLaney was attacked in Carmel by "his prospective client, Augustus J. Mendenhall, 38." More from the story:

[Carmel police say that Mendenhall] punched DeLaney and wielded a gun. Mendenhall is being held in the Hamilton County Jail and faces several felony charges, including attempted murder.

Ann DeLaney, Edward DeLaney's wife, said her husband had never met his attacker before today. He thought Mendenhall was interested in buying land in the area and wanted legal advice, she said. * * *

Edward DeLaney suffered several head injuries, Ann DeLaney said. He's bruised and swollen and has broken bones above and below one eye. Doctors are doing tests to determine whether his ribs are broken. He's in good spirits and has been joking with the medical staff, she said.

"Under the circumstances," she said, "he's been doing very well."

A check of the net shows an Augustus J. Mendenhall on the list of those successful on the July 2008 Indiana Bar Examination. Here is a Linkedin page for the same new attorney, Augustus J. Mendenhall who, according to the Roll of Attorneys, lives in Plainfield and was admitted to the Indiana bar on Oct. 17, 2008.

Posted by Marcia Oddi on October 31, 2009 06:17 PM
Posted to Indiana Law

Ind. Courts - "St. Joseph County officials are saying little about Nemeth case"

Erin Blasko has this report today in the South Bend Tribune. (For background, see this ILB entry from Oct. 29th.) Some quotes:

County officials are saying very little about an order issued earlier this week in a legal battle between the county and Probate Judge Peter Nemeth.

The order, handed down Wednesday, rules against the county and requires it to release more than $300,000 to Nemeth to pay raises and make physical improvements at the Juvenile Justice Center. It also requires county commissioners to pay Nemeth's legal fees, totaling more than $18,000.

Officials did not comment on the order Wednesday because some had not yet seen it, and others were unavailable. A Tribune reporter then supplied the order to commissioners and to Deputy Auditor Cindy Bodle on Thursday. [The ILB has not obtained a copy.] * * *

The order stems from a judicial mandate issued by Nemeth earlier this year directing the County Council and commissioners to appropriate $60,208 to him to provide raises to eight JJC employees and $295,950.98 to renovate the JJC facility.

State judicial rules allow judges to issue judicial mandates requiring the release of funds if it is believed those funds are necessary to administer justice.

The appropriations were approved by the council and commissioners in late 2008, but commissioners never signed the requisition forms. Kovach refused, and Mark Dobson and Steve Ross were preparing to leave office.

The money for renovations was to come from an unspent JJC personnel fund and the raises from juvenile probation user fees.

As a result of the commissioners' inaction, money in the unspent personnel fund reverted to the general fund to balance the 2009 budget.

In ruling against the county, William Satterlee, a Valparaiso attorney appointed special judge in the case, argued the mandated expenditures would not financially burden the county because the $295,950.98 that reverted back to the county became unappropriated revenue in the 2009 budget.

He also said the county failed to prove the expenditures were unnecessary and/or extravagant.

Asked Wednesday about the order, Nemeth said it proved he was on the side of justice in the case.

"Well, I'm certainly pleased the rule of law prevailed," Nemeth said. "I think the rule of law was on our side from the beginning."

Nemeth said it was unfortunate the county chose to oppose the mandate, calling the decision a "waste of taxpayer money."

If the county accepts Satterlee's order, it will take effect within 30 days, according to Jim Masters, Nemeth's attorney.

[County attorney Jim] Groves, however, has indicated the county has no such intention, and that it plans to allow the case to proceed to the state Supreme Court for review.

If the Supreme Court upholds Satterlee's ruling, the county would likely cover expenditures mandated in the order, Bodle said, by first looking to tap unspent JJC funds.

If the JJC has no unspent funds, or if Nemeth balks at their use, the county would then be forced to either make cuts in other departments, Bodle said, or tap its Rainy Day and County Economic Development Income Tax, or CEDIT, funds.

The latter, she said, would threaten the sustainability of those funds, which represent a sort of financial safety net for the county. * * *

For his part, Nemeth said he hoped he would not have to get into another "legal scrabble" with the county concerning the execution of the order.

The ILB believes: (1) this was the first mandate action pursued under the revised Supreme Court rule re mandates; and (2) the possibility of another mandate has been raised at this year's St. Joe budget meetings.

Posted by Marcia Oddi on October 31, 2009 10:01 AM
Posted to Indiana Courts

Ind. Gov't. - Following up on "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"

This ILB entry from Sept. 5th quoted stories from the WSJ and the LA Times titled, respectively, "Lights Out at the Penitentiary: Strapped States are Shutting Prisons," and "Cash-strapped states revise laws to get inmates out: Mandatory sentencing laws are relaxed, parole is accelerated, and time off for good behavior is increased as states scramble to save money."

Contrast those stories with an Indianapolis Star story titled "Killer's early release in pastor's 1993 slaying sparks outrage" quoted in this Sept. 7th ILB entry, and a NWI Times story headed "Ind. loophole lets some life sentences end early," quoted in this Oct. 10th ILB entry.

Yesterday's Fort Wayne Journal Gazette published this editorial titled "When prisons are full":

Tough-on-crime initiatives often run into the roadblock of financial realities. Such is the case in Indiana’s prison system, which has effectively reached capacity for higher-security adult men yet still takes in 1,000 or more new prisoners each year, as Niki Kelly’s Sunday story explained.

Yet Indiana lawmakers denied proposals for two prison expansions this year, and for good reason. Not only does prison space cost money, but it also requires more staff, adding yearly expenses. And society’s experience with prisons has been if you build it, they will come: With less incentive to seek alternatives, the judicial system will fill prisons.

Many Hoosiers like the idea of putting criminals in prison and forcing them to serve entire sentences, but they hedge at the monumental cost.

In addition, prisons have bleak records in reforming inmates.

So lawmakers again must examine tough laws that put Hoosiers in prison for drug possession and other non-violent crimes. They must again examine ways to expand cost-effective programs such as drug and re-entry courts, which judge criminals but also help them with job and life skills to reduce their chances of re-offending.

They must continue to seek ways to make home detention and work-release programs available and secure.

Prisons are necessary to protect society from the most violent criminals, but alternatives for non-violent criminals are most cost-effective and can often achieve reformation when prison cannot.

Here is the lengthy Oct. 25th story by Niki Kelly referenced in the editorial. The headline: "State deals with rise in inmates, violent acts." Some quotes, from the beginning and end of the story:

INDIANAPOLIS – Every month, about 100 new prisoners stream into the Indiana Department of Correction, whether there is room for them or not.

The agency hasn’t received funding for new beds or additional guards in years – a reality that has pushed inmates, correctional officers and the public into potential danger.

Violence is on the rise in the prison system – an estimated 43 percent increase in inmate assaults and a projected 6 percent increase in staff assaults.

DOC Commissioner Edwin Buss said the situation is like waiting for a disaster.

"Every murderer or armed robber sentenced today has no bed waiting for them," he said. "It hasn’t had a traumatic effect yet, but I liken prison overcrowding to playing Russian roulette.

"Every year that we add more than 1,000 offenders is like putting a bullet in the chamber. It’s going to catch up to us sooner or later."

Indiana is housing 27,300 inmates – a number that has been growing between 1,000 and 1,200 every year. * * *

Gone are the days when Indiana was housing out-of-state prisoners because of a surplus of beds. Now, it has no open maximum-security or high-medium-security beds for adult male offenders, Buss said.

That means violent offenders are being bunked in lower-security dormitory spaces and bunks are being moved closer to fit more in, creating a potential powder keg. * * *

So what can be done about crowding aside from increasing prison capacity?

Buss said 6,000 offenders come in every year with sentences of six months or less, many for drug possession, fraud, forgery and other nonviolent offenses.

He encourages lawmakers to re-evaluate sentencing options for these crimes.

He said a few states tried to relegate offenders with sentences of less than a year to county jails. But jails didn’t have the necessary beds, either, prompting judges to retaliate by issuing sentences of one year and one day.

"If we had buckets of money, it wouldn’t be a problem, but we don’t have buckets," said Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee.

Steele is filing a bill for the 2010 legislative session which would allow non-violent offenders who have served at least half their sentence to post a bond to be released from prison early.

The percentage of the sentence that must be served is flexible, he said. But an important part of the program would be having a family member also sign the bond and take a role in the offender’s behavior on release.

"It’s like early parole," Steele said. "But with a financial stake."

Posted by Marcia Oddi on October 31, 2009 09:01 AM
Posted to Indiana Government

Courts - Ky AG advises the Corrections Department not to follow a recent state Supreme Court ruling as he appeals it to SCOTUS [But see corrections below]

"State to appeal ruling limiting sex-offender law" is the headline to a story dated Oct. 29th in the Louisville Courier Journal. Andrew Wolfson reports:

The Kentucky attorney general’s office has asked the state Supreme Court to delay enforcement of its Oct. 1 ruling throwing out part of the state’s sex-offender statute until the U.S. Supreme Court hears the case.

The attorney general’s office filed a motion Oct. 21 asking the state high court to stay its ruling that the law banning sex offenders from living near schools, day cares and playgrounds cannot be applied to those convicted before the statute was enacted in 2006.

The court ruled 5-2 that the statute was improperly imposed on people convicted before it went into effect. The U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law's enactment.

Lisa Lamb, a spokeswoman for the state Corrections Department, said on the advice of its general counsel, the department has told its probation and parole officers not to follow the ruling until the state Supreme Court decides whether it will be stayed. * * *

The attorney general’s office has until Dec. 30 to file a petition with the U.S. Supreme Court to hear the case. No petition has been filed.

The U.S. Supreme Court rejects most cases, but the issue of whether sex-offender laws can be applied retroactively has surfaced in many states.

Under the Kentucky Supreme Court’s Oct. 1 ruling, sex offenders will still be required to register, but the residency restrictions enacted in 2006 cannot be applied to offenders convicted before that date.

Today the LCJ has an editorial headed "Ignoring the Court" [but see 11/2/09 correction below]:

Just because you can do something doesn't mean you should. Attorney General Jack Conway needs to remember the wisdom of that old admonition as he and his counsel advise the Corrections Department not to follow a recent state Supreme Court ruling as Mr. Conway appeals it.

On Oct. 1, the state's high court, in a 5-2 decision, said the law banning sex offenders from living close to schools, day care centers and playgrounds could not apply to those convicted before 2006, the year the law was enacted. (Earlier this year, the Indiana Supreme Court issued the same ruling for its state law.) Mr. Conway was not happy with the decision, which he said raised “serious concerns about the impact on public safety.” He indicated that he might appeal the ruling to the U.S. Supreme Court.

On Oct. 21, Mr. Conway's office filed a motion asking the state Supreme Court to suspend its ruling. The convicted sex offender who successfully challenged the state law has until Nov. 3 to oppose the Attorney General's motion to suspend the higher court's ruling, and Mr. Conway has until Dec. 30 to ask the U.S. Supreme Court to hear his case. In the meantime, the state Supreme Court hasn't issued an opinion as to the stay, and Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's finding.

“Our position is that the Supreme Court decision is not final,” Lisa Lamb, spokeswoman for the state Department of Corrections, told the Lexington Herald-Leader . “We believe the former law is still in effect.”

That may be what they believe — and they provide copies of rules of procedure to back up their position, per the department's legal counsel. But the attorney general and his operatives ought not to be in the business of ignoring Supreme Court rulings they don't agree with, no matter how public-minded their intentions.

ILB - In some ways this appears to parallel the Indiana dispute over the COA Voter ID ruling negating the Indiana law and whether it applies to the Nov. 3 election, or whether it must be "certified" first. Thoughts?

[Correction posted 11/2/09] The ILB has received this note from the Office of the Kentucky General:

Dear Marcia,

The headline of your article re: Kentucky Attorney General Jack Conway’s decision to appeal the state Supreme Court’s recent ruling regarding sex offender residency restrictions is incorrect. If you read the article you posted, the Department of Corrections is relying on advice from its own General Counsel, not the Attorney General, in advising its probation and parole officers in how to enforce the law.

Attorney General Conway has not advised the department on this issue, nor has he been requested to do so. The Department of Corrections is not under the supervision of General Conway, it is under supervision of the Governor of Kentucky.

Please correct this headline as soon as possible. Thank you.

Sincerely,

Allison

Allison Gardner Martin
Communications Director
Kentucky Attorney General Jack Conway
700 Capital Avenue
Frankfort, KY 40601

In addition, the LCJ has now retracted the editorial quoted above - see this 11/2/09 ILB entry.

[Even more] Here is a link to the 29-page, 5-2 opinion itself - Comm. of Kentucky v. Michael Baker (Oct. 1, 2009).

Posted by Marcia Oddi on October 31, 2009 08:33 AM
Posted to Courts in general

Ind. Courts - More on: Notre Dame sues former employee over tip

Updating this Oct. 15th ILB entry, WSBT South Bend has an Oct. 30th story by Alicia Gallegos reporting:

The University of Notre Dame and a former catering employee who accepted a mistaken tip of nearly $30,000 have settled their legal dispute.

In court documents filed Wednesday, Sara Gaspar has agreed to pay back Notre Dame $16,859.79, about half of the original sum placed in her bank account.

The debt will be replenished slowly through payments of $50 each month, meaning that the entire debt likely would be repaid in about 28 years.

The case against Gaspar revolved around a mistaken gratuity that was placed in Gaspar’s bank account while she was a Notre Dame employee.

On April 17, the former catering employee was to be paid a gratuity of $29.87, but because of an error, court documents state, a total of $29,387 was deposited into her account.

Instead of returning the money, the recent lawsuit filed by the university claimed that Gaspar spent the extra cash on bills and a new car. * * *

As collateral to secure the agreement, Gaspar put up the car, a 2002 Volkswagen Jetta, she purchased earlier this year with cash from the large gratuity payment.

We hope she can strike a similar deal with the IRS.

Posted by Marcia Oddi on October 31, 2009 08:19 AM
Posted to Indiana Courts

Ind. Courts - "Hammond Mayor irritates judge, talks of murder case: Court had banned discussion about Hammond homicide"

Ruth Ann Krause reports today in the Gary Post Tribune:

Hammond Mayor Thomas McDermott Jr., was on the radio Thursday and Friday commenting on the case of two Hammond teens charged with felony murder after a representative of the Lake County Prosecutor's Office informed him of a gag order in the case.

The subject came up at a formal appearance for Gregory Brooks Jr., 18, and Reo Jon'Ta Thompson, 17, who have pleaded not guilty to four counts of murder in perpetration of a burglary, two counts of murder in perpetration of a robbery and nine other felony charges, including confinement and auto theft.

The charges were filed in the deaths of Milton and Ruby McClendon, whose bodies were found Oct. 19 in Calumet City, Ill., in Cook County Forest Preserve.

Chief Public Defender David Schneider informed Lake Superior Magistrate Kathleen Sullivan that McDermott was on the radio Thursday afternoon and Friday morning discussing the case.

Lake Superior Court Judge Clarence Murray issued the gag order barring "parties, counsel, law enforcement officials and court personnel" from publicly discussing the case.

Schneider said McDermott was on WBBM radio, where he made a statement that he understood there is a moratorium on the death penalty in Illinois, but not in Indiana. Friday morning, about 30 minutes before the teens were in court for their formal appearance, Schneider said McDermott was on WJOB radio wondering aloud whether the gag order applied to him as mayor. McDermott is a lawyer.

Trial Supervisor Mary Ryan said the order was faxed to McDermott's office.

A clearly irritated Sullivan said the order issued Wednesday was to ensure that the jury pool would not be tainted by comments made about the crimes or investigation that aren't contained in public records.

Lake County Prosecutor Bernard Carter said he personally would call McDermott and speak to him about the order.

Posted by Marcia Oddi on October 31, 2009 08:14 AM
Posted to Indiana Courts

Ind. Courts - More on "School sued for punishing teens over MySpace pix"

Updating yesterday's ILB entry, here is a story from Wed. Oct. 28th that the ILB missed, reported by Rebecca S. Green of the Fort Wayne Journal Gazette. Some quotes:

The American Civil Liberties Union has sued Smith-Green Community School Corp. and a principal in federal court on behalf of two girls punished for summer postings on MySpace.

Filed Friday in U.S. District Court in Fort Wayne, the lawsuit claims the two girls, both sophomore fall-sport athletes, were suspended from extracurricular activities for the entire school year because of sexually suggestive photographs posted on their pages on MySpace, a social networking site on the Internet.

The lawsuit names the district and Churubusco High School Principal Austin Couch, both individually and in his official capacity, and alleges that Couch and the district violated the girls’ First Amendment rights by how the situation was handled.

The ACLU seeks to have the case handled as a class-action on behalf of all students participating in, or who may participate, in extracurricular activities at Smith-Green Community Schools, according to court documents.

According to the lawsuit, the two girls, identified only by initials, participated in a sleepover this summer with friends from Churubusco High School.

During the sleepover, the girls took pictures of themselves “pretending to kiss or lick a large multi-colored novelty phallus shaped lollipop” as well as pictures of themselves in lingerie with dollar bills tucked in their clothing, according to court documents.

The girls posted the pictures on their MySpace pages, visible only to their online friends.

“They intended this to be humorous and all the participants considered it to be so,” the lawsuit said. “There was nothing in the pictures that identified the participants as attending Churubusco High School and there was no reference whatsoever in the pictures to (the school).”

But an unknown person with access to the photos downloaded them, printed copies and gave them to school workers including Couch, who promptly suspended the two girls from all athletic and extracurricular involvement for the year, according to court documents.

The school’s student handbook says the principal may bar students from participating in athletics if their conduct “in or out of school reflects discredit upon Churubusco High School … or creates a disruptive influence on the discipline, good order, moral or educational environment,” according to the lawsuit. * * *

“The forced counseling was humiliating to the plaintiffs and being forced to appear before the coaches to apologize for their intended humorous photographs … was profoundly embarrassing,” according to the lawsuit.

The plaintiffs seek a jury trial.

“The punishment … for expressive activity taken place outside of the (schools) which activity did not disrupt in any way educational activity violated the First Amendment,” according to court documents.

And because the policy exists, it is unconstitutional, the lawsuit alleges.

On behalf of the girls, the ACLU is asking a judge to prevent the school system from continuing to punish the two students and from interpreting the conduct policy to allow such punishment, as well as expunging all references to the matter from their records, according to court documents.

Today's Journal-Gazette has this editorial headed "School space vs. MySpace." Some quotes [emphasis by ILB]:

The promises and perils of social networking sites like Facebook and MySpace are challenging schools struggling to respond to new technology. Some are responding badly.

Churubusco High School is a prime example. Administrators there interfered in what was not a school matter and now find themselves as defendants in a lawsuit filed by the American Civil Liberties Union. * * *

The case is a classic example of a school district overreacting to an incident involving students, whose personal judgment is often limited by their maturity. The girls, no doubt, now realize the danger of posting anything online that they don’t want distributed.

But the punishment they were forced to face – for an incident in the summer, not on school property and not involving the school in any way – was out of line. Nancy Baer, an Albion parent, said she has no connection to the school district but was angered by the account of the punishment.

“I’m appalled that someone would even think up something as twisted as having these young girls go in front of all of these male coaches,” she said. “If it were reversed, and it was boys involved, would he have gotten a line of female faculty members together for them to apologize to? What do they think they’ve accomplished?”

The ACLU is asking a judge to prohibit the Smith-Green schools from continuing to punish the two students and from interpreting the conduct policy to allow such punishment, as well as expunging all references to the matter from their records, according to court documents.

Regardless of the case’s outcome, the school board should address discipline procedures at the school, and board members and administrators elsewhere should weigh their own procedures to ensure they don’t respond in the same unacceptable manner.

Here is a copy of the 9-page complaint in T.V. and M.K. v. Smith-Greem Community School Corp. The claim for relief:

The punishment of plaintiffs for expressive activity taken place outside of the Smith-Green Community Schools which activity did not disrupt in any way educational activity violated the First Amendment and to the extent that defendants have a policy allowing such punishment the policy is unconstitutional as violating the First Amendment as applied to such activity which is not disruptive.

Posted by Marcia Oddi on October 31, 2009 07:47 AM
Posted to Indiana Courts

Friday, October 30, 2009

Ind. Decisions - Transfer granted in BMV / Social Security Administration records case

The ILB has received no official notice, but a reader sent this note late this afternoon:

FYI, it's reported on the electronic docket that the Supreme Court yesterday granted transfer in Leone v. Comm'r, BMV, 906 N.E.2d 172 (Ct.App. 5/15/09), the 2-1 decision holding that the presence of an unresolved discrepancy between BMV and SSA records constituted a rational basis for suspending or revoking a driver's license or ID card, which are now needed to vote under the Voter ID Law.

The ILB has confirmed this via the clerk's docket - 49 S 02 - 0910 - CV - 00505.

Here is the ILB's May 15th entry discussing the Court of Appeals opinion in Lyn Leone, Omari Vaden, et al v. Commissioner, Indiana Bureau of Motor Vehicles, et al. The summary written in advance of the COA's oral argument read:

The Appellants-Plaintiffs contend that the Commissioner of the Bureau of Motor Vehicles has violated Indiana Law by relying upon the Social Security Administration's records to revoke their driver licenses or state issued identification cards. They contend that state law only requires them to provide their "legal name" in order to obtain a driver license or state identification card, but now the Bureau of Motor Vehicles is rejecting their valid driver licenses and state identification cards based upon conflicting records from the Social Security Administration.

Posted by Marcia Oddi on October 30, 2009 06:20 PM
Posted to Indiana Transfer Lists

Ind. Decisions - What happens when a case is settled after transfer is granted? [Updated]

The answer is in this Supreme Court "Order Dismissing Appeal and Vacating Oral Argument Setting," file-stamped Oct. 28, 2009. The case is Bunn v. INDOT. From the Order:

By order dated September 24,2009, the Court transferred jurisdiction of this appeal from the Court of Appeals to this Court, and set November 24, 2009 as the date for oral argument. The parties now file a "Notice Of Settlement And Stipulation For Dismissal Of Appeal," reporting they have reached a settlement and requesting the appeal be dismissed.

Being duly advised, the Court GRANTS the request, DISMISSES this appeal, and VACATES the oral argument setting. The Court of Appeals' not-for-publication Memorandum Decision in Bunn v. Indiana Dep't of Transp., Cause No. 50A03-0810-CV-504 (Ind. Ct. App. 2009), was vacated by the Court's earlier grant of transfer and shall be held for naught. See Appellate Rule 58(A). This appeal is at an end.

[Link added by ILB]

(As this case involved a NFP decision of the COA, it had no precedential value anyway under Rule 65(E).)

[Updated 10/31/09] A knowledgeable reader sends this note:

Thought you may be interested in knowing that, while a settlement after transfer normally will result in the appeal being dismissed, there have been several instances where the Supreme Court has not granted a party's motion to dismiss an appeal after transfer has been granted.

Whereas the Court of Appeals almost always will allow a party to dismiss an appeal after settlement (unless the decision has already been written and the opinion is ready to be handed down), the Supreme Court has more often kept a case active even after settlement because the issues involved are of enough concern that direction from the Supreme Court is warranted, even though the action is basically mooted as between the parties (especially if the legal issue is important, but is one that doesn't often present itself on appeal).

Posted by Marcia Oddi on October 30, 2009 04:27 PM
Posted to Ind. Sup.Ct. Decisions