Thursday, July 24, 2014
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (1):
Ind. Decisions - "2nd judge rules against Indiana’s right-to-work law"
Lesley Weidenbener, editor of TheStatehouseFile.com, reports today in the Indianapolis Star:
A Lake County judge has struck down Indiana’s 2012 right-to-work law that made it illegal for companies to compel nonunion members to pay fees for union services. * * *See this ILB post from Sept. 9, 2013, on the Sedia ruling. Here are a number of later ILB posts mentioning the ruling.
Lake Circuit Judge George Paras issued his ruling July 17 and said it would take effect immediately upon its entry into the chronological case summary, which makes it official. * * *
The Indiana Supreme Court has set oral arguments in a separate right-to-work case for Sept. 4.
In that case, Lake Superior Court Judge John Sedia also found the right-to-work law unconstitutional. But Sedia stayed his own ruling during the state’s appeal, which went directly to Indiana’s highest court.
The ILB does not recall another Indiana trial court declaring a state statute unconstitutional (unusual in itself) and then declaring that the opinion was to take effect immediately. One might call this unprecedented (at least until I learn differently). Compounding this, this week's ruling was made by a second judge in Lake County, on what look to be the same grounds as the first Lake Co. judge ruled last year, which earlier ruling is currently pending before the Indiana Supreme Court.
Attorney General Zoeller reportedly will be filing for an immediate stay.
Environment - Still more on: Right to Farm Act prevails in Randolph County lawsuits
Updating the ILB posts from July 16th and 17th on Judge Vorhees' rulings in the Maxwell Farm lawsuits, Seth Slabaugh of the Muncie Star-Press today has a long story headed "Pork powerhouse wins nuisance lawsuits: Delaware County judge throws out suits filed in Randolph County." Some quotes:
WINCHESTER — A trial-court judge has ruled in favor of one of the nation’s largest pork producers in four nuisance lawsuits brought by neighbors of industrial hog farms in Randolph County.The story continues:
The inventory of hogs and pigs in Randolph County more than tripled, from 55,443 to 177,605, between 2007 and 2012, according to the latest Census of Agriculture.
That sparked nuisance lawsuits against Goldsboro, N.C.-based Maxwell Foods, aka Maxwell Farms, which operates Buena Vista Sow Farm; Unionport Nursery Farm; Stone Road Farms; and Gary Foulke’s farm, all of which began production in the 2007-08 time frame.
Maxwell branched out to Indiana after North Carolina enacted a ban on construction of big hog farms because of environmental degradation, says Chris Hurt, an agricultural economist at Purdue University.
In addition, North Carolina's livestock industry uses more corn than is produced in the state. “They said, ‘We have to get our pigs to the corn,” Hurt said. “If North Carolina wanted expansion, they were not going to be able to do it in North Carolina.”
The lawsuits accuse Maxwell and other defendants of allowing hog waste to accumulate and “noxious fumes and odors to discharge from and be sensed beyond the boundaries of their property.”
But Special Judge Marianne Vorhees, of Delaware Circuirt Court 1, ruled the Indiana Right to Farm Act is constitutional. “Plaintiffs’ nuisance action can proceed only if they produce evidence that defendants were negligent, and defendants’ negligence was the cause of the odors,” Vorhees ruled. “Plaintiffs admitted they have no such evidence.”
Indianapolis attorney Rich Hailey, who represents the dozen plaintiffs, told The Star Press, “These are industrialized facilities. They are not family farms. The uncontroverted truth is all the plaintiff were living in those areas first (before the hog operations). Many had owned these properties for generations. These are people who grew up in the country. One day they looked out and had 4,000 to 8,000 hogs putting out 3 million gallons of untreated waste.”National Hog Farmer had this story July 18th headed "Indiana Pork Producers Prevail in Right to Farm Lawsuits."
The Right to Farm Act protects farmers if certain conditions are met, including “no significant change occurred in the type of agricultural operation on the locality.”
Under Indiana law, “changing from crop production to hog production does not constitute a significant change,” Vorhees ruled. She granted Maxwell a pre-trial summary judgment. * * *
“They take a big fan and blow the air out of those buildings,” Hailey said. “If they didn’t blow the noxious gases and odors from the buildings it would be fatal to workers and to the animals. Worse yet, they spread the waste on top of the soil, claiming it is fertilizer. It is fertilizer. So is human waste, but you’re not allowed to spread that on your lawn.”
Hailey said an appeal of the ruling is likely.
Successful Farming magazine ranked Maxwell Foods 11th in its “Top 25 U.S. Pork Powerhouses” in 2013. Maxwell ranked behind powerhouses like first place Smithfield Foods and eighth place Cargill but ahead of powerhouses including Tyson Foods and Hormel Foods.
Ind. Gov't. - Updating "Pence: Indiana won’t comply with prison rape law"
Updating a series of ILB posts on this issue, the most recent one from June 2nd, Indianapolis Star columnist Erika D. Smith has a story today connecting Gov. Pence's decision last month "that Indiana will opt out of the federal Prison Rape Elimination Act, a collection of guidelines designed to reduce sexual abuse behind bars," because the "law is too expensive to implement," with the 7th Circuit's ruling Monday finding a “severely sexualized climate” at the Pendleton state prison.
Ind. Decisions - Elkhart 4 felony-murder convictions to be focus of ABC's Nightline Prime on Saturday
Wednesday, July 23, 2014
Courts - "Federal prosecutors Are Reading Emails From Inmates to Lawyers"
From Stephanie Clifford's story today in the NY Times:
Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.
The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided. * * *
In Brooklyn and across the country, the issue is being decided case by case. A spokesman for the Bureau of Prisons declined to comment, citing the continuing litigation.
Ind. Decisions - "Businesses have a legitimate interest in the orderly operations of their workplaces, which extends to taking actions to prevent employees from having sex on the premises"
That quote from this Wisconsin Appellate Law Blog commentary on Monday's 7th Circuit decision (Ortho-Bell v. State) relating to state employee conduct at Pendleton state prison. The blog post, by Ryan N. Parsons, is headed "Hoosier Daddy? Rampant Sexual Misconduct in Indiana Prison Shows Pitfalls for Employers."
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (2):
In Joseph Laycock v. Joseph Sliwkowski, M.D., a 13-page opinion, Judge Barnes writes:
Laycock raises one issue, which we restate as whether there is designated evidence that Dr. Sliwkowski caused injury or damages to Laycock. * * *In Willie L. Montgomery v. State of Indiana , an 8-page opinion, Judge Baker writes:
[B]ecause there is no claim, let alone evidence, that Laycock had a fifty percent or worse change of recovery from the original injury, we must conclude he has not established that the Mayhue approach applies here. Thus, traditional causation principles apply to his case. Accordingly, Laycock had the burden of producing expert testimony rebutting Dr. Sliwkowski’s evidence that he did not cause Laycock’s injuries. * * *
Because the designated evidence does not establish a genuine issue of material fact on the issue of causation, the trial court properly granted Dr. Sliwkowski’s motion for summary judgment. We affirm.
In this interlocutory appeal, appellant-defendant Willie Montgomery challenges the trial court’s denial of his motion to dismiss the charge of Failure to Register as a Sex or Violent Offender1 in Vanderburgh County. Montgomery argues that the trial court erred in dismissing his motion because he had already been prosecuted for failing to register as a sex offender in Pike County. More particularly, Montgomery contends that prosecuting him for failing to register in both counties is barred under Indiana Code section 35-34-1-4(a)(7) and violates double jeopardy principles. We find that the charge in question is not barred under Indiana Code section 35-34-1-4(a)(7) and does not violate double jeopardy principles. We remand to the trial court for trial.NFP civil opinions today (4):
NFP criminal opinions today (8):
Ind. Courts - "10 states join Indiana’s appeal of federal judge’s same-sex marriage ruling" [Updated]
Tim Evans reports in the Indianapolis Star:
The attorneys general of 10 states have joined in Indiana’s appeal of a federal judge’s ruling that found the state law banning same-sex marriage unconstitutional.Here is the amicus brief, authored by the Attorney General of Colorado, and joined by the other states listed.
In a filing this week, the attorneys general of Alabama, Alaska, Arizona, Colorado, Idaho, Louisiana, Oklahoma, South Carolina, South Dakota and Utah filed a friend of the court brief alleging it is not the judicial branch’s role to determine whether same-sex marriage should be permitted.
ILB: No surprises here! These are many of the same 10 states that have signed on to the numerous amicus briefs authored in Indiana and filed by Attorney General Zoeller on behalf of the citizens of the State of Indiana in same-sex marriage cases throughout the country. See for example, this amicus brief, authored in Indiana and filed by the State of Indiana in the 9th Circuit, in support of the Governor and Attorney General of the State of Nevada. It was joined by ALABAMA, ALASKA, ARIZONA, COLORADO, IDAHO, MONTANA, NEBRASKA, OKLAHOMA, SOUTH CAROLINA AND UTAH.
Notice, however, that these numbers may be falling, this Feb. 26, 2013 ILB post notes:
Indiana is also the lead counsel on an amicus brief in Windsor, joined by 16 other states, arguing in favor of the federal Defense of Marriage Act (DOMA).Among those who joined the Indiana-authored Windsor amicus brief were states such as Wisconsin, Michigan, and Virginia, now, like Indiana, parties in their own same-sex marriage lawsuits.
Ind. Courts - "Man who threatened to bomb courthouse arraigned on federal charge"
Man who threatened to blow up Tippecanoe County Courthouse "arraigned in federal court Monday after a grand jury indicted him on a single charge: willfully making a threat to use fire or explosive materials.." See the IndyStar story by Steven Porter.
And don't miss the July 7th ILB post titled: "Threats v. satire in social media age", which I introduced as "A very long and important story today by Dave Bangert of the Lafayette Journal Courier. The nutshell subhead: 'Did Samuel Bradbury write threats or satire when he threatened judges and cops and vowed to blow up the Tippecanoe County Courthouse? Similar free speech questions headed to Supreme Court.'"
Ind. Courts - "New rules for Clark County Drug Court"
JEFFERSONVILLE — Changes have been made to the Clark County Drug Treatment Court participant handbook that will allow those in the alternative-to-prison initiative to more easily succeed in the program, officials say.
The court held an orientation last week to notify the nearly 40 people who remain in the program of the modifications, which were handed down from the Indiana Judicial Center, or IJC.
Clark County Circuit Court No. 4 Judge Vicki Carmichael was given temporary certification to continue offering drug court in the community after the IJC stripped the program’s certification from Clark County Circuit Court No. 2 Judge Jerry Jacobi earlier this year, following accusations of misconduct by the then-drug court staff.
Carmichael says the most significant changes involve curfew, collection of fees and medically assisted treatments.
Prior to the updates, the program’s participants were subjected to a blanket curfew of 11 p.m., but now the court and case managers have discretion to modify or completely lift a participant’s curfew.
Carmichael said she and others on the drug court staffing team were concerned about participants with employment opportunities or obligations that conflicted with their curfews.
“We didn’t want to have that be a violation,” Carmichael said. “We wanted to address curfew on a case-by-case basis. There can be some incidents where a curfew isn’t necessary for [employment] situations. That was really the impetus behind changing the curfew regulation.”
With fewer curfew restrictions, some participants may now be able to attend required substance abuse meetings scheduled later in the day that would have previously prevented them from meeting curfew.
When the program operated in Clark County Circuit Court No. 2, participants paid out of pocket for each drug test administered, or amassed a significant debt to the court.
Now, a monthly fee of $50 covers all drug-testing fees for each participant.
Under the old structure, a participant was not able to fully anticipate what fees he or she would have to pay each week for drug tests, as the amount of tests a participant may be subject to each week can fluctuate as well as type of tests, which vary in cost. * * *
Finally, the new handbook for the program redefines the regulations regarding prescribed medication, specifically methadone, suboxone and subutex, which are used to treat opiate dependence.
Previously, those who were actively using methadone or other relevant medications could enter the drug court program, but could not progress through the stages, which is required to graduate, if they continued using the substances.
“There is a fine line that the courts have to follow. We can not interfere with medical treatment, and these are medical treatments,” Carmichael said. “That is a person’s right to have medical treatment, so it shouldn’t exclude them from participating in drug court.”
Carmichael hopes the new handbook will be as well received by the participants as has the overall drug court program since it was moved to her court.
“The comments I have heard in court is that they appreciate the structure. They have appreciated the work that the prosecutor and defense attorneys and [the case managers] have put in to make it successful,” she said. “I think, from the drug court-participant standpoint, it is a program now that they believe in.”
Ind. Gov't. - "Squawk over chickens muted for now" in Porter
Paulene Poparad of the Chesterton Tribune reported earlier this month on a council meeting in the adjoining town of Porter:
Porter Town Council member David Wodrich moved to amend the zoning ordinance regulating backyard chickens, but the motion died for lack of a second Tuesday.This list of many other related posts was created via a search for "chickens" in the ILB.
The council took public input on the matter followed by council members Jeannine Virtue, Elka Nelson and Rob Pomeroy expressing concern over relaxing the rules as suggested. President Greg Stinson was absent.
Police chief James Spanier said the current Porter ordinance regulating urban chickens was adopted in 2005 and modeled after Valparaiso’s at that time.
In May, Porter resident Laura Madigan asked that the town allow chickens on smaller residential lots than the current 5-acre minimum. After last night’s meeting she urged supporters of urban chickens to keep coming back.
"I think if more people are concerned about it, it might make a difference if it’s brought up repeatedly,” she said.
Madigan removed her chickens after learning they weren’t allowed on her property because of its size; Tuesday she told the council that chicken owners have no right to conduct an illegal activity, but they do have a right to challenge an unreasonable ordinance.
Also speaking to relax the rules were Eric Joll and Journey Joll; he brought the matter to the council in 2013 but the issue was never revisited.
This time, six residents as well as council members presented opinions on property rights versus municipal zoning, enforcement, fresh eggs for a healthier lifestyle, and whether chickens are pets or farm animals.
Wodrich, a restaurant owner, said he favors two chickens --- no roosters --- with restrictions and registration for a normal lot. He said chicken owners typically are dedicated, although Nelson said history hasn’t always proven that to be the case.
Virtue said it’s an invalid argument that property rights are being denied by not allowing chickens on smaller lots. A town can exercise control over property in a legal manner, she explained, and having chickens is a want, not a right, and no one has the right to conduct illegal activity.
Virtue also noted there is an expense to amending town ordinances and she’s not sure it’s warranted at the request of two families, especially when more people she’s talked to are opposed to or neutral about it than in favor.
Resident Norm Tapper, Madigan’s neighbor, said relaxing the rules regarding chickens would discourage potential buyers of adjacent property resulting in a lower property value; chickens also can carry disease and face being abandoned when they stop laying eggs, according to Tapper.
Madigan said there’s no evidence chickens lower property values, and dogs/cats can be considered nuisances as well, especially if allowed to run. Nevertheless, “You don’t say you can’t have beagles.” Wodrich agreed dogs can present problems for neighbors.
The concerns voiced are appropriate to talk about, said Madigan, but chickens shouldn’t be banned over a theoretical problem with no evidence to back up whether it actually occurs.
Eric Joll said one can get salmonella in a restaurant but they’re not banned. He said the discussion was turning into a pro-chicken and anti-chicken divide when there is a middle ground to be found through good enforcement of sensible regulations.
Resident Milissa Beale said she has 1 acre and her family eats a lot of eggs so she prefers to know where they come from. Chickens also offer the opportunity for 4H interaction. She called for further investigation but said a few chickens on 1 acre isn’t excessive.
Council member Elka Nelson said she did educate herself on the topic, including talking to people who tired of their chickens after a few years. If town rules are relaxed, Nelson predicted it could be an administrative nightmare to enforce new rules like requiring a license to keep chickens with several requirements involved.
Nelson also observed it can be more expensive per-egg when chicken upkeep is factored into the cost than buying organic eggs at the store. “I love grass-fed beef. Can I have a cow in the front yard?” she asked, reminding residents that restrictions as well as rewards come with living in a town.
Virtue asked whether the council wanted to let the current ordinance stand or begin the process of amending it, which would include a future public hearing. Wodrich called for changes, but no one else supported doing so at this time.
Ind. Decisions - 7th Circuit finds a “severely sexualized climate” at the Pendleton state prison.
When a female counselor at Pendleton Correctional Facility complained that some one was using her desk at night, an internal investigation quickly uncovered the truth.
Prison employees working the night shift were having sex on the woman’s desk.
But when the counselor asked the prison’s internal affairs investigator what should be done about the discovery, she was in for yet another surprise.
“I suggest,” the investigator told the counselor, “you wash off your desk every day.”
The exchange is among details in a federal lawsuit filed by the counselor, who, ironically, was fired in 2010 for having sex with a Department of Correction employee on his desk at the prison about 60 miles east of Indianapolis.
In a ruling Monday, a three-judge federal appeals court panel said a district judge in Indiana was wrong to dismiss the discrimination and hostile work environment claims leveled by Connie J. Orton-Bell in connection with her dismissal. The ruling notes a “severely sexualized climate” at the state prison.
The order handed down by the 7th Circuit Court of Appeals panel details the atmosphere inside the prison as “saturated” with sexual comments aimed at female employees and a don’t-ask-don’t-tell attitude toward workers having sex on the job.
Tuesday, July 22, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In U.S. v. Haitham Mohamed (SD Ind., Barker), a 25-page opinion, Judge St. Eve (Amy J. St. Eve, District Judge for the United States Dis-trict Court, Northern District of Illinois, sitting by designation) writes:
On March 26, 2013, a jury convict-ed Haitham Mohamed of one count of knowingly transport-ing and possessing contraband cigarettes in violation of 18 U.S.C. § 2342(a). Mr. Mohamed appeals his conviction, claiming that the district court erred in denying his motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. For the reasons set forth in the following opinion, we agree and reverse the district court’s decision. * * *
We do not believe that Mr. Mohamed’s possession of cigarettes in Indiana under these circumstances is sufficient to support a finding, beyond a reasonable doubt, that Mr. Mo-hamed intended to sell, distribute, or otherwise dispose of the cigarettes in Indiana. * * * Without evidence that Mr. Mohamed intended to sell or otherwise dispose of the cigarettes in Indiana, the government failed to prove beyond a reasonable doubt that Indiana law required the cigarettes to bear Indiana tax stamps. Mr. Mohamed’s conviction, therefore, cannot stand.
For the foregoing reasons, we REVERSE the decision of the district court and REMAND with instructions to enter a judgment of acquittal.
This does not mean that Mr. Mohamed’s conduct necessarily must go unpunished. As Mr. Mohamed has acknowledged, the State could have charged him with a misdemeanor for violating Indiana’s requirements for transporting unstamped cigarettes. See Ind. Code § 6-7-1-19.5. The CCTA, moreover, contains recordkeeping and reporting requirements that apply to the shipment, sale, or distribution of more than 10,000 ciga-rettes in a single transaction, see 18 U.S.C. § 2343, and violations of those requirements also may result in criminal liability. See 18 U.S.C. § 2344(b). We make no comment on whether the government’s evidence at trial would have been sufficient to convict Mr. Mohamed under Indiana state law or under other provisions of the CCTA. We hold only that the evi-dence at trial was not sufficient to support a conviction for violation of 18 U.S.C. § 2342(a).
Courts - "Courts Issue Conflicting Rulings on Health Care Law"
Robert Pear just filed this long NY Times story on today's opinions; it begins:
WASHINGTON — Two federal appeals court panels issued conflicting rulings Tuesday on whether the government could subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange. The decisions are the latest in a series of legal challenges to central components of President Obama’s health care law.
The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the subsidies, saying that a rule issued by the Internal Revenue Service was “a permissible exercise of the agency’s discretion.”
The ruling came within hours of a 2-to-1 ruling by a panel of the United States Court of Appeals for the District of Columbia Circuit, which said that the government could not subsidize insurance for people in states that use the federal exchange.
That decision could cut potentially off financial assistance for more than 4.5 million people who were found eligible for subsidized insurance in the federal exchange, or marketplace.
Ind. Decisions - Court of Appeals issues 6 today (and 3 NFP)
For publication opinions today (6):
In Mark Rolley v. Melissa Rolley, a 21-page opinion, Judge Pyle writes:
Issue. Whether the trial court abused its discretion in granting Mother’s petition to modify child support because the amount of Father’s child support deviated by more than twenty percent from the Child Support Guidelines. * * *In City of Gary v. Review Board of the Indiana Department of Workforce Development and Guadalupe T. Franco, a 17-page opinion, Judge Brown writes:
Because we are not persuaded by Father’s arguments and because the trial court followed the Child Support Guidelines in calculating Father’s modified amount of child support, we conclude that the trial court did not abuse its discretion in its support calculation. Affirmed.
The City of Gary, Indiana (the “City”), appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in connection with Guadalupe Franco’s application for unemployment benefits finding that Franco had been discharged but not for just cause and was entitled to unemployment benefits. The City raises two issues, which we consolidate and restate as whether the record supports the Board’s decision. We affirm.In James K. Melton, Perdue Foods, LLC f/k/a Perdue Farms Incorporated and FPP Business Services, Inc., et al. v. Chad Stephens, Guardian of the Person and Estate of Stacy S. Stephens and Chad Stephens, an 18-page opinion, Judge Riley concludes:
[T]he trial court correctly determined that in the case at bar, the place of the tort has extensive connection with the legal action, and thus, the doctrine of lex loci delicti retains its vitality. We hold that the trial court correctly applied the Hubbard test and concluded that Illinois substantive law governs the action.In Tender Loving Care Management, Inc., d/b/a TLC Management LLC, et al. v. Randall Sherls, as Personal Representative of the Estate of Berdie Sherls, Deceased, a 13-page opinion, Judge Mathias writes:
CONCLUSION. Based on the foregoing, we conclude that the trial court properly held that Illinois substantive law is applicable to a collision which occurred in Illinois between two Indiana residents. Affirmed.
Tender Loving Care Management, Inc., d/b/a TLC Management, LLC, d/b/a Lincolnshire Health Care Center, Inc., d/b/a Riverview Hospital and Lincolnshire Health Care Center, Inc. (hereinafter “Lincolnshire”) appeals challenging the trial court’s judgment denying its motion to compel arbitration in a lawsuit filed by Randall Sherls, as personal representative of the Estate of Birdie Sherls (hereinafter “the Estate”). Lincolnshire challenges the trial court’s conclusion that the arbitration agreement was ambiguous because the parties bound by the agreement are not clearly named.In Robert L. Dixon v. State of Indiana, a 17-page, 2-1 opinion, Judge Riley writes:
The Estate cross appeals and argues that the trial court erred when it concluded that the decedent’s son had the authority to waive the decedent’s right to a jury trial. The Estate also contends that the trial court erred when it determined that the agreement was not an unconscionable adhesion contract.
We affirm in part and reverse in part and remand for proceedings consistent with this opinion.
Dixon raises one issue on appeal, which we restate as: Whether Dixon’s patdown search following a traffic infraction violated his rights under the Fourth Amendment of the United States Constitution. * * *In Steven R. Perry v. State of Indiana, a 7-page opinion, Judge Robb writes:
Under the Terry doctrine, a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has stopped. Nothing in Terry can be understood to allow a generalized cursory search for weapons or indeed, any search for anything but weapons. Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). “The narrow scope of the Terry exception does not permit a frisk for weapons on less than a reasonable belief or suspicion directed at the person to be frisked.” Id. Here, Officer Loudermilk’s actions ostensibly belie the fact that he was concerned for his safety. We reverse the trial court’s decision and remand to the trial court for further proceedings in accordance with this opinion.1
CONCLUSION. Based on the foregoing, we conclude that the trial court abused its discretion when it denied Dixon’s motion to suppress evidence located in violation of Dixon’s Fourth Amendment rights. Reversed and remanded.
ROBB, J. concurs
BRADFORD, J. dissents with separate opinion [which begins, at p. 10] Because I conclude that Officer Loudermilk had sufficient reason to believe that Dixon might have been armed and dangerous during their encounter, I believe that the officer’s pat-down of Dixon was justified by concerns for officer safety. Consequently, I would not suppress the drugs that were subsequently found on Dixon’s person, and I respectfully dissent.
Steven R. Perry appeals the trial court’s denial of his motion for credit time for time spent on electronic monitoring as a drug court program participant. Perry frames the issue as whether Indiana jurisprudence should be modified to adopt a single analysis for awarding credit time for periods of electronic monitoring served regardless of the pretrial or post-conviction status of the defendant. This, rather, is a case of whether the trial court abused its discretion in denying credit time to a person who failed to comply with conditions for participating in a drug court program. Concluding the trial court did not abuse its discretion, we affirm.NFP civil opinions today (1):
NFP criminal opinions today (2):
Ind. Decisions - Supreme Court decides one today, 3-2
In Kenyatta Erkins v. State of Indiana, a 20-page 3-2 opinion, Justice David writes:
Following his conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury, Kenyatta Erkins presents us with a matter of first impression: whether the State must establish the existence of serious bodily injury for his conviction to stand. Without actual serious bodily injury to his alleged victim, he reasons, there is insufficient evidence to support his conviction. However, because conspiracy is a crime consisting of intent to commit an underlying crime, an agreement between or among conspirators to commit the underlying crime, and an overt act by one of the conspirators in furtherance of the agreement, the State needed only to prove these elements beyond a reasonable doubt to support Erkins’s conviction. We find that the State met its burden and affirm Erkins’s conviction.
Erkins also claims that the trial court erred by permitting the State to amend the charging information on the second day of trial to reflect that a co-conspirator, and not he, committed the overt act. However, because the precise identity of the conspirator committing the overt act is not essential to the conspiracy charge, the amendment was one of form and not substance. As the amendment did not impact Erkins’s ability to prepare his defense, we conclude that the trial court did not err in permitting the change. * * *
[I. Amendment to Charging Information] Based on the evidence available to Erkins before the beginning of his trial, it would have come as no surprise to him that the State would attempt to prove that it was in fact Ojile who conducted the surveillance on S.M. inside the Grand Victoria Casino, and the mistaken placement of his name on the charging information would not have affected his ability to prepare his defense. We thus conclude that the State’s amendment was one of form, and that the trial court did not err in permitting it. * * *
[II. Sufficiency of the Evidence] Based on the probative evidence and reasonable inferences supporting the verdict, we conclude that a reasonable fact-finder could find, beyond a reasonable doubt, that Erkins intended and agreed with Ojile to rob and seriously injure S.M. in the course of the robbery, and that Ojile’s surveillance of S.M. at the Grand Victoria Casino and the men’s possession of guns and potential robbery tools at the time of their arrests constituted overt acts in furtherance of their agreement. Thus, sufficient evidence underlies Erkins’s conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury.
Conclusion. While under three different forms of surveillance, Erkins and Ojile expressed their intent and agreement to rob and seriously injure S.M., and the men performed overt acts in furtherance of their agreement. The State therefore presented sufficient evidence at trial to support Erkins’s conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury. And because the particular identity of the conspirator performing the overt act is not essential to the conspiracy charge, the trial court did not err in permitting the State’s amendment of form to Erkins’s charging information. Accordingly, we affirm Erkins’s conviction.
Massa and Rush, J.J., concur.
Rucker, J., concurs in part and dissents in part with separate opinion in which Dickson, C.J., joins.
[J.Rucker's opinion begins, on p 17] The majority declares: “Whether the State must establish the actual existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery resulting in serious bodily injury is an issue of first impression before this Court.” Slip op. at 10 - 11. I agree the precise question has not been previously presented to us. However, our existing case authority as well as familiar tenets of statutory construction compels the conclusion that the State must prove the existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery. I therefore respectfully dissent from the majority’s contrary view.
Central to this discussion is that serious bodily injury is not an element of the offense of robbery. Instead it is a penalty enhancement that increases the class of the offense from a C to an A felony. “The primary purposes of statutorily enhanced penalties for robbery resulting in bodily injury [or serious bodily injury] include deterring those who would commit robbery from in any way harming their victims, and protecting society from those persons who demonstrate the propensity to harm the victims of their crimes.” Payne v. State, 484 N.E.2d 16, 19 (Ind. 1985). In consequence, for the completed offense of robbery the State is required to prove serious bodily injury in order to enhance the offense to a class A felony. * * *
In this case the State failed to prove that Erkins’ conspiracy to rob the victim resulted in serious bodily injury justifying an enhancement. I would therefore vacate his conviction as a class A felony and remand this cause with instructions to enter judgment as a class C felony and to resentence accordingly. In all other respects I concur in the majority opinion.
Dickson, C.J., joins.
[ILB kudos for footnote 4, wherein the majority clearly delineates the issues not vacated in granting the petition to transfer]  Erkins and Ojile also raised issues relating to the admission of evidence gathered after they left the casino, the admission of testimony interpreting the slang used in their phone conversations, and prosecutorial misconduct during closing arguments. Additionally, Ojile asserted that his counsel provided ineffective assistance by failing to argue the defense of abandonment. The Court of Appeals properly resolved each issue, and we summarily affirm those portions of its opinion pursuant to Ind. Appellate Rule 58(A).
Ind. Decisions - 7th Circuit decided a second case July 21st, a reversal
In Orton-Bell v. State of Indiana (SD Ind., Lawrence), a 21-page opinion, Judge Manion writes:
Connie J. Orton-Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton-Bell’s desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning. When the situation was brought to the superintendent’s attention, he agreed and said that, as long as inmates were not involved, he was not concerned either. Immediately thereafter, the superintendent discovered that Orton-Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk) and both were terminated. Both separately appealed their terminations to the State Employees’ Appeals Commission. The prison settled the Major’s appeal and then called him to testify against Orton-Bell at her appeal. This tactic enabled the Major to keep all of his benefits, including his pension, to quickly get unemployment benefits, and to subsequently begin working at the prison as a contractor. Orton-Bell was not afforded similar benefits and opportunities, so she filed this suit alleging Title VII claims of sex discrimination, retaliation, and hostile work environment. The district court granted summary judgment to the state, concluding that Orton-Bell was not similarly situated to the Major, that she failed to prove retaliation under either the “direct” or “indirect” methods, and that the sexual tenor of the prison’s work environment was not severe or pervasive enough to qualify as hostile. We reverse with regard to Orton-Bell’s discrimination and hostile environment claims, but affirm with regard to her retaliation claims. * * *
Because there is evidence that Orton-Bell was similarly situated to Ditmer, but treated less favorably, it was error to grant summary judgment on her discrimination claim. Further, because her supervisors failed to remedy the severely sexualized climate at the prison, it was likewise error to grant summary judgement on her hostile work environment claim. However, because she has failed to show that her complaint about night-shift employees having sex on her desk was rooted in her protected status, it was not a protected complaint, so her retaliation claim fails. Accordingly, we AFFIRM IN PART and REVERSE IN PART and REMAND for further proceedings consistent with this opinion.
Ind. Gov't. - Two stories re INDOT in lawsuits
"Judge rules Monroe County can’t block I-69 work at night" reported Ryan Sabalow of the Indianapolis Star last evening. Some quotes from the story:
For the time being, Monroe County officials won’t be using a noise ordinance to shut down nighttime construction work on the I-69 project."Suit tests INDOT policy of charging for highway repairs" is the heading of a long July 19th IBJ story by Kathleen McLaughlin that begins:
Marion Superior Court Judge David Dreyer issued a preliminary injunction today that allows the Indiana Department of Transportation to resume work on the controversial freeway project at night — beeping backup alarms and all.
Neighbors, some of whom are longtime opponents of the freeway project, had complained to Monroe County officials that those backup alarms and other construction noises were keeping them up at night. The county changed its noise ordinance in response.
Faced with up to $7,500 fines per violation, INDOT’s contractors shut down nighttime work, saying they couldn’t run their equipment and keep workers safe without the backup signals.
INDOT sued, saying it needed to work at night to finish the $100 million section of the freeway on time. INDOT alleged the ordinance violates Indiana’s Home Rule Act, which prevents a county from imposing burdens on the agency or regulating matters that fall under INDOT’s purview.
A trucking company is challenging the Indiana Department of Transportation’s authority to sue for damage to state property, a lawsuit that could affect thousands of motorists and millions of dollars in revenue.Here is the appellate docket in the case, Averitt Express, Inc. v. State of Indiana, et al..
Tennessee-based Averitt Express Inc. brings its case to the Indiana Court of Appeals as INDOT ramps up its efforts to collect for damage to guardrails and other infrastructure. INDOT’s property-damage billing grew more than 50 percent, to $7.1 million, in the fiscal year ended June 30 and covered 4,354 incidents.
Most of those bills are settled out of court by insurance companies, but Averitt’s case went to Putnam Circuit Court. In a summary-judgment ruling early this year, the trial court judge found in favor of the state, which said Averitt owed $59,969 after a 2011 accident that damaged a guardrail and pavement on Interstate 70 and killed Averitt’s driver, John Goins.
Averitt’s attorney at Indianapolis-based trucking specialist Scopelitis Garvin Light Hanson & Feary argued that INDOT’s long-standing policy of collecting for routine highway repairs is illegal because those repairs are already paid for by tax dollars.
Other courts observe the rule that governments cannot recover the cost of routine functions through civil suits when those costs are already funded through taxation, Scopelitis attorney Michael Langford said in his April 21 appeals brief. “This rule expresses the common-sense principle that taxpayers should not be asked to fund the same government functions twice,” he said.
Monday, July 21, 2014
Ind. Decisions - More on: Appellees’ Response to Appellants’ Petition for Initial Hearing En Banc
Earlier this afternoon the ILB posted a link to and briefly discussed the Wisconsin plaintiffs' response to Wisconsin's motion that the initial hearing of Wisconsin's appeal be conducted before an en banc 7th Circuit, rather than before a 3-judge panel.
Here now is the Indiana plaintiffs' brief response to the Indiana Attorney General's motion for an initial en banc consideration.
Ind. Decisions - Appellees’ Response to Appellants’ Petition for Initial Hearing En Banc
The plaintiffs in the Wisconsin same-sex marriage case, which has been joined with the Indiana appeal before the 7th Circuit, today filed their response to Wisconsin's motion that the initial hearing of Wisconsin's appeal be conducted before an en banc 7th Circuit, rather than before a 3-judge panel. Here is the response, thanks to @EQCF. It is 5-pages and worth reading in full; it may say it all.
Ind. Decisions - 7th Circuit decides one Indiana case today
In US v. Donella Locke (SD Ind., McKinney), a 15-page opinion, Judge Rovner writes:
In her second appeal before this court, Donella Locke asks us to reverse the district court’s judgment on sentencing, claiming that the lower court errantly calculated the amount of loss attributable to her conduct. Because Locke waived this issue, we decline to consider the matter and affirm, and in doing so revisit the factors that distinguish loss and restitution. * * *
Although it is true that the application notes to U.S.S.G. 2B1.1 instruct that loss amounts also should be offset by the collateral, the issue of loss had been waived. Had it not been waived, the district court could have considered the evidence about sale of the homes to determine the amount of offset of the collateral, but then the relevant conduct of the unconvicted counts would also have been fair game. Locke cannot argue that the court should have considered evidence to lower the amount of loss, but not to consider conduct that surely would have increased the amount of loss. That smacks of wanting to have one’s cake and eat it too.
Ind. Decisions - Transfer list for week ending July 18, 2014
There were no transfer dispositions last week, and hence, there is no transfer list.
Ind. Decisions - Supreme Court decides one today
In Camoplast Crocker, LLC, The Kelch Corporation, and Seats, Inc. v. Kris Schoolcraft, as Personal Representative of the Wrongful Death Estate of Rickie D. Schoolcraft, Deceased, et al., a 2-page, 5-0 per curiam opinion, the Court writes in full:
The plaintiff sued the original defendant, Magic Circle Corporation d/b/a Dixie Chopper, for wrongful death. Later, on the last day before the applicable two-year limitation period expired, the plaintiff moved to amend the complaint to add new defendants and tendered an amended complaint and summonses for the new defendants. Eleven days later, the trial court granted the plaintiff’s motion to amend. The new defendants then moved to dismiss or for judgment on the pleadings and argued the amendment was too late, outside the limitation period. The trial court denied the new defendants’ motions and certified its ruling for discretionary interlocutory appeal.
The Court of Appeals affirmed in an opinion authored by Judge May and reported as Magic Circle Corp. v. Schoolcraft, 4 N.E.3d 768 (Ind. Ct. App. 2014)[see ILB summary here, 1st case]. The Court of Appeals held the amendment was timely, deciding not to follow A.J.’s Automotive Sales, Inc. v. Freet, 725 N.E.2d 955, 964-66 (Ind. Ct. App. 2000), reh’g denied, trans. denied, which reached a different result under similar facts.
We agree with Judge May’s analysis and the result reached by the Court of Appeals in the present appeal. Accordingly, we grant transfer, expressly adopt and incorporate by reference pursuant to Indiana Appellate Rule 58(A)(1) the Court of Appeals opinion in this case, and affirm the trial court.
Ind. Law - More on "Changes to expungement process poses danger to public"
That was the headline to a story in the May 11th Martinsville Reporter Times; unfortunately it was and remains behind a paywall.
Now it seems that the prosecutor in the adjoining Monroe County shares the concerns. A story headed "Law intended to provide a fresh start draws mixed reviews" appeared in the Sunday, July 13th Bloomington Herald-Times, unfortunately also behind a paywall. From the teaser:
Many people say the trend toward expungement is a good idea, an opportunity for people charged with or convicted of breaking the law to have their criminal slates wiped clean if they stay out of trouble and proceed with their lives in a law-abiding manner.Yesterday, Newsbug.com has an AP version of the Herald-Times story. Some quotes:
Others say the process can demean the criminal justice system by effectively making a person’s bad acts disappear. Asked on a job application about any felony convictions, someone with a successful expungement can respond “no.”
"There is good, and bad, where this law is concerned," Monroe County Chief Deputy Prosecutor Bob Miller told The Herald-Times (http://bit.ly/WfjFPf ). "On the one hand, it provides a sort of amnesty for people who made a mistake when they were younger that has haunted them since in terms of education and employment. That part is a good thing."
But victims can think it's unfair for an offender to clear his record, Miller said.
That's happened in Morgan County, where Prosecutor Steve Sonnega has challenged expungement petitions he doesn't think should be granted.
Sonnega said the positive aspects of the law are often outweighed by the loss of the victim's rights.
He cited one case in which a man charged with sexual battery had a trial where 11 jurors voted to convict and one stood firm on her not-guilty vote. The victim, a child at the time of the crime, didn't want to testify a second time, so the charge was reduced to battery and the man pleaded guilty.
During the perpetrator's expungement hearing earlier this year, the victim testified that she still is haunted by what happened.
"She testified, very powerfully, that she had to live with the consequences of his actions every day and that she believed he should, too — a logical argument from a crime victim," Sonnega said. * * *
Morgan Superior Court Judge G. Thomas Gray, a former prosecutor, said he dislikes the expungement process and objects to a provision that says victims can address the court, but the judge cannot consider their testimony if the expungement fits the statute.
He also objects to a requirement that expungement petitions and hearings be kept confidential.
"It's an oxymoron. You can't allow anyone in the courtroom to hear what they say, and it can't be considered anyway," he said.
Courts - " In U.S. gay marriage cases, children emerge in the limelight"
That is the headline to a lengthy Reuters story this weekend by Joan Biskupic. A few quotes:
(Reuters) - With legal battles over gay marriage simmering across the United States, proponents are showcasing a group they had once sidelined: children.
Lawyers are recruiting same-sex couples who have children, putting interviews with kids as young as seven in court filings, and organizing media events featuring teenagers. * * *
The lawyers’ approach marks a strategic shift from several years ago, when proponents of gay marriage kept the focus away from children, if there were any.
Advocates were wary of provoking negative responses from judges and the public at a time when prevailing opinion was more likely to view children as harmed by gay marriage.
As recently as 2006, when New York and Washington state high courts upheld bans on same-sex marriage, they sided with states that said having gay parents could hurt youngsters. The New York court said, "a child benefits from having before his or her eyes, every day, living models of what both a man and woman are like."
But in the milestone case of U.S. v. Windsor last year, in which the Supreme Court extended federal spousal benefits to same-sex couples, Justice Anthony Kennedy - a moderate conservative appointed by President Ronald Reagan - turned that around. In the majority opinion he wrote that the federal law that denied benefits to same-sex couples “humiliates” tens of thousands of their children.
In a separate dispute, involving California's former ban on gay marriage known as Proposition 8, Kennedy said during oral arguments that the 40,000 children in California who live with same-sex parents "want their parents to have full recognition and full status.”
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Hi-Tec Properties, LLC v. Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier, a 17-page opinion, Judge Crone writes:
Hi-Tec Properties, LLC (“Hi-Tec”), appeals the trial court’s denial of its motion to correct error following a jury verdict and award of compensatory and punitive damages entered in favor of Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier (collectively “Plaintiffs”) on their claims for negligence, breach of contract, and fraud against Hi-Tec. Hi-Tec filed a motion to correct error claiming, in essence, that the jury verdict and resulting award of damages was improper and unsupported by the evidence. The trial court denied the motion, and Hi-Tec appealed. Finding a portion of the compensatory damages award to be unsupported by the evidence, we reverse that portion of the award and remand to the trial court with instructions for revision. We affirm the trial court in all other respects.In James Giles, Individually and as Executor of the Estate of Ruth Giles, deceased v. Anonymous Physician I, Anonymous Corporation I, Anonymous Hospital I, Anonymous Physician II, et al., a 14-page opinion, Judge Pyle writes:
This appeal involves a preliminary determination in a medical malpractice case filed in the county court while the case was pending before the Indiana Department of Insurance (“IDOI”). Anonymous Physician I (“Hospitalist”) and Anonymous Corporation I (“Medical Corporation”)—after being sued by James Giles (“Giles”), individually and as executor of the estate of Ruth Giles, deceased (“Ruth”)—moved for summary judgment on the basis that Hospitalist owed no duty to Ruth because he did not treat her or have a physician-patient relationship with her. Giles now appeals the trial court’s order granting summary judgment to Hospitalist and Medical Corporation. We affirm.NFP civil opinions today (2):
NFP criminal opinions today (3):
Law - "Ag-gag laws facing federal court challenges nationally"
From the IBJ/AP, this long July 20th story that begins:
The years-long fight between farm organizations and animal rights activists over laws prohibiting secretly filmed documentation of animal abuse is moving from state legislatures to federal courts as laws in Utah and Idaho face constitutional challenges.
Half of U.S. states have attempted to pass so-called ag-gag laws, but only seven including Indiana have been successful.
Indiana's proposed ag-gag law was scaled back considerably before receiving Gov. Mike Pence’s signature earlier this year. It makes trespassing on the production area of a farm a criminal offense and causing property damage to a farm an act of criminal mischief.
Among the other states with ag-gag statutes are Idaho, where the law says unauthorized recording is punishable by up to a year in jail and a $5,000 fine, and Utah, whose 2012 law makes it a crime to provide false information to gain access to a farm.
Both states now face separate but similarly worded lawsuits that say the measures violate federal statutes offering whistleblower protections and free-speech guarantees.
Ind. Gov't. - Intent of the drafters of the current constitutional provision re the Superintendent of Public Instruction
The ILB has seen several references recently to this ILB post from Dec. 5, 2012, discussing the thinking behind the change to Art. 8, Sec. 8 of the Indiana Constitution, ratified by the voters in 1972.
From 1851 to 1972, the provision provided that the General Assembly should "provide for the election" of the State Superintendent of Public instruction.
The new language, ratified in Nov., 1972, provides that the Superintendent's "method of selection, tenure, duties and compensation shall be prescribed by law."
The 2012 ILB post then goes on to quote at length from the report of the drafters of the constitutional change, the 1969 Constitutional Revision Commission, including:
Effect of the Proposed AmendmentSee the 2012 post itself for more.
The effect of the Commission's proposed amendment to Article 8, section 8, would be to grant to the General Assembly the authority, should it choose to exercise it, to change the term of office and/or the method of selection of the Superintendent of Public Instruction.
Should the General Assembly choose to exercise the authority to change the length of the term of office of the Superintendent, it is most likely that the term would be lengthened to four years. Such a lengthening of term seems most advisable to the members of the Commission.
Should the General Assembly choose to change the method of selection of the Superintendent of Public Instruction, it seems likely that the change would be from state-wide election to appointment, either by an elected state board of education created by the General Assembly, or by the Governor. Such a change would serve to insure that the head of our State's educational system would be a person qualified in the areas of education and administration.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 7/21/14):
- No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 7/28/14):
- No oral arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 7/14/14):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 7/28/14):
- No oral arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, July 20, 2014
Ind. Decisions - Indiana's Anticipatory Motion for Stay of Judgment Pending Appeal in pending same-sex marriage lawsuit
Of the five same-sex marriage cases filed in Indiana federal court in March, one, Bowling v. Pence, has not yet been decided by Judge Young.* Here is the complaint in that case, which seeks recognition of same-sex marriage performed in other jurisdictions. Last Monday, July 14th, the Indiana Attorney General filed this "Anticipatory Motion for Stay of Judgment Pending Appeal." (h/t Equality Case Files), that begins:
In anticipation of final judgment against one or more of them, and pursuant to Federal Rule of Civil Procedure 62(c), Defendants Michael Pence, Greg Zoeller, Michael Alley, and Anita Samuel respectfully move this Court to stay the enforcement of all judgments, injunctions, and declaratory or other relief contemporaneously with the issuance of this Court’s final judgment, pending appeal to the United States Court of Appeals for the Seventh Circuit. A stay in this case is warranted because on June 27, 2014, the Seventh Circuit stayed this Court’s final judgment, including all injunctive and declaratory relief granted by this Court, in the related cases Baskin v. Bogan , No. 1:14-cv-355-RLY-TAB, Fujii v. Governor , No. 1:14-cv-404-RLY-TAB, and Lee v. Pence , No. 1:14-cv-406-RLY-MJD. See Baskin, et al. v. Bogan, et al. , Nos. 14-2386, 14-2387, 14-2388 (7th Cir. June 27, 2014) (order granting stay of all relief and ceasing recognition of all same-sex marriages in Indiana pending appeal)._____
* In Love v. Pence, Judge Young dismissed the suit on June 25th (the same day that he ruled in the three others), on the basis that Gov. Pence was not the appropriate defendant.
Friday, July 18, 2014
Environment - Comment period for EPA/Army Corps proposed rules to define ‘‘waters of the United States’’ ends Monday, July 21
Here is the 88-page proposal, which has this summary:
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act (CWA), in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). This proposal would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of "waters of the United States" protected under the Act.Governing has a July 18th article on the proposal by Daniel C. Vock, headed " Local Governments Divided over New Clean Water Rules: After court rulings muddied up the law, new federal rules seek to clarify which bodies of water have to abide by the Clean Water Act."
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (4):
In In re: The Visitation of A.W., J.W. v. State of Indiana (NFP), a 6-page opinion, Judge Bailey writes:
J.W. (“Mother”) purportedly appeals the denial of her motion to correct error, which challenged an order granting Mother’s father (“Grandfather”) grandparent visitation with Mother’s child, A.W. (“Child”). The Attorney General of Indiana intervened to defend the constitutionality of the Grandparent Visitation Act, Indiana Code section 31-17-5-1, et seq. (“the Act”). We dismiss.NFP criminal opinions today (3):
Mother contends that the Act violates the Equal Protection Clause of the United States Constitution and that the trial court erroneously entered a visitation order without requisite findings of fact. We address a single, dispositive issue raised by the State on cross-appeal: whether Mother’s appeal is untimely.
Ind. Decisions - Tax Court discovery orders discussed
Faegre Baker Daniels attorney Brent Auberry had an interesting post July 15th headed "The Gambler Breaks Even: Tax Court Orders Indiana Department Of Revenue To Answer Discovery Requests But Denies Taxpayer’s Second Motion To Compel In Income Tax Appeal," opening with: "The Tax Court does not often address discovery issues in published decisions and orders."
Ind. Law - In Indy, " Confusing laws vex Indiana drivers, cyclists"
Brian Easton had this story July 15th in the Indianapolis Star. A few quotes:
State law generally puts the burden on motorists to "exercise due caution" to avoid vulnerable road users. But it can be confusing for motorists what a cyclist is planning to do — and Worland said "rogue cyclists" who break the rules of the road make it that much more difficult for the two sides to get along.ILB: My biggest issue is cyclists who don't stop at red lights. One specific problem I've experienced twice when making a right turn on red, after carefully checking traffic and with my right turn signal on, has been having a cyclist appear out of nowhere from behind me, on the sidewalk to my right, and zoom through the red light just as I have been half-way through the right turn.
"That means stop at stop signs, stop at red lights ... there are a lot of cyclists that don't do that," Worland said. "It gives cyclists who are serious about it a bad rap."
Law - In Chicago, "Red light cameras tag thousands for undeserved tickets"
David Kidwell and Alex Richards of the Chicago Tribune have a very long story today that begins:
Thousands of Chicago drivers have been tagged with $100 red light fines they did not deserve, targeted by robotic cameras during a series of sudden spikes in tickets that city officials say they cannot explain, a Tribune investigation has found.
The Tribune's analysis of more than 4 million tickets issued since 2007 and a deeper probe of individual cases revealed clear evidence that the deviations in Chicago's network of 380 cameras were caused by faulty equipment, human tinkering or both.
Chicago transportation officials say they had no knowledge of the wild swings in ticketing until they were told by the Tribune — even though City Hall legally required the camera vendor to watch for the slightest anomaly in ticketing patterns every day. Many of the spikes lasted weeks.
The lack of oversight raises new questions about the controversial traffic enforcement program, the largest in the country, now embroiled in a federal corruption probe into allegations that the city's longtime red light camera manager took bribes from the camera company.
"Something is terribly amiss here," said Joseph Schofer, an associate dean at Northwestern University's McCormick School of Engineering and Applied Science who reviewed the Tribune's research.
Environment - "DC Circuit upholds Obama's crackdown on mountaintop mining"
Last Friday Jeremy P. Jacobs and Manuel Quiñones reported for E&E in a long story beginning:
A federal appeals court today sided with U.S. EPA in a broad challenge from two states and the mining industry to controversial Obama administration policies aimed at addressing the environmental effects on waterways of mountaintop-removal coal mining.The story links to the opinion in Nat'l. Mining Ass'n. v. Gina McCarty.
The ruling from the U.S. Court of Appeals for the District of Columbia Circuit is a major win for the administration and reverses a lower court ruling siding with West Virginia, Kentucky and a host of mining interests.
Ind. Decisions - Supreme Court Clears a Possible Minefield for Real Estate Sellers
Yesterday's Supreme Court opinion in Gayle Fischer v. Michael and Noel Heymann (ILB summary here) is the subject of a long post today by Michael Smith in the Indiana Business Law Blog, headed "Anticipatory Breach and Mitigation of Damages revisited: The Indiana Supreme Court Clears the Minefield." A sample:
When one party breaches a contract, the other party is entitled to damages sufficient to put the non-breaching party in the same position it would have occupied had the contract been performed. However, the non-breaching party must use reasonable efforts to mitigate the damages. This case illustrates the concept nicely. The original purchase price was $315,000. Sometime later, Fisher received, but rejected, an offer of $240,000. Ultimately, she sold it for $180,000. The trial court found (and the Supreme Court affirmed) that Fisher acted unreasonably when she rejected the offer of $240,000. Accordingly, the most she could recover was the difference between $315,000 and $240,000, not the difference between $315,000 and $180,000. The question, however, is whether the doctrine of mitigation of damages required Fisher to comply with the Heymans' demand to have the electrical problem fixed. If so, she would be able to recover only $117, the amount it cost her to fix the electrical problems. Last year, the Court of Appeals said yes.
Today, Supreme Court said no, agreeing with Judge Cale Bradford of the Court of Appeals. In his dissenting opinion, Judge Bradford reasoned that the doctrine of mitigation of damages does not require the non-breaching party to accede to a demand that creates a breach. The Supreme Court agreed with that reasoning and elaborated that, just as a non-breaching party may not put itself in a better position than it would have been had the contract been performed as agreed, neither can the breaching party. Here, the buyers agreed to pay $315,000 for a condo that had minor electrical problems (if tripped ground fault interrupters and burnt out light bulbs can be considered "problems"), and the seller was not obligated to sell them a condo with no electrical problems for the same price. Result: The Heymans owed Fisher not $117, but more than $90,000.
Environment - "Rogers Group gains permit for proposed Americus quarry"
WLFI's Dan Klein reported July 16th:
AMERICUS, Ind. (WLFI) — The Rogers Group, which hopes to build a quarry near Americus, clears one more step in the approval process from the state.Here are earlier ILB posts on the Americus quarry.
The Indiana Department of Environmental Management has issued a permit allowing wastewater associated with the quarrying operation to go into the Wabash River as well as an unnamed tributary nearby. The permit expires in 2019.
Ind. Courts - Disciplinary Commsion releases latest report
The Indiana Supreme Court Disciplinary Commission, which is responsible for investigating and prosecuting claims of misconduct against lawyers licensed to practice law in Indiana, has released its latest annual report. Note that it covers the period from July 1, 2012 through June 30, 2013.
Ind. Gov't. - "Lake County to snitch on reckless drivers to insurance firms"
Bill Dolan reported yesterday in the NWI Times in a story that begins:
CROWN POINT | Lake County officials are now in the business of sharing residents' latest traffic violations with their insurance companies.Later in the story:
The Lake County Board of Commissioners approved an agreement Wednesday to sell court records to an East Coast data-mining firm that, in turn, will supply it to insurers that use it to impose surcharges on reckless drivers.
Mark Pearman, executive director of county government's information technology department, said Driver's History Information of Cherry Hill, N.J., becomes the third private company authorized to extract bulk data from the county's electronic court database.
He said Driver's History will pay a one-time $1,000 fee to initially tap into the records system, $1,500 a month for continuing records access and 10 cents for every one it pulls over a 1,500-records limit per month.
All other data-mining firms have been paying a similar rate for years. The money goes into a fund used to support the court's electronic record system.
Pearman said the State Court Administrator must approve any private firm wishing to extract data from Indiana courts as well as approval from local judges and county officials.
Chief Lake Superior Court Judge John Pera said Wednesday he is satisfied the Driver's History agreement conforms with state law.
He said the firm only has access to public records anyone could request and see in the county clerk's office. He said no private records or identification numbers are released.
Ind. Gov't. - More on: State Board of Accounts investigating Evansville City Councilwoman
A special prosecutor has been appointed in the case of Evansville City Councilwoman Stephanie Brinkerhoff-Riley.
Gibson County Prosecutor Robert Krieg tells 14 News that he is looking into the case.
Krieg said, "This incident occurred in Vanderburgh County but Prosecutor Nick Hermann requested a special prosecutor. Judge Tornatta is handling the matter and appointed me as special prosecutor in the case. This remains a Vanderburgh County matter and it will be handled there just like any other case with the exception that I, as Gibson County Prosecutor, will handle the case and have the jurisdiction to do so due to the appointment by Judge Tornatta," he said.
The investigation began after Brinkerhoff-Riley, then Evansville City Council Vice President, admitted to secretly recording a confidential meeting about the city audit.
She released that recording to the public.
Brinkerhoff-Riley remains on council, but resigned from the VP position.
The Indiana State Police are investigating the case. Krieg tells 14 News it was assigned to Special Investigations Detective Jan Kruse at the ISP Bloomington Post.
Thursday, July 17, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Smith (ND Ind., Van Bokkelen), an 11-page opinion, Judge Rovner writes:
Garrett Smith pleaded guilty to a charge that he possessed with the intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), and the district court ordered him to serve a prison term of 168 months. Despite having expressly waived his right to appeal the sentence in his written plea agreement, Smith nonetheless has appealed, contending that he was deprived of the effective assistance of counsel when his counsel failed to challenge the district court’s finding that he was a career offender. Smith urges us to overlook the waiver on the ground that his attorney’s alleged ineffectiveness at sentencing was “patent.” We enforce the appellate waiver and dismiss the appeal. * * * ,p> Smith knowingly and voluntarily waived his appellate rights, including his right on appeal to contend that his counsel below was ineffective as to any matter other than the waiver and his negotiation of it. He is, consequently, barred from pursuing the instant appeal. The appeal is therefore DISMISSED.
Ind. Decisions - An amicus brief supporting AG Zoeller's position in the same-sex marriage cases [Updated]
Yes indeed, an amicus brief supporting AG Zoeller's position in the same-sex marriage cases has just been filed in the 7th Circuit. After a quick look, however, I doubt that the Attorney General or his client, the State of Indiana, is really happy for the support.
Here is the argument, as summarized in the table of contents on p. 2:
The district court decision would allow a man to marry his elderly mother. There is no possibility that the Framers intended the Constitution and its Amendments to give a man the right to marry a blood relative or a man ........ 5The amicus brief is 32-pages long and filed by an attorney in Connecticut.
Legislatively enacted same-sex marriage is less likely to lead to incestuous marriage than court-ordered same-sex marriage is .................. 18
Same-sex marriage diminishes heterosexual marriage and misleads people, especially children and adolescents, about reproductive biology ...... 20
[Updated at 6:58 PM] The 7th Circuit has just sent a brief deficiency letter sent to the Connecticut amicus.
Here, BTW, is the 7th Circuit's brief filing checklist.
Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)
For publication opinions today (4):
In Moran Electric Service, Inc., and Threaded Rod Company, Inc. v. Commissioner, Indiana Department of Environmental Management, City of Indianapolis, Ertel Manufacturing Corp., 6-page opinion on a motion for rehearing, Judge Barnes writes:
The Indiana Department of Environmental Management (“IDEM”) and the City of Indianapolis (“the City”) have filed a joint request for rehearing from our opinion in Moran Elec. Serv., Inc. v. Comm’r, Indiana Dep’t of Envtl. Mgmt., 8 N.E.3d 698 (Ind. Ct. App. 2014). We grant rehearing to acknowledge and address some of their rehearing arguments, but we reaffirm our original decision in all respects.In Todd DeWayne Kelly v. State of Indiana , a 6-page opinion, Judge Bradford writes:
On appeal, Kelly contends that the State did not present sufficient evidence to sustain his conviction for Class A misdemeanor invasion of privacy. We affirm. * * *In Clyde Davis v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
In the instant matter, the State presented clear evidence that Kelly indirectly communicated with S.B. During trial, the trial court heard evidence that Kelly texted L.K. stating, “contacting court next week, if you see your mom tell her I said rattle, rattle, rattle.” Oct. 8, 2013 Tr. p. 44. Unlike the third party in Huber, L.K. did not tell Kelly that she would not give the message to S.B. Instead, L.K. immediately showed the text to S.B., with whom she lived. S.B. read the message and believed it was threatening and meant to intimidate her because Kelly had used the phrase “rattle, rattle, rattle” as a way of intimidating S.B. when she and Kelly were still married. Oct. 8, 2013 Tr. p. 30. Further, at some point before trial, Kelly again communicated “rattle, rattle, rattle” to S.B. via Facebook. Oct. 8, 2013 Tr. p. 29. The above-stated evidence is sufficient to sustain Kelly’s conviction. Kelly’s claim to the contrary effectively amounts to an invitation for this court to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.
Clyde Davis appeals from his conviction for Class B misdemeanor public intoxication. On appeal, Davis contends that the State failed to provide sufficient evidence of endangerment. We reverse. * * *In Carlin Graffenread v. State of Indiana, a 7-page opinion, Judge Barnes writes:
The common thread in these cases is past or present conduct by the defendant did or did not place life in danger. While the statute does not require that actual harm or injury occur, some action by the defendant constituting endangerment of the life of the defendant or another person must be shown. This is true even where an officer testifies that the defendant was a danger to himself or others. See, e.g., Sesay, 5 N.E.3d at 479. Were it otherwise, citizens could be convicted for possible, future conduct. The policy behind the current public intoxication statute is to encourage intoxicated persons to avoid danger by walking or catching a ride rather than driving. Stephens, 992 N.E.2d at 938. Although we acknowledge that intoxicated persons may also create danger by walking in public places, that danger must have manifested itself in order for the State to obtain a conviction.
In the instant case there was no such past or present conduct by Davis that amounted to endangerment of his or another’s life. * * *
Although the State argues that Davis was in danger of being struck by a car if he left the apartment complex, the argument is merely speculative, not proof beyond a reasonable doubt. Appellee’s Br. 4, 9. The State may not convict Davis for what would or could have happened. Reversed.
The sole issue before us is whether Indiana Code Section 35-48-4-12 allows for the deferral of a dealing in marijuana charge. * * *NFP civil opinions today (1):
We conclude that the language of Indiana Code Section 35-48-4-12 is clear and unambiguous on its face and does not run afoul of double jeopardy or collateral estoppel. We therefore must not expand or restrict what the statute clearly and plainly expresses. The statute’s conditional deferment and dismissal clearly applies only to first time offenders who are charged with possession of marijuana, hashish, salvia, or a synthetic drug. There is no language within the statute to indicate that the legislature intended to include within the statute greater offenses that might include possession as an element. The legislature chose to allow leniency for some drug possession charges, but not drug dealing charges.
NFP criminal opinions today (2):
Ind. Decisions - Supreme Court decides one today, re breach of real estate contract
In Gayle Fischer v. Michael and Noel Heymann, a 9-page, 5-0 opinion, Justice Rush writes:
This is the second appeal in protracted litigation over the breach of a real-estate sales contract. The first appeal established that Buyers breached the contract when they unreasonably demanded that Seller fix a minor electrical problem as a condition of purchase. In this second appeal, we granted transfer to consider whether the trial court acted within its discretion in calculating Seller’s damages. Both parties appealed the trial court’s findings regarding Seller’s efforts to mitigate her damages. Seller argues that her efforts were reasonable and justify a full award. Buyers argue Seller failed to mitigate her damages in two ways: 1) by failing to respond to their demand for electrical repairs and thus preserve the contract, and 2) by failing to accept a substitute offer to purchase the property after the agreement fell through. The trial court disagreed with Buyers’ first argument but agreed with the second, and reduced Seller’s damages accordingly. We hold the trial court was within its discretion to reach this conclusion, and therefore affirm the award of damages and attorney fees. * * *
The record supports the trial court’s findings and conclusions on Fischer’s duty to mitigate. The trial court acted within its discretion by finding that Fischer could have mitigated her damages by selling the condo in 2007 instead of waiting until 2011, and in refusing to find that her duty to mitigate required yielding to the Heymanns’ breach. The trial court also acted within its broad discretion in determining reasonable attorney fees and costs based on the results that Fischer achieved in this litigation. We therefore affirm the trial court’s award of $93,972.18.
Dickson, C.J., and David and Massa, JJ., concur.
Rucker, J., concurs in result.
Environment - More on: Right to Farm Act prevails in Randolph County lawsuits
Updating the ILB post from yesterday, which included Judge Vorhees' ruling in Armstrong v. Maxwell Farms, three other similar orders on summary judgment motions were also filed by the judge on July 10, all with the same results (each one differs slightly but all come to the same result), granting defendant Maxwell Farms' motion for summary judgment on the basis that the Indiana Right to Farm Act was constitutional and that it barred plaintiff' nuisance claims: Pegg, et al v. Maxwell Farms, Neudecker v. Maxwell Farms, and Williams v. Maxwell Farms.
Gary Baise, a law school classmate of mine, who practices farm law nationally out of his Washington DC firm, was lead attorney for Maxwell Farms. Mary Ramey and Richard Hailey of Indianapolis represented the plaintiffs.
The Right to Farm Act. Per the opinions, these cases were decided under Indiana's 1981 statute, which the legislature amended in 2005, IC 32-30-6-9. A key paragraph of each ruling, which appears as para. #29 of the Armstrong opinion, reads:
Plaintiffs have argued the increased size and scope of the current swine operations constitutes a new and different use. This is not correct under Indiana law. The Court must read the statutory language, which is unambiguous, and apply it as written. The Indiana Legislature had to know in 2005, when it amended the Right to Farm Act, that the number of animals being confined in swine and dairy operations was growing exponentially, and yet the Legislature did not give neighbors surrounding the operations any relief. In 2005, the Legislature made the Right to Farm Act even more restrictive to potential lawsuits. The Legislature has made its intent known to protect farming operations against nuisance actions, even if the operation grows from a few hogs to several thousand, and even if the operation changes from growing com to raising thousands of hogs.Interestingly, Indiana now has two Right to Farm acts, plus there have been efforts to add it to the Indiana Constitution.
In the 2014 session, legislation was introduced to, as the ILB wrote on Jan. 14, 2014, put "right to farm" in the Indiana Code, again. (The ILB's Jan. 14th post is well worth rereading.)
The Indiana Code shall be construed to protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.
Ind. Decisions - 7th Circuit asks for answers to the requests for en banc consideration
In a filing yesterday, Wisconsin filed its own request for en banc hearing before the 7th Circuit on the same sex marriage cases.
Today, the 7th Circuit issued this one-page order re the Indiana and Wisconsin petitions:
Petitions for Initial Hearing En Banc were filed by counsel for the appellants on July 11, 2014, in appeal nos. 14‐2386, 14‐2387, and 14‐2388 and on July 16, 2014, in appeal no. 14‐2526.
Counsel for the appellees in each appeal are requested to file an answer to the Petitions for Initial Hearing En Banc by July 23, 2014. Counsel shall file thirty (30) copies of the answer, which shall not exceed fifteen (15) pages. Fed. R. App. P. 40(b). The cover of the answer, if used, must be white. Fed. R. App. P. 32(c)(2)(A).
Ind. Courts - Supreme Court has filled two advertised positions
First, as the ILB posted on June 26th, the position of Deputy Clerk, the job Heather Smith (now Clerk in Kansas) formerly held, has been filled. This April 29th ILB post reported the announcement of the opening.
Second, on Sept. 25, 2013, the Supreme Court announced a new position that intrigued many:
The Indiana Supreme Court is seeking applicants for a new position which will provide counsel to the Chief Justice in fiscal and operational matters and assist the Chief Justice in various administrative duties. A job description can be found at [ILB: no longer available] which gives details as to the expected duties and responsibilities.In reponse to an inquiry from the ILB on July 10th, saying that I had heard that both positions have been filled, but that I may have missed the announcement, the ILB received this prompt note from the Supreme Court's public information office:
Minimum qualifications are admission to legal practice and good standing, with at least 5 years of Indiana law practice. Due to the financial and business responsibilities, preference will be given to candidates who are also a CPA, have an MBA, or significant business experience.
Essential skills for the position include good communication skills and experience, strong working knowledge of Microsoft Word, PowerPoint, and Outlook products, and ability to create and manipulate spreadsheets, database programs, and work with numbers and financial calculations.
This is an unclassified executive position; the salary will range from $85,000.00 to $110,000.00, depending on experience and strengths. General state benefits apply.
The deadline for applying for this position is October 31, 2013.
Here is some information on these two positions. We do not write press releases for most hires — so you did not miss anything. I have you on our regular media distribution list.
Fenton D. Strickland is the new Counselor to the Chief Justice for Finance and Operations. He brings a high degree of finance and legal training and experience. Fenton is a Summa Cum Laude graduate of the Indiana University Robert H. McKinney School of Law with an undergraduate accounting degree from Indiana University. He is a CPA (inactive) and has over ten years of experience serving several businesses in various financial roles, including assistant controller, cost accounting manager, corporate finance supervisor, and accountant. After law school and following two years serving as a law clerk to Justice Brent Dickson, Fenton joined the Indianapolis law firm of Faegre Baker Daniels LLP as a member of the Tax Advocacy practice group representing clients ranging from sole proprietorships to multinational corporations.
Gregory R. Pachmayr is the new Deputy Clerk of Courts. He earned his JD and MPA from IU-Bloomington. He served with the Peace Corps in South Africa for two years before going to law school. Gregory most recently served as the Director of the Board of Pharmacy at the Indiana Professional Licensing Agency.
Wednesday, July 16, 2014
Ind. Decisions - 7th Circuit decides a second Indiana case today
In U.S. v. Mosley (ND Ind., Moody), an 11-page opinion, Judge Manion concludes:
The district court erred by failing to balance Mosley’s constitutional interest in confronting and cross-examining Simmons with the government’s reasons for not producing her. But that error was harmless because the result would have been the same even without any of Simmons’s out-of-court statements. Accordingly, we AFFIRM the judgment of the district court.