Tuesday, April 22, 2014

Ind. Courts - Documents filed yesterday in Lee v. Pence, the same-sex marriage recognition suit by Indiana police officers and retired firefighters

As promised earlier today, here are the documents filed by the plaintiffs yesterday in the case of Lee v. Pence:

  • Motion for Summary Judgment (#27) plus Memo in Support (#28)

  • Motion for Preliminary Injunction (#29) plus Memo in Support (#30)

  • Motion to Consolidate (#31)
Plaintiffs' brief in support of their motion for summary judgment begins:
Plaintiffs are entitled to summary judgment because the Defendants have violated the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs consist of four same-sex couples lawfully married in states other than Indiana. For the purposes of this litigation, the Plaintiffs do not ask the Court to order the State of Indiana to issue marriage licenses to the four couples, who have been lawfully wed in other states. Plaintiffs ask only that Indiana recognize their out-of-state marriages as possessing the same validity as out-of-state marriages between persons of different sexes. Plaintiffs ask the Court to negate Indiana’s presumed power to treat their marriages as null and void. In short, Plaintiffs ask the Court to vindicate their right to remain married.

Plaintiffs, all legally married in other states, are the victims of the discriminatory intent and effect of I.C. § 31-11-1-1 (referred to hereinafter as the “Marriage Non-Recognition Law” or the “Non-Recognition Law”). The Plaintiffs’ right to have their marriages recognized by Defendants, i.e., to stay married while in the State of Indiana, is a fundamental interest protected by the Equal Protection and Due Process Clauses. The State may only burden the exercise of Plaintiffs’ right to remain married when it has a compelling interest, and by means narrowly tailored to achieve that end. But there is no compelling or even substantial interest here. Indeed, Plaintiffs defy the Defendants to identify a single legitimate state interest that is rationally related to the Marriage Non-Recognition Law. * * *

The Plaintiffs include four married same-sex couples who ask that their lawful marriages solemnized outside of Indiana be recognized by the Indiana Public Retirement System ("INPRS"), which administers the 1977 Police Officers' and Firefighters' Pension and Disability Fund ("Pension Fund"). One member of each of the four couples is either currently working as a police officer or is a retired firefighter.

Posted by Marcia Oddi on April 22, 2014 04:48 PM
Posted to Indiana Courts

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

For publication opinions today (3):

In Shelly Bailey v. Lance Bailey, a 12-page, 2-1 opinion, Judge Barnes writes:

The sole issue we address is whether the trial court erred in modifying custody when neither party requested a modification of custody. * * *

In sum, Mother’s agreement that the trial court could enter a Parallel Parenting Order was in no way a concession that the trial court could modify the children’s physical custody to joint custody. Neither Mother nor Father ever filed a petition requesting a change in custody. Furthermore, neither party gave any hint during the evidentiary hearing that he or she desired a change in custody. * * *

We therefore conclude the trial court abused its discretion in sua sponte modifying physical custody of the children. * * *

We reverse the trial court’s modification of physical custody of the children and remand for the trial court to make all necessary corrections to its May 23, 2013 order to reflect this reversal, including its recalculation of Father’s child support obligation. The Parallel Parenting provision of that order may remain in effect, on condition that it is revised to reflect Mother’s primary physical custody of the children and Father’s scheduled visitation. Reversed and remanded.

CRONE, J., concurs.
BAKER, J., dissents with separate opinion. [which begins, at p. 10] I respectfully dissent. As acknowledged by the majority, “[c]ounsel for Mother agreed that the trial court had [the] power” to enter a parallel parenting time order based on the pleadings.

In In the Matter of the Adoption of B.C.H., a Minor, an 18-page opinion with a concurring opinion, Judge Pyle writes:
T.H. (“Grandfather”) and C.H. (“Grandmother”) (collectively, “Grandparents”) appeal the trial court’s order denying their motion for relief from judgment and motion to correct error concerning their son-in-law’s (“Stepfather”) adoption of their minor granddaughter, B.C.H. We affirm. * * *

MATHIAS, J., concurs in result with opinion.
BRADFORD, J., concurs.

[J.Mathias concurring opinion begins on p. 17] Because I would conclude that Stepfather was required to obtain Grandparents’ consent to his adoption of B.C.H. pursuant to Indiana Code section 31-19-9-1(a)(3), but that Grandparents had actual notice of the adoption proceedings and did not attempt to contest the adoption, I concur in result. * * *

Although Grandparents’ consent to the adoption was not sought, Grandparents had actual notice that Stepfather had initiated adoption proceedings. But Grandparents failed to intervene in or to contest the adoption proceedings; therefore, I would hold that Grandparents cannot challenge the decree of adoption at this late date. For this reason, I concur in the result reached by the majority.

In Randy E. Black v. State of Indiana, a 12-page opinion, Judge Barnes writes:
Randy Black appeals his conviction for Class C felony forgery.

Black raises two issues, which we restate as: I. whether the trial court erred by not ruling on Black’s pro se request for an early trial; and II. whether trial counsel was ineffective for not pursuing an early trial. * * *

Black has not established that the trial court was required to respond to his pro se motion for an early trial or that trial counsel was ineffective for failing to pursue and early trial or discharge. We affirm.

NFP civil opinions today (1):

State of Indiana, Indiana Bureau of Motor Vehicles, and Kent Schroder as Commissioner of Moter Vehicles v. Matthew E. Patty (NFP)

NFP criminal opinions today (3):

Desmond E. Lewis v. State of Indiana (NFP)

Corey Bates v. State of Indiana (NFP)

Conway Jefferson v. State of Indiana (NFP)

Posted by Marcia Oddi on April 22, 2014 11:24 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Lake County "Judicial vacancy draws crowd of applicants"

Bill Dolan of the NWI Times reports:

CROWN POINT | Some 21 attorneys, several with judicial experience, have applied to fill a vacancy in the Lake Superior Court, Civil Division.

The Lake County Judicial Nominating Commission, a panel of lawyers and lay people, will hold interviews of all applicants May 7 and 8. They will select three finalists whose names will be forwarded to Gov. Mike Pence, who is expected to name the new judge from among them early this summer.

Court Room 4's bench has been vacant since the Jan. 8 death of Judge Gerald Svetanoff. Senior Judge Thomas Webber is presiding until the governor selects a permanent replacement.

See the story for the 21 names.

Posted by Marcia Oddi on April 22, 2014 11:09 AM
Posted to Indiana Courts

Courts - "SCOTUS Affirms Michigan Ban On Race-Conscious College Admissions"

Scott Neuman of NPR has this story on the decision this morning in Schuette v. Coaltion to Defend Affirmative Action.

Adam Liptak of the NY Times has this story.

Posted by Marcia Oddi on April 22, 2014 11:01 AM
Posted to Courts in general

Ind. Decisions - The status of the five Indiana same-sex marriage cases

Updating this ILB post from yesterday, here is a longer version of Charles Wilson's story for the AP. Some quotes:

In the 11-page order issued Friday, Young said he granted the request partly because the couple is likely to succeed in having Indiana's gay marriage ban declared unconstitutional. He also said that Quasney's terminal illness required urgent action.

"The Equal Protection Clause requires states to treat people equally under the law," wrote Young, who was appointed in 1998 by then-President Bill Clinton. "If the state wishes to differentiate between people and make them unequal, then it must have at least a legitimate purpose."

He also said his decision was due in part to a wave of similar rulings in other states, including two that dealt with terminally ill partners. * * *

Attorneys are due to present arguments May 2 over the couple's request for a preliminary injunction that would permanently bar Indiana from enforcing its gay marriage ban against their union, Castillo said.

The attorney general's office said in a statement Monday that it would continue to defend Indiana's gay marriage ban at the next stage in court.

"County clerks are still prohibited by law from issuing marriage licenses to other same-sex couples," spokesman Bryan Corbin said.

Indiana Solicitor General Thomas Fisher argued at the April 10 hearing in Evansville that the state has an interest in limiting marriage to couples who can have children. But Young noted in the order that the state routinely recognizes the marriages of couples who are too old to reproduce, and gay couples can form families in other ways.

He also wrote that the state's decision to not recognize gay marriages performed out of state didn't hold up because Indiana recognizes other marriages that take place outside of the state and violate Indiana laws, such as marriages between first cousins.

Jill Disis of the Indianapolis Star did a story March 14th that included a helpful side-bar distinguishing the five lawsuits, which are now all consolidated under Judge Young:
  • Bowling, Bowling and Bruner v. Pence, et al: In this lawsuit filed by a private law firm Friday, two of the plaintiffs, who were married in Iowa but live in Indianapolis, want state recognition of their marriage.
  • Lee, et al. v. Pence, et al: Filed by Freedom Indiana, a pro-LGBT coalition Indiana Equality Action (correction per Jill Disis), on Friday, this suit seeks marriage rights and benefits for public employees.
  • Fujii, et al. v. Pence, et al.: Filed by the ACLU of Indiana on Friday, plaintiffs include a widow who claims she was forced to pay inheritance tax on her dead wife’s property because they were not legally married in Indiana.
  • Baskin, et al. v. Bogan, et al.: Filed by Lambda Legal, a pro-LGBT organization, on Monday, this suit names three couples, including two women, one of whom is 78, who claim the state’s same-sex marriage ban creates a challenge for their end-of-life health care plans.
  • Love, et al. v. Pence, et al.: Filed by a private firm on March 7, this names four Indiana same-sex couples as plaintiffs, who either want to be married in Indiana or who want their marriages performed elsewhere legally recognized here.
The ILB has learned:
  • In a phone conference involving counsel in all five pending cases, Judge Young yesterday, Arpil 22nd, scheduled a hearing on May 2 at 9:30 Evansville time in Evansville with respect to the respective motions for summary judgment and for a preliminary injunction filed by the Lambda Legal plaintiffs (Baskin)and the Love plaintiffs. Those are the last two cases on the above list. Note that Niki Quasney and Amy Sandler, who received the temporary restraining order, are part of the Baskin lawsuit.

  • The ACLU-represented plaintiffs (Fujii) last week filed their motion for summary judgment but their case is not going to be heard on May 2 because the AG's office says it needs more time. That is the 3rd case on the above list. (I'm told: "The ACLU wanted its motions heard on May 2 also, but the AG’s office said it needed more time to review the ACLU’s papers and prepare but left the door open agree to include that case as well in the May 2 hearing. They’re supposed to let the ACLU and the Court know today.")

  • The plaintiffs represented by Richard Mann (Bowling) and the plaintiffs in Lee v. Pence yesterday filed motions for summary judgment and for a preliminary injunction hearing, along with supporting briefs. No hearing dates have yet been set in those two cases either. These are the 1st and 2nd cases in the above list.
The ILB shortly will be posting briefs in support of motions for summary judgment and for a preliminary injunction in Lee v. Pence. The ILB will post other documents as they may become available.

Posted by Marcia Oddi on April 22, 2014 10:06 AM
Posted to Ind Fed D.Ct. Decisions

Law - "People looking for a lawyer are turning to the Internet first, survey finds"

See the story here, via the ABA Journal.

Posted by Marcia Oddi on April 22, 2014 09:05 AM
Posted to General Law Related

Ind. Decisions - “Our view is the university has a common law lien on a transcript for services provided”

That is a quote from a story this morning by Seth Slabaugh in the Muncie Star-Press. More from the story:

MUNCIE — Ball State University is appealing court rulings that would require it to release the official college transcript of a student who left the school with an unpaid tuition balance.

Last year, a Lake County judge ordered the university to release the transcript of Jordan Irons, who enrolled at Ball State in the fall of 2011 but withdrew in the spring of 2012.

The university’s appeal of the trial court’s ruling to the Indiana Court of Appeals was recently dismissed, but Ball State will ask the Indiana Supreme Court to review the case. * * *

Ball State’s policy withholds official college transcripts until debts are paid in full. * * *

“Our view is the university has a common law lien on a transcript for services provided,” [Jim Williams, an attorney representing Ball State] said. “The analogy is if you took your car in to get it fixed. The mechanic has a lien on the car until the bill is paid. Technically, the mechanic can withhold the car until the bill is paid.”

However, Lake County Circuit Court Judge George Paras ruled: “The Legislature has not created a statutory lien that would allow a university to withhold a student’s transcript for failure to pay tuition. The Legislature’s silence on this subject suggests that our Legislature has chosen not to bestow a state university with this sort of remedy ... If the [Legislature] wanted to grant BSU a lien on their transcript, it could. In the instant case, BSU has no retaining lien.”

Neither Irons nor Ball State cited any Indiana case law on the issue. The university cited a federal bankruptcy case from Wisconsin that Paras did not find convincing on the issue in this case. “As such, this is apparently an issue of first impression (a completely original issue of law),” Paras wrote.

He added, “importantly,” that Ball State can follow normal collection procedures, including filing a lawsuit, to collect “the alleged outstanding debt, if any.” * * *

Appeals Court Judge Michael P. Barnes, a former county prosecutor in South Bend, wrote: “The transcript simply is not like the irreplaceable documents — securities, receipts, deeds, leases or promissory notes — mentioned in (Allstate Insurance v Scroghan).”

The Court of Appeals opinion, decided April 14th, is Ball State Univeristy v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband.

Posted by Marcia Oddi on April 22, 2014 08:46 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Backyard Chickens Growing In Popularity Among Hoosiers"

Mary Kuhlman of the Indiana News Service reported on April 17:

(Indianapolis, Ind.) – Raising chickens in the city is becoming increasingly popular as more Hoosiers move toward eating locally.

Goshen officials this week reversed an earlier decision and will allow residents to raise chickens at their homes.

Karen Schulte-Coman helped get a similar ordinance passed in South Bend. She says her family raises chickens because they are an easy, fresh food source and promote sustainability. * * *

Other cities with ordinances allowing chickens include Evansville, Indianapolis and Bloomington.

Meanwhile, on Saturday, the NY Times ran a story by Corey Kilgannon, titled "In Queens, Chickens Clash With the Rules." The long story begins:
Sylvia Saye held a basket of multicolored eggs.

“We won’t need to color them this year,” she said, looking at the eggs, which were already a pretty mix of blonde, tan, brown and light blue — and fresh from the henhouse on the side of her home in Queens.

Keeping chickens in New York City has become a popular hobby, especially in precincts of Brooklyn where foodies and do-it-yourselfers prize locally grown food. Ms. Saye, 48, bought a dozen heritage chickens last July to provide free-range eggs for her daughter, Scarlett, 5, because she wants to serve foods that are free of hormones.

“I got them for nutritional reasons,” Ms. Saye said. “You can’t buy these eggs in a supermarket.”

Ms. Saye bought a $2,500 coop and had fencing installed to protect the chickens from predators. But a month ago, she learned of a different type of threat to her chickens: the stringent restrictions that homeowners in her neighborhood are supposed to abide by.

Ms. Saye lives in Forest Hills Gardens, a private neighborhood nestled in one of the more pristine sections of New York City. It is renowned for its stately country garden style, multimillion-dollar Tudor and Georgian homes, and for its strict regulations, which forbid the keeping of backyard chickens.

ILB: The ILB has had a long list of urban chicken entries, here are some of them.

Posted by Marcia Oddi on April 22, 2014 08:30 AM
Posted to Indiana Government

Ind. Decisions - Supreme Court disciplines out-of-state attorney

In In the Matter of: Neil J. GREENE, a 5-0 order filed April 16th and posted yesterday, the Supreme Court writes in part:

Respondent is licensed to practice law in the state of Illinois but not in the state of Indiana. Franciscan Alliance Inc. ("Franciscan") is a nonprofit corporation with its headquarters in Mishawaka, Indiana. Franciscan operates 11 hospitals in Indiana and two in Illinois. In late 2011, Respondent was hired by Franciscan to assist with obtaining payment for medical care provided to patients who had been injured in accidents.

Respondent furnished Franciscan hospitals with his letterhead stationery. The hospitals sent a letter using Respondent's letterhead and his firm's signature block ("Discharge Letter") to injured patients when they were discharged. The Discharge Letter stated that Franciscan had partnered with Respondent "to help you have insurance pay your hospital bills related to the accident." The Discharge Letter stated that this service was provided at no cost to the patient, that an experienced team of patient advocates and attorneys would work with the patient to gather relevant information, and that the team would then contact the proper parties to get the patient's hospital bills paid.

The Discharge Letter obscured the relationship between Franciscan and Respondent, as well as the purpose of Respondent's services, it implied that Respondent was offering the patient a service for which he would normally charge, and it created the impression that Respondent was offering to advocate on behalf of the patient even though Respondent was actually advocating on behalf of Franciscan.

If the patient did not respond to the Discharge Letter, Respondent's practice was to send a second letter, and if necessary, a third letter, with an enclosed questionnaire. In these letters, Respondent indicated that he was acting on behalf of the hospital that had retained his office.

Since the initiation of an investigation by the Commission, Respondent has ceased the use of the Discharge Letter. Respondent has formed Hospital Reimbursement Services Inc.

("HRS") to provide services to Franciscan, discharged patients now receive communications on Franciscan letterhead, and Respondent no longer identifies himself as a lawyer when communicating with patients and third parties in conducting HRS business. * * *

Discipline: The parties propose the appropriate discipline is for Respondent to be indefinitely barred from acts constituting the practice of law in this state, including temporary admission, solicitation of clients, and identifying himself as a lawyer in the course of conducting HRS business in Indiana and/or on behalf of Indiana entities, until further order of the Court, plus the costs of this proceeding. The parties agree that HRS should not be barred from providing medical billing services to Franciscan as long as Respondent does so in circumstances that are distinct from providing legal services to clients.

The Court, having considered the submissions of the parties, now approves the agreed discipline. For Respondent's professional misconduct, the Court bars Respondent from acts constituting the practice of law in this state, effective immediately until further order of the Court, consistent with the terms set forth above.

Posted by Marcia Oddi on April 22, 2014 08:24 AM
Posted to Ind. Sup.Ct. Decisions

Monday, April 21, 2014

Ind. Decisions - COA posts a second for publication opinion today

In Moran Electric Service, Inc., and Threaded Rod Company, Inc. v. Commissioner, Indiana Department of Environmental Management, City of Indianapolis, Ertel Manufacturing Corp., an 18-page opinion, Judge Barnes writes:

Threaded Rod Company, Inc., (“Threaded Rod”) and Moran Electric Service, Inc., (“Moran”) (collectively, “Appellants”) appeal the trial court’s denial of their motions to intervene and motions for preliminary injunction in litigation between the Indiana Department of Environmental Management (“IDEM”), the City of Indianapolis (“the City”), and Ertel Manufacturing Corporation (“Ertel”). We reverse and remand.

Appellants raise two issues, which we restate as:
I. whether the trial court properly found that it did not have subject matter jurisdiction over Appellants’ claims; and
II. whether the trial court properly denied Appellants’ motions to intervene. * * *

In 2008, the City brought a civil action against Ertel to compel Ertel to reimburse the City for its clean-up costs. In 2009, the trial court entered summary judgment for the City and found that Ertel was liable to the City for cleanup costs. * * *

In July 2011, IDEM, the City, Ertel, and various insurance companies entered into an Administrative Agreed Order (“Administrative Order”) and a Settlement and Release Agreement (“Ertel Settlement Agreement”). * * *

IDEM agreed to issue a No Further Action Letter (“NFA Letter”) to Ertel when the remedial goals were met.

As part of the two agreements, the insurance companies paid $1,000,000 to IDEM. * * *

In January 2013, Threaded Rod filed a petition to intervene in the civil action between IDEM and Ertel. Threaded Rod also filed a motion for a temporary restraining order, motion for preliminary injunction, a request for a hearing, and alternatively, a motion for clarification of the trial court’s October 2011 order. Threaded Rod argued that the contamination on the Ertel site had migrated to the Threaded Rod site, that the $846,000 was intended to be used to clean up the Ertel site and other sites impacted by the contamination on the Ertel site, and that the funds should be preserved to address concerns on the neighboring properties. According to Threaded Rod, IDEM had abdicated its responsibility to clean up contaminants emanating from the Ertel site in violation of the trial court’s October 2011 order. Moran filed a separate motion to intervene and joined in Threaded Rod’s other motions. The City also filed a petition to intervene, which the trial court granted. * * *

IDEM argued that Appellants were not entitled to intervene in the action and that the trial court lacked subject matter jurisdiction because the exclusive jurisdiction to review IDEM’s actions rested with the administrative process pursuant to the Administrative Orders and Procedures Act (“AOPA”). The City argued that the motions to intervene were untimely and, alternatively, that Appellants were not entitled to intervene.

On April 19, 2013, the trial court issued an order denying the requests to intervene and the requests for a preliminary injunction. The trial court found that it lacked subject matter jurisdiction to address Appellants’ arguments pursuant to Indiana Department of Environmental Management v. Raybestos Products, Co., 897 N.E.2d 469 (Ind. 2008), corrected on reh’g by 903 N.E.2d 471 (Ind. 2009), cert. denied. * * *

The trial court erred when it determined that it did not have subject matter jurisdiction. However, under the doctrine of primary jurisdiction, this action should be stayed until the administrative action is final. We also conclude that the trial court erred by denying Appellants’ motions to intervene. We reverse and remand for proceedings consistent with this opinion.

Posted by Marcia Oddi on April 21, 2014 03:31 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: 7th Circuit decides a second Indiana case today, a 2-1 opinion re "judicial districts" under the FDCPA

Updating this ILB post from Oct. 31, 2013, where the 7th Circuit panel concluded, 2-1, that:

The district court dismissed Suesz’s claim after finding Marion County Small Claims Courts were not judicial districts for the purposes of the FDCPA. We agree, and affirm the dismissal of Suesz’s complaint.
the 7th Circuit heard oral argument in the case again last Friday, April 18, en banc.

The ILB attempted to obtain the briefs via PACER, but was stopped by this warning: "Warning: you will be billed for the total number of pages (this query is not subject to the 30-page limit on PACER charges)."

Posted by Marcia Oddi on April 21, 2014 12:57 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Written order in Baskin v. Bogan request for emergency recognition

Here is Judge Young's April 18th written order supporting his bench ruling April 10th in the case of Baskin v. Bogan.

As Charles D. Wilson of the AP writes in this new story:

A federal judge says attorneys defending Indiana’s gay marriage ban haven’t shown any good reason to not recognize the marriage of a lesbian couple, one of whom has a terminal illness.

Judge Richard Young’s order dated Friday outlines the rationale behind his April 10 decision to grant the couple a temporary restraining order barring the state from enforcing its gay marriage ban against them.

Young says he granted the request in large part because Niki Quasney and Amy Sandler, who were marrided in Massachusetts, are likely to succeed in their bid to have Indiana’s gay marriage ban declared unconstitutional.

Posted by Marcia Oddi on April 21, 2014 11:54 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pamela Sandefur v. Utica Township, John Durbin, Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, et al. , a 12-page opinion, Judge Kirsch writes:

Old Utica School Preservation, Inc. (“Old Utica”), Kenneth Morrison, Scott Sandefur, and Pamela Sandefur (collectively, “the Citizens”) appeal the trial court’s order granting summary judgment in favor of Utica Township, John Durbin as Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, Anthony Glotzback, and Barbara Williar (collectively, “Jacobs Well”). The Citizens raise the following restated issue for our review: whether the trial court erred when it found that the Citizens did not have standing to seek declaratory judgment and granted summary judgment, dismissing the Citizens’ action. We reverse and remand. * * *

We note that, in determining that the Citizens did not have standing to bring this claim, the trial court only discussed whether the Citizens had standing as parties to the contract or as third-party beneficiaries. The trial court did not make any findings regarding the Citizens’ standing under the public standing doctrine, which the Citizens argued both in their response to the motion for summary judgment and in their motion to correct error. Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate appellate review, but are not binding upon this court. FLM, 973 N.E.2d at 1173. We will affirm upon any theory or basis supported by the designated materials. Id. We therefore proceed to determine if the Citizens have standing under the public standing doctrine. * * *

Applying the rulings in Cittadine and Berkshire, we conclude that the Citizens, and others residents of the township, have an interest in the proper administration of the School for park and recreation purposes. It is apparent that a public right, the enjoyment of the School for park and recreation purposes, is at issue because the statutory language in Indiana Code section 20-23-6-9(d) states that the school property is to be offered to the township as a gift for park and recreation purposes and that the deed shall state that the township is required to use the property for park and recreation purposes. We, therefore, conclude that the Citizens have standing to proceed with their claim under the public standing doctrine.

We note that the statutory language provides no guidance as to what townships are to do with the school property in situations such as Utica Township faced here in which it is no longer feasible to maintain the school property for park and recreation purposes. In adopting Indiana Code section 20-23-6-9, the legislature did not provide what should happen to school property when, or if, it is no longer used for park and recreation purposes in the future. It is unclear whether the property must be used for park and recreation purposes in perpetuity or if it reverts back to the school corporation when it is no longer used for those purposes or if the township can lease the property for uses that may or may not be exclusively for park and recreation purposes. We conclude only that the Citizens have standing to bring a claim under the public standing doctrine. In reaching this conclusion, we express no opinion on the issue whether the lease between Utica Township and Jacobs Well, Inc. complies with the statutory restriction on the use of the property for park and recreation purposes. We, therefore, reverse the trial court’s dismissal of the Citizens’ complaint and remand for further proceedings on their claims.

BAILEY, J., concurs.
FRIEDLANDER, J., concurs with separate opinion. [which reads in full]
I fully concur in the conclusion that the Citizens have standing, pursuant to the Public standing doctrine, to pursue their claim. I write separately to express my opinion that the final paragraph of the lead opinion constitutes dicta. For purposes of resolving the present appeal, we need go no further than the determination that the Citizens have standing. This is not to say, however, that I disagree with the sentiments expressed in the final paragraph. This case illustrates that the statutes enacted by our legislature fail to address certain situations and circumstances that might arise when disposing of school buildings. Although it is not relevant to our holding in the present case, I agree with my colleagues that these gaps merit the General Assembly’s attention. Subject to these comments, I fully concur in the lead opinion.

NFP civil opinions today (0):

NFP criminal opinions today (5):

James Clark v. State of Indiana (NFP)

Rodney S. Perry, Sr. v. State of Indiana (NFP)

Laura Jones v. State of Indiana (NFP)

Thomas D. Dillman v. State of Indiana (NFP)

Yansie G. Norment v. State of Indiana (NFP)

Posted by Marcia Oddi on April 21, 2014 11:38 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 18, 2014

There were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on April 21, 2014 11:32 AM
Posted to Indiana Transfer Lists

Indiana Decisions - More on "No judicial discretion in some expungement cases"

Referring to this ILB entry from earlier this morning, on the Court of Appeals decision April 17th in Jason Taylor v. State of Indiana, Indianapolis attorney Tyler Helmond writes:

Thanks for your story on Jason Taylor v. State of Indiana. I was wondering, the Taylor opinion says HEA 1155 is effective July 1, 2014, but the language from the legislation indicates it is [EFFECTIVE UPON PASSAGE] and “an emergency is declared for this act.” Does this seem inconsistent with the court’s opinion?
I responded:
Darn, I didn't catch that, but you are correct and I even have an earlier post headlined Ind. Courts - The new expungement changes took effect March 26th. What are they?

But I don't think it impacts the court's opinion with respect to this defendant. I expect his expungement efforts in Lake County took place before March 26, 2014.

Mr. Helmond responded:
I think you are right. I don’t think it has any impact on the merits of that case, but it may cause confusion as to what the effective date really is.
Here is HEA 1155. The Court's statement that it is effective July 1, 2014 is found in footnote 1 at p. 8.

Posted by Marcia Oddi on April 21, 2014 11:15 AM
Posted to Ind. App.Ct. Decisions

Law - "What happens to your digital assets when you die?"

The Lafayette Journal Courier today has published this story by Sue Doerfler of the Arizona Republic. It begins:

Deciding who gets what when we die is difficult enough when it comes to divvying jewelry, collectible baseball cards, family heirlooms, houses and cars.

It can be even trickier to arrange control of our digital assets.

People's virtual legacies include e-mail, photo-sharing and social-media accounts. However, because of laws and user-service agreements, our heirs may have trouble gaining access to them, even if they have the passwords.

Plus, most of us don't include digital assets in our estate plans, experts say. This also can create problems for heirs.

Digital-asset planning is a fairly new concern for consumers as well as estate planners.

Posted by Marcia Oddi on April 21, 2014 11:00 AM
Posted to General Law Related

Ind. Courts - "Opponents of same-sex unions called federal Judge Richard Young an activist judge who was unilaterally trampling the law"

That is according to this opinion piece today by Maureen Hayden of CNHI in the New Albany News & Tribune. The ILB has not seen these criticisms. Today's report begins:

INDIANAPOLIS — When U.S. District Judge Richard Young recently ruled in favor of a lesbian couple seeking recognition of their out-of-state marriage, opponents of same-sex unions called him an activist judge who was unilaterally trampling the law. The label didn’t resonate with those who know Young well.

Among them is Randall Shepard, the retired chief justice of Indiana’s Supreme Court. Shepard, who was appointed to the bench by a Republican, has known Young, a Democratic appointee, for more than 30 years.

“He’s a person of great rectitude,” said Shepard, describing the 60-year-old grandfather who’s been on the federal bench since 1998. “You don’t hear anybody question whether he’s partial or impartial.”

Posted by Marcia Oddi on April 21, 2014 10:49 AM
Posted to Ind Fed D.Ct. Decisions

Indiana Decisions - "No judicial discretion in some expungement cases"

The April 17th Court of Appeals opinion in Jason Taylor v. State of Indiana (ILB summary here, 5th case) was the subject last Friday of a story by Dan Carden in the NWI Times. Some quotes:

Judges do not have discretion to deny a valid request for expungement of a low-level felony or misdemeanor criminal record, the Indiana Court of Appeals ruled Thursday.

In the first legal test of the state's 2013 expungement law, the appellate court reversed Lake Superior Judge Salvador Vasquez's decision to reject the expungement request of a Valparaiso man who pleaded guilty in 2004 to sexual misconduct with a minor, a Class D felony that Vasquez reduced to a Class A misdemeanor in 2006 after the perpetrator successfully completed probation.

Vasquez claimed a provision in the expungement law requiring him to consider the victim's response to the expungement petition gave him the option of denying the request for expungement.

But in a 3-0 ruling written by Chief Judge Nancy Vaidik, a Porter County native, the appellate court determined the statue's declaration that a judge "shall order" a low-level felony or misdemeanor conviction expunged, provided other conditions are met, bars judges from rejecting those expungement petitions.

"It is well settled that the use of the word 'shall' is construed as mandatory language," Vaidik said. "Had the Legislature intended the expungement of conviction records to be discretionary, it would have used the word 'may' instead of the word 'shall.'"

Vaidik notes the law says judges "may" grant expungement requests for more serious felonies, indicating the General Assembly preferred judicial discretion in some cases and favored automatic expungement in others. * * *

State lawmakers earlier this year, in House Enrolled Act 1155, eliminated the requirement that a judge consider a victim impact statement in expungement cases, effective July 1, and simplified the expungement process to make the erasure of criminal records for now law-abiding citizens nearly automatic in most cases.

ILB: The opinion discussed these legislative changes in two footnotes to the opinion. Here is the first:
House Enrolled Act 1155 was signed by Governor Mike Pence on March 26, 2014, and will be effective July 1, 2014. While not directly applicable to this appeal, the changes it makes gives us further information about the legislature’s intent behind Chapter 35-38-9.

Posted by Marcia Oddi on April 21, 2014 10:40 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Ending the Taboo on Citing Memorandum Decisions

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

You have likely heard of or even played a board game called Taboo. Working in teams, players “take turns describing a word or phrase on a drawn card to their partner without using five common additional words or phrases also on the card.” Points are scored when the word is guessed, but players “lose for saying one of the off limits words or phrases.”

The current version of Appellate Rule 65(D) shares some parallels with the popular board game. Lawyers can cite to any Indiana Supreme Court opinion and to about 25% of Indiana Court of Appeals’ decisional law — but the remaining 75% of that court's jurisprudence, found in not-for-publication (NFP) memorandum decisions, is taboo. Except under very narrow circumstances*, those NFP decisions “shall not be cited to any court . . . .”

Those opinions, though, are easily accessible on Lexis, Westlaw, and CaseMaker — and often provide helpful analysis when considering an issue. As previously discussed on this blog, the legal significance of some of those opinions are difficult to distinguish from published opinions.

Each year when researching and writing on an issue of Indiana law, some of my first-year legal writing students express puzzlement and disbelief about the limitation, which I explain as a relic of an era when memorandum decisions were not posted on the internet or available on Westlaw or Lexis.

That era ended several years ago, and the rule should be amended to reflect the modern reality. With your help, it can. As explained on the Indianapolis Bar Association’s website:

The Rules Committee of the Indiana Supreme Court has proposed changing this rule to allow citation of memorandum (non-for-publication) decisions as persuasive precedent. The proposed rule makes clear: “A party or attorney has no duty to cite a memorandum decision.” The new rule would not create additional work for lawyers. In many cases, lawyers will find and continue to rely on ample binding (published) authority. In cases without helpful controlling precedent, under the new rule, lawyers need not resort to other jurisdictions to find support, but instead may rely on relevant memorandum (not-for-publication) decisions within Indiana as persuasive precedent.

A Task Force of the Indianapolis Bar Association Appellate Practice Section crafted this proposal, which the executive committees of the Appellate Practice, Criminal Justice, and Litigation sections each respectively supported. The proposal was ultimately approved for submission to the Rules Committee by the IndyBar Board of Directors at its December 2013 meeting.

You are encouraged to share your comments on the proposed rule. Feedback is essential to the Rules Committee and ultimately the Indiana Supreme Court justices in deciding whether to adopt a proposed rule or to make changes to the proposal. Without it, this rule will not be approved.

Comments can be short or lengthy. Consider beginning with an introduction of yourself (including years in practice and practice areas(s)) before explaining your experience with the current rule and your reasons for supporting the change. You may wish to identify any specific instances where you have encountered and been unable to cite helpful memorandum decisions. Alternatively, a concise statement of your support for the rule will be valued.

Comments must be sent no later than May 13, 2014 and be addressed to:
RulesComments@courts.in.gov

OR

Lilia G. Judson
Executive Director
Indiana Supreme Court
Division of State Court Administration
30 South Meridian Street
Suite 500
Indianapolis, IN 46204

____________
*The exceptions are “to establish res judicata, collateral estopped, or law of the case.”

Posted by Marcia Oddi on April 21, 2014 08:53 AM
Posted to Schumm - Commentary

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/21/14):

Thursday, April 24

  • 9:00 AM - Curtis Sample v. State of Indiana (45S03-1401-CR-11) Sample was convicted of murder, see Sample v. State, 932 N.E.2d 1230 (Ind. 2010), and on remand, was found to be an habitual offender. During the habitual offender phase, the State called witnesses who testified that the victim in the predicate offenses had mental health issues. Citing Hollowell v. State, 753 N.E.2d 612 (Ind. 2001), the Court of Appeals affirmed in Sample v. State, No. 45A03-1302-CR-52 (Ind. Ct. App. Sept. 19, 2013) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 9/19/13 NFP COA opinion where the issue was "Did the trial court commit reversible error in permitting prosecution witnesses to testify that the victim of two predicate offenses was mentally infirm?" The opinion ends with this interesting statement:

    Sample urges us to adopt the contrary view expressed by Justice (now Chief Justice) Dickson and Justice Rucker in Hollowell (2001). It is not within our prerogative to do so, as that view was expressed in a dissenting opinion, and did not carry the day. Pursuant to Hollowell, the trial court did not err in permitting Ryan and Papadakis to testify about the memorable aspect of the case in which each was, respectively, involved.

  • 9:45 AM - Robert Corbin v. State of Indiana (75S03-1401-CR-13) Corbin, a teacher, sent messages to a student asking her to take care of his sexual arousal, to sneak out of the house so he could pick her up, etc. Corbin was charged with attempted child seduction, IC 35-42-4-7. The Starke Circuit Court denied Corbin’s motion to dismiss. In this interlocutory appeal, the Court of Appeals reversed, deciding that Corbin’s internet-based solicitations did not constitute a substantial step toward the crime of child seduction. Corbin v. State, 999 N.E.2d 70 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is an 10/11/13 opinion, in a case involving Facebook solicitations, where the COA concluded: "Corbin did not take the substantial step required to amount to attempted child seduction."

  • 10:30 AM - Seth A. Miller v. State of Indiana (63A01-1210-CR-475) Following a jury trial in Pike Circuit Court, Miller was convicted of Corrupt Business Influence, IC 35-45-6-2, and other offenses. The Court of Appeals reversed this conviction on grounds there was insufficient evidence to establish the element of an “enterprise” within the meaning of the statute. Miller v. State, 992 N.E.2d 791 (Ind. Ct. App. 2013), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This is a July 31, 2013 COA opinion in a case including a conviction for Corrupt Business Influence:

    The evidence in this case simply fails to establish the necessary element of an enterprise within the meaning of the statute. Accordingly, we need not reach the additional issue of whether their episode of conduct qualifies as a pattern of racketeering activity. The conviction for corrupt business influence is reversed and the sentence of eight years thereon is vacated. In all other respects the judgment is affirmed.
Next week's oral arguments before the Supreme Court (week of 4/28/14):

Thursday, May 1

  • 9:00 AM - First Am. Title Ins. Co. v. Robertson (49S04-1311-PL-732) First American Title Insurance Company petitioned the court for a judgment declaring void the Commissioner of Insurance's decision calling for an investigatory hearing. The Commissioner moved to dismiss the petition. The Marion Superior Court denied both the petition and the motion. The Court of Appeals affirmed in part and reversed in part, concluding the allegation that First American failed to exhaust its administrative remedies raised a procedural rather than a jurisdictional issue; the documents filed by First American, although not the complete agency record, were sufficient to permit judicial review; and the Commissioner's decision was untimely and void. First Am. Title Ins. Co. v.Robertson, 990 N.E.2d 9 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a May 13th COA opinion. From footnote 8:

    We note that in many instances, when a court sets aside an agency action, it remands the case to the agency for further proceedings. See Ind. Code § 4-21.5-5-15. Considering our holding that the Commissioner’s failure to comply with the statutory deadline rendered his order void and he can no longer take action on the report that was the subject of the order, remand to the agency would serve no purpose and is, therefore, unnecessary. * * * On remand, the trial court must simply issue an order granting First American’s petition and declaring the Commissioner’s order void.

  • 9:45 AM - Natural Resources Defense Council v. Poet Biorefining (49A02-1205-MI-423) The Office of Environmental Adjudication determined the State Implementation Plan ("SIP") required the Indiana Department of Environmental Management to categorize the fuel ethanol facilities as "chemical process plants" for the purpose of regulated air emissions. The Marion Superior Court reversed. The Court of Appeals reversed the trial court, concluding the SIP categorized ethanol fuel facilities as chemical process plants and IDEM could not change its treatment of the facilities without obtaining approval of an amended SIP from the Environmental Protection Agency. Nat'l Res. Def. Council v. Poet Biorefining-North Manchester, 987 N.E.2d 531 (Ind. Ct. App. 2013), reh'g denied, trans. pending. IDEM and Central Indiana Ethanol, LLC have petitioned the Court to accept jurisdiction over the appeal.

    ILB: This was an April 30, 2013 COA opinion (7th case) concluding: "The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court."

  • 10:30 AM - Jerry A. Smith v. State of Indiana (15A05-1208-CR-411 & 24A01-1210-CR-469) After Smith pleaded guilty to federal charges relating to an investment scheme, he moved to dismiss charges pending against him in the Franklin Circuit Court and in the Dearborn Superior Court on grounds IC 35-41-4-5 bars the subsequent state-court prosecutions. The trial courts denied his motions to dismiss in part. In the separate appeals that followed, the Court of Appeals affirmed the trial courts’ rulings in part and reversed in part in separate opinions. Smith v. State, 993 N.E.2d 1182 (Ind. Ct. App. 2013), trans. pending, and Smith v. State, 993 N.E.2d 1185 (Ind. Ct. App. 2013), trans. pending. Smith has petitioned the Supreme Court to accept jurisdiction over both of the appeals. The Court will hear a forty-minute combined oral argument, but otherwise has not consolidated the appeals.

    ILB: Both opinions are from Sept. 13, 2013: 15A05-1208-CR-411 and 24A01-1210-CR-469

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/21/14):

Thursday, April 24

  • 10:30 AM - Betina Pierson v. Service America Corp., et al (49A02-1307-CT-561) Trenton Gaff was intoxicated when his vehicle struck and killed twelve-year-old Tierra Rae Pierson and injured twelve-year-old January Canada. Earlier in the day, Gaff had attended a Colts game at Lucas Oil Stadium and had consumed alcoholic beverages at a pre-game tailgate party, during the game, and at a post-game tailgate party. Separate lawsuits were filed on behalf of Pierson's estate and Canada, alleging that Centerplate, the vendor of alcoholic beverages at Lucas Oil Stadium, had violated Indiana's Dram Shop Act by providing alcoholic beverages to a visibly intoxicated person and had committed common law negligence by failure to adequately train servers. The trial court granted summary judgment to Centerplate, concluding that there was no evidence that a Centerplate designee served alcohol to Graff while he was visibly intoxicated. Pierson claims that genuine issues of material fact preclude summary judgment and that the trial court did not view the evidence in the light most favorable to the non-movant, as required by the Indiana summary judgment standard. The Scheduled Panel Members are: Judges Najam, Bailey and May. [Where: New Castle High School, 801 Parkview Drive, New Castle, IN]

Next week's oral arguments before the Court of Appeals (week of 4/28/14):

Wednesday, April 30

  • 11:30 AM - Rashawn Speed v. State (35A02-1308-CR-696) A jury found Speed guilty of Class A felony child molesting, Class C felony child molesting, and Class B felony sexual misconduct with a minor. Speed was acquitted of the Class D felony sexual misconduct with a minor charge. On appeal, Speed argues that the trial court improperly allowed J.A.T.’s counselor to vouch for her credibility. He also claims that the trial court erroneously allowed the prosecutor to ask leading questions of J.A.T., who was 20 at the time of the trial, and allowed a line of questioning that implied that other acts occurred outside of Huntington County. Speed also asserts that there is insufficient evidence to support his convictions because there is no evidence to corroborate J.A.T.’s testimony and her testimony is not credible. Finally, Speed claims his attorneys’ failure to object to certain evidence and to rebut other evidence resulted in ineffective assistance of counsel. The Scheduled Panel Members are: Judges May, Mathias and Barnes. [Where: Saint Joseph High School, 453 N. Notre Dame Ave., South Bend, IN ]

  • 1:00 PM - Maddox Macy v. State (52A02-1309-CR-808) On August 25, 2012, animal control officers in Miami County received a report that two dogs owned by Maddox Macy bit one of Macy’s neighbors. The next morning, Officer Roger Bowland accompanied two animal control officers to Macy’s residence. Macy was uncooperative. Despite being asked to calm down, Macy was loud and demanded answers from the officers. Officer Bowland threatened to arrest Macy if she did not calm down. Officer Bowland then walked across the street to the bite victim’s house. Macy followed down the sidewalk and began “making a scene.” Officer Bowland arrested Macy and placed her in the front seat of his police car. Macy opened the door of the car and continued to yell. Officer Bowland forced Macy back into the car, but Macy refused to put her feet inside the door. Officer Bowland had to pick up Macy’s feet and place them inside the car. Macy was convicted of disorderly conduct and resisting law enforcement. Macy appeals her conviction for resisting law enforcement, arguing she did not forcibly resist. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where: Lake County Government Complex Auditorium, 2293 N. Main St., Crown Point, IN ]

Thursday, May 1

  • 1:30 PM - Tallman v. State (51A01-1305-PL-241) Richard M. Tallman appeals the trial court’s entry of summary judgment in favor of the State of Indiana, Indiana Department of Natural Resources, and Anthony Mann (collectively “DNR”) on Tallman’s complaint alleging DNR’s negligence. In December 2004, Jerry Tredway hired Tallman to harvest timber on his property for sale. After Tallman harvested more trees than the contract had authorized, Tredway’s daughter contacted DNR. After an investigation, DNR arrested Tallman and transported him to the Martin County Jail. Tallman claims that he sustained injuries as a result of the DNR’s placement of handcuffs around his wrists. Tallman sued DNR for damages, and DNR moved for summary judgment, which the trial court granted. On appeal, Tallman presents a single issue for our review, namely, whether the trial court erred when it concluded that DNR is immune from liability for Tallman’s alleged injuries as a matter of law. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Najam and May. [Where: Salem High School, 700 N. Harrison St., Salem, IN]

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.

Posted by Marcia Oddi on April 21, 2014 08:40 AM
Posted to Upcoming Oral Arguments

Thursday, April 17, 2014

Ind. Gov't. - "AP Exclusive: Turner had more than $4M at stake in nursing home fight, has made millions more"; plus ILB resources

Updating this ILB post from April 14th, Tom LoBianco of the AP reports late this afternoon:

During much of the debate during the 2014 session, it appeared [Rep. Eric] Turner's son, developer Zeke Turner, had the most to lose if the five-year moratorium was enacted. But a financial document obtained by The Associated Press shows that Eric Turner had as much or more at stake because he owns 38 percent of Mainstreet Property Group, which builds nursing homes in Indiana and other states.

The information is included in a private offering from a subsidiary of Mainstreet Property Group looking to raise money for a proposed nursing home in Bloomington. The document refers to Eric Turner as a 50 percent owner of Mainstreet Capital Partners, which owns nearly 76.5 percent of Mainstreet Property Group.

Turner has consistently denied any wrongdoing. He issued a statement Thursday saying the moratorium would have had "no significant effect" on his business because investments in new facilities would simply have moved to other states. He acknowledged, as he has previously, that he holds an ownership stake in Mainstreet but did not disclose the amount.

"Consistent with the House Code of Ethics, I provided my particular expertise during discussions in caucus and disclosed I am an investor in an entity that invests in Mainstreet Property Group," Turner said. * * *

In a press release sent during the middle of the legislative fight, Mainstreet argued that five projects underway would be blocked by the ban. According to another Mainstreet financial document, two of the projects — in Lafayette and Terre Haute — were expected to net Mainstreet $5.4 million and $4.8 million, respectively.

In the case of those two facilities, Eric Turner stood to lose nearly $3.9 million if the ban had passed.

The Cicero Republican kept his distance from the issue in public, recusing himself from votes and abstaining from comment in hearings, including one where his son testified. But he lobbied other House Republicans in private meetings during the last two days of the legislative session and was successful in helping killing the legislation, several Republicans who were in those meetings told the AP.

House Ways and Means Chairman Tim Brown, R-Crawfordsville, said earlier this week that he knew of Turner's interest in the nursing home industry.

"Eric and I are friends and have had a lot of private conversations, so I'm aware of what's going on in Eric's life, yes," Brown said.

He didn't answer directly when asked if he had any concerns about Eric Turner taking actions in caucus that could reap him millions of dollars. Instead he offered a concern many lawmakers have: that stricter ethics rules could violate the spirit of Indiana's part-time Legislature, which brings in elected officials who are not full-time politicians.

Although most lawmakers have careers outside the Statehouse, ethics rules bar them from taking direct actions in the General Assembly that would directly benefit them or their family.

It's unlikely that Turner's actions violated that rule because his discussions occurred during private meetings of the House Republican caucus, which is not considered an official forum.

ILB Resources: The House announced today that its "Statutory Committee on Ethics" will meet next Wed., April 23, at 2 PM in Room 404 of the Statehouse. No word on whether it will be videocast.

Intrigued at why it was designated the "Statutory Committee," I found this statute, IC 2-2.1-3. Sec. 5 of this law creates the legislative ethics committees. Sec. 6, from 1974, requires each committee "to recommend a code of ethics for their respective houses by not later than 30 days after the first session day of each legislative session." (I linked to the House code in this earlier post; BTW, the Senate does not appear to have a Code of Ethics.)

Sec. 7 sets out other powers and duties of the committees, including:

(1) may receive and hear any complaint which alleges a breach of any privilege of the appropriate house, misconduct of any member or any violation of the respective code of ethics,
regardless of when the breach, misconduct, or violation is alleged to have occurred;
(2) may obtain information with respect to any complaint filed pursuant to this section and to that end may compel the attendance and testimony of witnesses, and the production of pertinent books and papers;
(3) may recommend whatever sanction is appropriate with respect to a particular member as will best maintain in the minds of the public a good opinion of the conduct and character of members of the general assembly;
(4) may recommend legislation to the general assembly relating to the conduct and ethics of members of the general assembly ....
The ILB has obtained and is posting a prescient 2006 Indiana Law Review article on legislative ethics, authored by Ed Feigenbaum. The title: "Legislative Ethics in Indiana: A Matter of Perception - And Perception Matters." It begins:
Few things are as critical to the effective and efficient performance of a democracy as the understanding by public officials that public service is a public trust. The system can only function properly if those responsible for legislating, implementing, and adjudicating our laws are motivated by public service, rather than by self-interest.

In a state such as Indiana, where service in the General Assembly is a parttime responsibility, this altruistic motivation becomes even more important as lawmakers must insulate—or separate—themselves from assorted outside influences that might adversely affect their ability to make impartial decisions and vote on matters without having their motives questioned over the perception or reality of those actions.

Posted by Marcia Oddi on April 17, 2014 06:08 PM
Posted to Indiana Government

Ind. Courts - More on: "Community Concerned About Brown Co. Courthouse Expansion"

Updating this ILB post from April 3rd, Laura Lane of the $$ Bloomington Herald-Times reports today:

Months after taxpayers said “no” to financing a plan to expand the Brown County Courthouse, the building is still short on space and violating disability access laws as county officials again try to convince residents to support a tax increase for an expansion.

Last fall, citizens on both sides of the issue carried petitions and gathered signatures from Brown County residents for and against the courthouse plan. The final tally was 8-1 against a tax hike for the project.

But county officials want to move forward and say they must at least bring the building into compliance with the Americans with Disabilities Act by making the restrooms wheelchair accessible and building ramps in the circuit courtroom, where stairs lead to the judge’s office.

Other options are adding on to the existing courthouse in the center of Nashville, or building a new facility adjacent to the law enforcement center just east of town.

During a meeting this week, about 50 citizens showed up to hear more and to speak their minds. * * *

The project would likely be financed by a $6.5 million bond issue. A resident with property assessed at $100,000 would pay an additional $22 per year in property taxes to fund the project.

The discussions in hope of reversing the tide against a courthouse expansion will continue over the next few months as county officials decide how to proceed.

Brown County Commissioner John Kennard said it will cost about $70,000 to bring the historic brick courthouse into compliance with the Americans with Disabilities Act, which requires that public buildings be accessible to people in wheelchairs.

Since there have been no formal citizen complaints filed regarding the lack of access, the county has not yet been forced to comply with the federal law. Kennard said he wants to make the improvements, but hesitates to spend the money since the alterations night be affected by a future expansion plan.

“From our study, the most logical answer is remodeling and expanding the existing courthouse. It’s old and fits the motif of the town,” Kennard said. “I think we have to at least make the building accessible. ... We are out of money, but we have to look at that and start somehow, and there’s no reason to do this twice if we go with the expansion.”

Posted by Marcia Oddi on April 17, 2014 04:10 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O'Mailia, and James O'Mailia, a 29-page opinion, Judge Brown writes:

GEICO General Insurance Company (“GEICO”) appeals from the trial court’s Findings of Fact and Conclusions of Law Addressing Plaintiff’s Motion for a New Trial, entered on March 21, 2013, as well as from the court’s Final Order entered on June 5, 2013, in favor of Cheryl A. O’Mailia and James O’Mailia (collectively, the “O’Mailias”). GEICO raises three issues, which we consolidate and restate as whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. Additionally, the O’Mailias request appellate attorney fees pursuant to Ind. Appellate Rule 66(E). We reverse and also deny the O’Mailias’ request for appellate attorney fees. * * *

The issue is whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. * * *

Here the parties agree that GEICO did not violate the rules of discovery. There was no interrogatory or other tool of discovery related to the Florida Information, and accordingly GEICO was under no duty to supplement its discovery under Ind. Trial Rule 26(E). Under the circumstances, in which GEICO was not under a duty to disclose the Florida Information and it researched the scope of its duty to disclose before deciding not to do so, we conclude that GEICO did not litigate in bad faith. Accordingly, we reverse the trial court’s attorney fee award under Ind. Code § 34-52-1-1(b)(3). * * *

ROBB, J., concurs.
BARNES, J., concurs with separate opinion. [which begins, at p. 28] I concur with the majority that the award of attorney fees be reversed. I do so with some hesitation, though, because I believe that trial by ambush and rabbit-out-of-the-hat moments are not to be favored in our courtrooms.

In Teresa Fry n/k/a Teresa Dolan v. Michael Fry, a 12-page opinion, Judge Robb writes:
When Michael and Teresa Fry divorced in 2005, they agreed regarding child custody, parenting time, and support for their child, J.F. In addition, they agreed that Michael could exercise parenting time with respect to Teresa’s prior-born daughter, K.D., at his option. In 2012, Michael filed an emergency petition for modification of custody with respect to both children, alleging that Teresa suffers from a degenerative illness that renders her unable to adequately care for them. The trial court granted the petition, ordering that Michael have primary physical custody of both children and Teresa have supervised visitation. Teresa later filed a Trial Rule 60(B) motion for relief from judgment, seeking to void the order modifying custody as to K.D. The trial court denied the motion for relief and reaffirmed its previous orders. Teresa appeals the trial court’s denial of her motion for relief as to K.D. only, raising the sole issue of whether the trial court had jurisdiction in this post-dissolution matter to determine custody of K.D., who was not a child of the marriage. Concluding the trial court had jurisdiction and committed no legal error, we affirm. * * *

The trial court did not commit any legal error in considering Michael’s emergency petition, and Teresa does not dispute an emergency existed as found by the trial court in its July 26, 2012, order. The trial court’s order awarding custody of K.D. to Michael is therefore affirmed.

In Geoffrey A. Gilbert v. Melinda J. Gilbert, a 21-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not abuse its discretion in granting Mother’s request to relocate because she had a good faith and legitimate purpose for relocating, and the move was not contrary to the Children’s best interests. Additionally, we conclude that Mother is not entitled to appellate attorney fees because Father’s appeal is not frivolous or in bad faith. Affirmed.

BARNES, J. concurs
ROBB, J. dissents with separate opinion [which begins, at p. 16] As noted by the majority, when a parent subject to a custody or parenting time order wishes to relocate and the other parent objects, the relocating parent must prove that the relocation is made in good faith and for a legitimate reason. If the relocating parent makes this showing, then the objecting parent must prove that the relocation is not in the child’s best interest. The majority decides that the record clearly supports the trial court’s conclusion that Mother desired to relocate in good faith and for a legitimate reason. I respectfully dissent.

In Charrise Belton v. State of Indiana, an 8-page opinion, Judge Bradford writes:
On March 7, 2013, Appellant-Defendant Charrise Belton was riding in a vehicle driven by her then-boyfriend, Tacolby Calloway. Belton waited in the vehicle while Calloway entered a home located near the intersection of 33rd Street and Orchard Avenue in Indianapolis. Calloway appeared to be under the influence of drugs when he exited the home approximately thirty minutes later. Calloway subsequently became upset with Belton and threatened to assault her. Fearing for her safety, Belton drove away from Calloway. Belton was stopped by a member of the Indianapolis Metropolitan Police Department for a traffic infraction approximately one-half of a mile away.

The State subsequently charged Belton with Class A misdemeanor driving while suspended. Following a bench trial, the trial court found Belton guilty as charged and imposed a 365-day suspended sentence. On appeal, Belton contends that the State did not present sufficient evidence to negate her necessity defense. Concluding that the evidence presented by the State was insufficient to negate Belton’s necessity defense, we reverse.

In Jason Taylor v. State of Indiana , a 9-page opinion, Chief Judge Vaidik writes:
Jason Taylor pled guilty to a Class D felony and was sentenced to eighteen months all suspended to probation in August 2004. Under his plea agreement, he was permitted to petition the court to reduce his conviction to a Class A misdemeanor if he successfully completed the terms of his probation. After successfully completing eighteen months of probation, he petitioned the trial court and it entered judgment as a Class A misdemeanor. In 2013, the Indiana legislature passed Indiana Code chapter 35-38-9, which allows convicted criminals to petition for expungement of previous crimes. Taylor appeals the denial of his petition for expungement under Indiana Code section 35-38-9-2. Although Taylor met all of the requirements in Indiana Code section 35-38-9-2(d), the trial court denied Taylor’s petition for expungement. Indiana Code section 35-38-9-2 states that if all conditions of the statute are met, the trial court shall order the conviction expunged. Nonetheless, the trial court denied the expungement relying on Indiana Code section 35-38-9-9(d), which requires a trial court to consider a victim’s statement before deciding on expungement. We determine that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement. Therefore, we reverse the trial court. [Emphasis by ILB]
NFP civil opinions today (3):

In Re: the Marriage of: Gordon Somerville v. Effie K. Somerville (NFP)

Patrick R. Taylor v. Jason Evans, Curtis Evans, and Chrystal Evans (NFP)

Barbara Wiggles v. Sandlian Management Corporation d/b/a U-Stor Self-Storage (NFP)

NFP criminal opinions today (7):

Joshua Cornett v. State of Indiana (NFP)

K.P. v. State of Indiana (NFP)

Michelle D. Gauvin v. State of Indiana (NFP)

Thomas Curtis Edmond v. State of Indiana (NFP)

Gwendolyn F. Jones v. State of Indiana (NFP)

Daniel Torres v. State of Indiana (NFP)

Ben L. Macon v. State of Indiana (NFP)

Posted by Marcia Oddi on April 17, 2014 12:47 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - New Tax Court opinion, filed April 17th

In Larry G. Jones and Sharon F. Jones v. Jefferson County Assessor, a 6-page opinion, Judge Wentworth writes:

This matter is currently before the Court to decide whether the failure of Larry and Sharon Jones to timely request and file the Indiana Board of Tax Review’s administrative record warrants a dismissal of their original tax appeal. Given the particular facts of the case, the Court finds that their failure does not warrant a dismissal.

Posted by Marcia Oddi on April 17, 2014 11:33 AM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on the Elkhart Four appeals

Yesterday, after posting about an unsuccessful St. Joseph County trial court challenge to a felony-murder charge, the ILB added, about another felony-murder case, now on appeal:

Here is an Oct. 9, 2013 ILB post on the "Elkhart Four" case.

Here is the docket of the appeal of two of the Elkhart defendants (Blake Layman and Levi Sparks) to the Court of Appeals.

Several amicus briefs have been filed in support of these two appellants. Here is one of the amicus briefs, this one submitted by the Indiana Public Defender Council. Notice footnote 1 on p. 3, which begins:

Although this Court cannot overrule an Indiana Supreme Court case, it can — and appropriately has — expressed its respectful disagreement and urged the Indiana Supreme Court to reconsider precedent.
The appeals of two of the "Elkhart Four" have been consolidated into this appeal. The third defendant who was tried (one of the four entered into a plea), Anthony Sharp, is appealing separately. Here is the docket in the Sharp appeal.

The ILB now has obtained a copy of the State of Indiana's 61-page brief in Layman/Sparks.

In addition, the ILB has obtained a copy of the amicus brief prepared for the Juvenile Law Center by Marsha Levick, who is now the attorney of record for the JLC.

Finally, for now, the ILB has obtained a copy of the brief of Appellant/Defendant Blake Layman. I'm told the Layman reply to the State's brief will be filed shortly.

The ILB has not yet obtained a copy of the brief of the second defendant in this appeal, Levi Sparks.

Posted by Marcia Oddi on April 17, 2014 09:55 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Appeals court judges hear arguments in Martinsville school shooting lawsuit"

Zach Myers of FOX59 has a good report on yesterday's Court of Appeals oral argument in MSD of Martinsville v. Rebecca Jackson et al, held at Taylor Universty in Upland, Indiana. From the story:

UPLAND, Ind. (April 16, 2014)– More than three years after two students were injured in a shooting at Martinsville West Middle School, the legal battle continues.

Michael Phelps is already serving a 30-year sentence following his conviction in the March 2011 shooting. But now, the victims in the shooting are going after the Metropolitan School District of Martinsville with a lawsuit. The families of Chance Jackson and Brandon Kent say school officials didn’t do enough to keep the two boys safe.

Attorneys for both sides gave oral arguments before three Indiana Appeals Court Judges Wednesday. The Appeals Court is hearing the case after another judge denied the school district’s motion to dismiss it.

Attorneys for Jackson and Kent argued that staff members at the school didn’t follow their own safety plan well enough to keep Michael Phelps from entering the school on the morning of the shooting. Phelps had been previously banned from school property.

“We’re not arguing against the plan,” said Ian Thompson who represents Kent’s family. “But the failure of these staffers, who specifically knew that Micahel Phelps was, for lack of a better term, public enemy number one at this point. This kid had threatened to blow up the school three weeks prior to this incident.”

Tom Blessing, who represents Chance Jackson and his mother, argued that school staff members failed to prevent Phelps from entering the building.

“So then, Phelps goes by this bike rack within I believe ten for fifteen feet, as the testimony shows, of two staff members who are standing right there and don’t see him.”

The focus of the arguments is important as it pertains to immunity under state law. School officials argue that having the safety plan in place should give the school district immunity.

Attorney Tony Overholt, representing Martinsville Schools, compared the arguments to Monday morning quarterbacking.

“Anybody can always come along and say.. you could have done more, you should have done more, you should have spent more money, you should have done this, you should have done that,” he said.

The school district also countered the victims’ arguments by turning attention back on Chance Jackson himself. The district claims Jackson could have done more to avoid Phelps on that morning. The district says Jackson had several warnings about Phelps coming to the school to confront him, and the two boys had a long history of trash talk between them.

“Chance Jackson was told three times that morning, Michael Phelps is going to come and kick your a**,” Overholt said.

Judges Paul Mathias, Margret Robb and Cale Blackford will decide what happens next. While the Indiana Appeals Court can often come back with a decision in four to six weeks, Judge Mathias said it could take two months with this case. He noted the potential implications for school districts across the state.

Posted by Marcia Oddi on April 17, 2014 09:43 AM
Posted to Indiana Courts

Ind. Courts - "Eight plaintiffs added to Clark Drug Court suit"

Adding to the long list of stories about the Clark County Drug Court program, Charlie White of the Louisville Courier Journal reports:

Eight more Clark County Drug Court program participants are now listed in a federal civil-rights lawsuit, doubling the number of those claiming their rights were violated by county officials involved with its embattled treatment program.

Most in the suit, including the new plaintiffs, say they were jailed longer than the 72 hours allowed before conducting required hearings or having attorneys appointed to represent them.

Some of the plaintiffs claim they were arrested by drug court workers with no arrest powers and faced improper searches or the possibility of being in violation of drug court. The court was suspended in mid-February by the Indiana high court after allegations of unlawful conduct by drug court staff and practices harmful to participants.

“I’ve been trying to figure out why it was being run the way it was,” said Louisville attorney Mike Augustus, who filed the amended complaint in U.S. District Court in New Albany last week. * * *

U.S. District Judge Sarah Evans Barker is expected to decide whether to certify it as a class-action suit.

Augustus believes the number of plaintiffs will rise from 16 to more than 40 based on the “nature of addiction, combined with the consistently applied unconstitutional practices of Clark County Circuit Court 2,” he wrote in the latest complaint. There are currently more than 70 participants remaining in the program.

Posted by Marcia Oddi on April 17, 2014 09:34 AM
Posted to Indiana Courts

Wednesday, April 16, 2014

Ind. Decisions - Supreme Court posts a second opinion today

In Ronnie Jamel Rice v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:

Ronnie Jamel Rice appeals the trial court’s sentencing order, arguing it improperly relies on non-statutory aggravators as a basis for imposing a sentence of life imprisonment without parole. Because we believe the order as revised comports with our precedent and does not represent an abuse of the trial court’s discretion, we affirm. * * *

We find the trial court’s revised order meets the test outlined in Harrison and the trial court did not abuse its discretion. Further, Rice fails to persuade us that his sentence is inappropriate. For these reasons, we affirm the trial court.

Posted by Marcia Oddi on April 16, 2014 02:37 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one, re parole conditions

In David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; et al., a 51-page, 5-0 opinion, Justice David writes:

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program. * * *

We therefore reverse the trial court’s grant of summary judgment in favor of the Parole Board with respect to Bleeke’s additional parole conditions 4, 5, 17, 19, and 20, and remand with instructions that it enter an order enjoining the Parole Board from enforcing those conditions. We summarily affirm the Court of Appeals opinion below [see the ILB summary of the Jan. 23, 2013 COA opinion] with respect to its analysis of Bleeke’s additional parole conditions 8, 15, 17, and 19, and his challenges to Ind. Code §§ 11-13-3-4(g) and 35-42-4-11, and remand with instructions that the trial court also enter an order enjoining the Parole Board from enforcing conditions 8 and 15 unless it clarifies them first, and enjoining the Parole Board from enforcing those statutory parole conditions derived from the unconstitutionally overbroad labeling of Bleeke as an “offender against children.” But we affirm the trial court’s grant of summary judgment in favor of the Parole Board with respect to Bleeke’s remaining additional conditions.

And we likewise affirm the trial court’s grant of summary judgment to the Parole Board with respect to Bleeke’s claims about the constitutionality of the SOMM program. The program is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control, and its requirements do not violate the Fifth Amendment’s privilege against self-incrimination.

Posted by Marcia Oddi on April 16, 2014 12:13 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of M.P., Minor Child, and her Father M.J.P., M.J.P. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Daniel Dodd v. State of Indiana (NFP)

Katrina Baker v. State of Indiana (NFP)

Jeffrey L. Daniel v. State of Indiana (NFP)

Ontorio Frye v. State of Indiana (NFP)

Philip H. Chamberlain v. State of Indiana (NFP)

Jimmy Isbell v. State of Indiana (NFP)

Bryan J. Fields v. State of Indiana (NFP)

Chas J. Harper v. State of Indiana (NFP)

Posted by Marcia Oddi on April 16, 2014 11:26 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Motion to dismiss felony-murder charge denied"

Some quotes from a long story by Madeline Buckley of the South Bend Tribune:

SOUTH BEND -- An attorney for a man who was allegedly involved in a home invasion during which the homeowner shot one of the intruders asked a judge to dismiss the felony murder charge, arguing that it should not apply in cases where an accomplice is the victim.

St. Joseph Superior Court Judge Jane Woodward Miller on Tuesday denied the request, but the motion offers a glimpse into potential future appeals arguments that could challenge current case law on the controversial Indiana statute. * * *

In a motion filed in March, defense attorney Charles Lahey argued that the language of the state’s felony murder statute is at odds with a 1999 Supreme Court decision that determined the charge can be applied when an accomplice is killed in the act of committing a felony.

Palmer no question is incorrectly decided,” Lahey said at a hearing on Tuesday, referring to the Supreme Court case, Palmer v. State.

In Palmer, a panel of judges [sic.] upheld Jesse Palmer’s conviction of felony murder after a correctional officer shot and killed Palmer’s accomplice to a kidnapping.

Lahey referenced a similar case in Elkhart in which a jury convicted three teenagers of felony murder after a homeowner shot and killed an accomplice in a burglary gone awry.

ILB: Palmer v. State is a 3-2, 1999 Indiana Supreme Court opinion, written by Justice Dickson, who is now Chief Justice. He was joined by Justices Boehm and Selby, who are no longer on the Court. The two dissenters, Justice Sullivan and CJ Shepard, also are no longer on the Court. From the dissent:
I do not believe that our statutes authorize the imposition of liability for murder where the defendant's co-perpetrator is the victim.

Our felony murder statute provides: "A person who ... kills another human being while committing or attempting to commit... kidnaping ... commits murder, a felony." Ind.Code § 35-42-1-1. Palmer here did not kill another human being; his co-perpetrator was killed by a law enforcement official. Under the terms of the felony murder statute, Palmer is not guilty of felony murder.

From the majority:
The felony murder language of our murder statute provides: "A person who ... [k]ills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, or carjacking; ... commits murder, a felony."[6]

The statutory language "kills another human being while committing" does not restrict the felony murder provision only to instances in which the felon is the killer, but may also apply equally when, in committing any of the designated felonies, the felon contributes to the death of any person.

The South Bend Tribune story continues:

The case of the “Elkhart Four,” as it is popularly known, sparked resistance to what some said was an unfair application of the felony murder statute.

The three teenagers who went to trial have appealed the conviction and are awaiting a decision from the court, which could lead to a challenge of the Palmer decision down the road.

Lahey acknowledged the uphill battle involved in persuading a local trial judge to rule against the Palmer Supreme Court decision, but he said Indiana is in the minority in its interpretation of a felony murder statute.

“The defendant respectfully urges this court to refuse to follow that holding based on the plain language of the statute,” Lahey’s motion reads.

St. Joseph County Chief Deputy Prosecutor Ken Cotter asked the judge to deny the motion to dismiss the charge, noting that the Palmer decision has been upheld many times.

“The defendant should have known and knew the act could cause someone’s death,” Cotter said.

[Judge] Woodward Miller did deny the motion, saying she does not find the application of the felony murder statute to be unconstitutional [sic.].

“I understand our state is in the minority but I don't find it an unreasonable minority to be in,” she said.

Here is an Oct. 9, 2013 ILB post on the "Elkhart Four" case. Here is the docket of the appeal of two of the Elkhart defendants to the Court of Appeals. Several amicus briefs have been filed in support of the appellants. Here is one of the amicus briefs, this one submitted by the Indiana Public Defender Council. Notice footnote 1 on p. 3, which begins:
Although this Court cannot overrule an Indiana Supreme Court case, it can — and appropriately has — expressed its respectful disagreement and urged the Indiana Supreme Court to reconsider precedent.

Posted by Marcia Oddi on April 16, 2014 10:04 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Hyperlinking is now available in the U. S. District Court for the Southern District of Indiana"

From a notice dated April 11, 2014:

Hyperlinking is now available in the U. S. District Court for the Southern District of Indiana. Attorneys may file documents with active hyperlinks within e-filed documents. Hyperlinks will allow immediate access by the reader to the referenced materials, i.e., CM/ECF filings, case and statute citations, attachments, and exhibits. (Attorneys should check each judge’s practices and procedures to see if hyperlinks are a requirement.) When utilized by attorneys, hyperlinks in briefs and other court filings will provide quick, easy, and pinpoint access to particular sections of a case, specific page numbers, or to specific filings in the court's record. Hyperlinking will allow Judges to quickly and easily review case-supporting materials.

The court will also be issuing court documents with active hyperlinks, and the court-issued documents will continue to be available via the Notice of Electronic Filing ("NEF") email system. NOTE: Even though attorneys can utilize the one “free look” to the e-filed documents associated with the NEF – accessing other CM/ECF hyperlinked documents contained within the main document will be subject to normal PACER fees, and any hyperlinks to Westlaw or LexisNexis citations will require attorneys to login to those services.

For detailed instructions on hyperlinking, please refer to the Attorney Guide to Hyperlinking in the Federal Courts, which can be located on the court’s website.

ILB: Reviewing The Attorney Guide to Hyperlinking, linked above, is essential.

Note also the sentence I highlighted above: "Attorneys should check each judge’s practices and procedures to see if hyperlinks are a requirement." The judges vary as to whether they make their practices and procedures readily available online. Going down the list in the left margin here, I've added a link to the practices and procedures documents of those judges providing such information:

Magistrate judges: None of the copies of practices and procedures linked above make any reference to hyperlinks as of this writing.

Posted by Marcia Oddi on April 16, 2014 09:36 AM
Posted to Indiana Courts

Environment - "Federal Appeals Court upholds Obama EPA rule on toxic air emissions"

James Bruggers reported yesterday in the Louisville Courier Journal in a story that began:

There is big news in the air quality world today.

A major piece of the Obama administration's strategy to clean up power plant pollution has survived a critical test by securing a favorable ruling before a federal Appeals Court.

Later in the story:
A number of states including Kentucky joined industry in trying to get the rule overturned. A spokeswoman for Kentucky Attorney General Jack Conway, who has been trying to bolster his coal cred in advance of a potential run for governor, said she could not comment while the decision was still under review. Indiana also joined the opposition to the mercury and air toxics rule.
Neela Banerjee of the LA Times had a story headed "Appeals court upholds EPA limits on air toxicity: The U.S. Court of Appeals for the D.C. Circuit rejects challenges from both sides of the issue, finding that EPA limits on emissions from coal-fired power plants are valid," that began:
WASHINGTON — A federal appeals court Tuesday upheld the Environmental Protection Agency's first-ever limits on air toxics, including emissions of mercury, arsenic and acid gases, preserving a far-reaching rule the White House had touted as central to President Obama's environmental agenda.

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit found that the rule regulating power plants "was substantively and procedurally valid," turning aside challenges brought by Republican-led states that had argued it was onerous and environmental groups that had contended it did not go far enough.

This story from Reuters includes the name of the opinion: White Stallion Energy Center v. EPA, U.S. Court of Appeals for the District of Columbia Circuit, 12-1100.

Posted by Marcia Oddi on April 16, 2014 09:06 AM
Posted to Environment

Ind. Decisions - Out-of-state attorney reactions to two recent Indiana Supreme Court opinions

Scott H. Greenfield, a NY attorney, writes in Simple Justice, A Criminal Defense Blog about our Supreme Court's March 25th opinion in Joanna S. Robinson v. State of Indiana, a case where the testimony of the arresting officer and the record from his video camera were somewhat at odds. A Public Defender Blog, from "I am Gideon. I’m a public defender in the fictional state of Connecticut," has a less measured response.

Carolyn Elefant, the DC attorney and well-known writer of myShingle.com, had a post April 14th titled "An Indiana Ethics Opinion That May Kill Legal Start Ups." The opinion at issue is In the Matter of Anonymous, a Supreme Court disciplinary opinion from April 11th. A few quotes from her post:

Via the Legal Profession Blog, comes a recent Indiana ethics decision reprimanding a lawyer who’d practiced 41 years without incident for participating Law Tigers , a site that helps members of the public find a motorcycle attorney. Trouble is, in pursuit of a single Tiger that may purportedly cause harm to the public, the Indiana Supreme Court now has the entire fledgling industry of legal matchmaking platforms by the tail. * * *

But what’s worst about the Indiana Supreme Court’s ruling is that no site is safe – including the recent crop of VC-backed client matchmaking sites. Take UpCounsel , a site that small businesses can use to find lawyers. * * *

The way that I read the Indiana Supreme Court opinion, I don’t see any principled way to distinguish LawTiger from the new crop of matchmaking platforms. Which means that the Indiana court decision will have a chilling effect on lawyers in Indiana – and potentially other jurisdictions. And while the Indiana Court may view that as a triumph, in the long run a far worse fate awaits.

Posted by Marcia Oddi on April 16, 2014 08:23 AM
Posted to Ind. Sup.Ct. Decisions

Tuesday, April 15, 2014

Ind. Gov't. - More on follow-up on: "State to lose $63M in tobacco payments next year"

In this post April 14th the ILB mentioned it wasn't able to find the case docket (CSS) for this lawsuit on mycase. A reader has just sent me this note:

The copy of the Dec. 2013 "State Of Indiana’s Motion To Vacate The September 11, 2013, Final Arbitration Award Entered By The Arbitration Panel In The 2003 NPM Adjustment Dispute Proceedings" has a typo in the Cause No.: "CAUSE NO. 49D07-99702-CT-0236." The CCS is online at http://mycase.in.gov/default.aspx under Case Number 49D07-9702-CT-000236 and the "Style" [cause name] is "State Of Indiana Exrel, et. al. vs. Philip Morris, Incorporated, Et Al,, et. al."
This solved the problem, use the case # in bold above if you want to check the Chronological Case Summary.

Posted by Marcia Oddi on April 15, 2014 07:22 PM
Posted to Indiana Government

Courts - "Courtroom Sketch Artist: Art Lien" [Updated]

New Hampshire Public Radio has an over 10-minute interview with Art Lien, courtroom sketch artist. Here is Lien's worth-visiting website. See also two earlier ILB posts on Mr. Lien.

[Updated at 7 PM]
As it turns out, the NYTimes today has a story by Alexandra Stevenson on a new book titled “The Illustrated Courtroom: 50 Years of Court Art,” which:

brings together the work of five courtroom illustrators who chronicled famous trials of the last half-century, including those of David Berkowitz, the so-called Son of Sam; Charles Manson; the Watergate burglars; and O. J. Simpson. The artists — Howard Brodie, Aggie Kenny, Bill Robles, Richard Tomlinson and Ms. Williams — have brought financial chieftains, psychopaths and petty criminals to life for the world outside the courtroom.
The Times story includes a slide show of some of the illustrations. And here is the blog of the book authors, with many illustrations.

Posted by Marcia Oddi on April 15, 2014 01:52 PM
Posted to Courts in general

Law - "Who Is Responsible for the Student Loans After Divorce?"

Charles Wells' "Wealth Mnagement" column in the $$ WSJ April 13th is sub-headed "Misconceptions abound, but how educational debt is divided may depend on where you live." A few quotes:

Legal experts say one of the most common misconceptions about dividing debt in a divorce is the belief that educational debt incurred before a marriage always becomes shared, marital debt once a couple gets hitched.

New York divorce attorney Cari Rincker says her mother once quipped that she couldn't wait for Ms. Rincker to "get married because half of [her] student debt will be his."

Ms. Rincker, who is single, had to correct her mother: Generally, educational debt incurred before a marriage is considered separate property and barring some predetermined contractual agreement, it stays that way after a divorce. "My law-school-loan debt is forever mine," Ms. Rincker says. "No spouse will ever be liable" for it. * * *

Debt division can get a little trickier when the student loans are taken out during the marriage. The person responsible for paying the loans isn't necessarily the person whose name is on them. Indeed, how educational debt is divided may depend on where you live and who benefited from the borrowed money.

Posted by Marcia Oddi on April 15, 2014 01:43 PM
Posted to General Law Related

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

In U.S. v. Henderson (ND Ind., Miller), a 10-page opinion, Judge Bauer writes:

Marcus Henderson (“Henderson”) was indicted for being a drug user in possession of firearms in violation of 18 U.S.C. § 922(g)(3). Prior to trial, the district court judge denied Henderson’s motion to suppress evidence seized during a protective sweep of his home. A jury found Henderson guilty, and the district court judge sentenced him to thirty-nine months’ imprisonment, followed by three years’ supervised release, and the payment of a $100 special assessment. On appeal, Henderson contends that the firearms were discovered pursuant to an unconstitutional search because the protective sweep of his home was unreasonable. For the reasons that follow, we affirm. * * *

The sole issue raised by Henderson on appeal is his claim that the protective sweep was unreasonable because there were no articulable facts that Henderson’s house harbored an individual who posed a threat to those on the scene after Henderson exited.

Posted by Marcia Oddi on April 15, 2014 01:26 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Lucas H. Jackson v. State of Indiana ,, a 6-page opinion, Judge Pyle writes:

Lucas H. Jackson (“Jackson”) appeals the trial court’s revocation of his probation. We reverse.

Issue. Whether the trial court abused its discretion by revoking Jackson’s probation based upon Jackson being charged with an additional offense. * * *

Here, the only probation violation alleged by the State was that criminal charges had been filed against Jackson in Kentucky. The only evidence submitted at the evidentiary hearing was a copy of the indictment against Jackson and the probation officer’s assertion that the indictment constituted a violation of Jackson’s probation that he not commit another crime during probation. The trial court did not determine, by a preponderance of the evidence, that Jackson had actually committed a new criminal offense. Instead, the trial court determined that Jackson was in violation of probation by merely “being charged with a new offense[.]”

Based on the record before us, we conclude that the trial court abused its discretion by revoking Jackson’s probation and we reverse the trial court’s revocation of Jackson’s probation. See, e.g., Martin, 813 N.E.2d at 391 (holding that the fact criminal charges were filed against a probationer did not warrant revocation of probation); Heaton, 984 N.E.2d at 617 (holding that to revoke a defendant’s probation based on the allegation that he committed a new criminal offense, the trial court must find that the evidence established by a preponderance of the evidence that the defendant committed a new criminal offense).

NFP civil opinions today (2):

Antrone Crockett v. Clair Barnes and Mark Sevier (NFP)

Patricia Leslie v. Liberty Dialysis, Inc., Liberty Dialysis-Lebanon, LLC., Witham Memorial Hospital, and NLMP, Inc. (NFP)

NFP criminal opinions today (7):

Tammy Carter v. State of Indiana (NFP)

Edrece Bryant v. State of Indiana (NFP)

Mark Conner v. State of Indiana (NFP)

Lloyd W. Mezick v. State of Indiana (NFP)

Regina Choice v. State of Indiana (NFP)

Kenton T. Winder v. State of Indiana (NFP)

Jason R. Barton v. State of Indiana (NFP)

Posted by Marcia Oddi on April 15, 2014 10:26 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - "Marion County's gun rule stands ... for now"

That is the headline to a fascinating story this morning, reported by John Tuohy in the Indianapolis Star. Some quotes:

The City-County Council voted Monday to let residents in outlying Marion County continue to discharge weapons recreationally, fearing that banning it would violate state law.

Corporation Counsel Andy Seiwert said passing a ban could open the city up to lawsuits because a 2011 gun bill passed by the Indiana General Assembly prohibits cities from passing their own, tougher ordinances.

"The risk of enacting a ban has a great downside," Seiwert said before the meeting.

But a ban has been on the books in ­Indianapolis since at least 1975. It prohibits target practice, hunting and random shooting of guns. Violators are subject to a fine.
City lawyers discovered that the ordinance was actually "void," or unenforceable, because of the state law. Councilwoman Angela Mansfield pressed ahead anyway with an ordinance that would expand the ban to the outer county. She said those once-rural areas are now developed and populated and it was dangerous to allow guns to be discharged there.

Councilman Will Gooden said state law allows citizens to sue municipalities that pass their own gun laws.

"My concern is we are exposing ourselves to extreme consequences, ­extreme liability and extreme costs," Gooden said.

Councilman Ben Hunter called the state law "an affront to home rule" but agreed it was too chancy to challenge it.

Proponents of expanding the ordinance said residents near the White River and Keystone Avenue have been terrified by duck hunters in recent years. They argued it is only a matter of time until someone is struck by gunfire.

Councilwoman Christine Scales, an ordinance proponent, said after the meeting the council had put money ahead of safety.

"We are talking about people's lives, and we are concerned about cost," she said.

It was not immediately clear whether the city needs to repeal its ban to comply with state law.

ILB: Indianapolis has not always suffered from this fear of lawsuit - recall, for example, the various adult bookstore ordinances.

This same question has been considered in Hammond, and perhaps Evansville. The Court of Appeals, in Dykstra v. City of Hammond, considered a case where the city was sued to remove gun ordinances from its books. The ILB has a number of posts on the case, including this one from March 17, 2013, which quoted from a NWI Times story:

HAMMOND | The Indiana Court of Appeals upheld a ruling Friday that two area residents are not adversely impacted by city gun restrictions now voided by state law.

Samuel Dykstra, who lives in Highland and attends college in Hammond, and Michelle Bahus, of Hammond, had sued the city, alleging their rights were violated because gun regulations are still present in city code. * * *

“We feel like the city of Hammond, and Mayor (Thomas) McDermott specifically, intentionally want to leave the ordinances on the books, so they influence people's behavior,” said Guy Relford, the residents' attorney.

The appeals court found that, regardless of whether the ordinances were still in code, the restrictions were voided by a 2011 state law that essentially bars local governments from regulating firearms except in courtrooms.

The ordinances had restricted guns from city buildings or at any city board or commission meeting.

The appeals court stated the city had not adopted or enforced an ordinance in violation of the state law since it took effect in July 2011. The law was meant to curb future gun restrictions or future enforcement of ordinances in place prior to the state law taking effect, the ruling states.

See also this ILB post from March 19, 2013, which comments on the fact that the Hammond opinion had been designated as NFP (it was later changed to FP, and subsequently the Supreme Court denied transfer), and on the fact that the City of Evansville was facing a similar lawsuit in trial court, but the judge had postponed his decision until the Court of Appeals ruled in the Hammond case. Unfortunately, the ILB does not know the outcome of the Evansville case, because the Evansville Courier & Press at about that time went behind a total paywall.

Posted by Marcia Oddi on April 15, 2014 08:35 AM
Posted to Indiana Government | Indiana Law

Monday, April 14, 2014

Ind. Gov't. - More on "Top Indiana lawmaker, family had millions on line in nursing home fight"

Updating this April 10th ILB entry, the Fort Wayne News-Sentinel today contains another AP story by Tom LoBianco on the ethics questions involving Rep. Eric Turner. Rep. Turner is Speaker Pro Tempore of the Indiana House. Some quotes from today's story:

INDIANAPOLIS — Members of the House Ethics Committee who will take up Rep. Eric Turner's case face daunting tasks as they try to answer two questions:
  • Did their powerful colleague violate any ethics rules in privately lobbying against a measure that would have hurt his family's business?

  • And are their own ethics rules substantial enough?
At the center of the inquiry is the Turner family's lucrative nursing home construction business and legislation this past session that would have banned construction of new facilities. * * *

House rules bar formal and public actions that directly benefit a lawmaker. Turner recused himself from votes publicly, but Republican lawmakers say he spoke up in private meetings of the House Republican caucus in the last two days of the legislative session and was successful in killing the ban.

The ethics committee appeared ready to meet last week, but the meeting was pushed off indefinitely. When its members do return, they'll tackle some pointed questions about Turner's actions, ethicists say. * * *

Turner has yet to speak publicly about his arguments inside the Republican Caucus this year. But he was asked about the issue last year, when he worked behind the scenes to clear a path for a multimillion-dollar contract for Utah-based Insure Rite, which was being represented at the Statehouse by his daughter, Jessaca Turner Stults. Asked at the time if he was representing his personal interest or that of his constituents, he scoffed and said he always looks out for the people who elected him first. * * *

Republican House Speaker Brian Bosma first promised an ethics review last spring, following news reports about lawmakers with conflicts of interest. But it was not until Turner's lobbying was reported this year -- and Democratic Party Chairman John Zody called for an investigation of his actions -- that Bosma sought the review.

The relative strength of the House's own ethics rules, and whether they contain too many loopholes, will be one of the chief issues the ethics panel takes on when it meets.

The ILB has located the brief Code of Ethics adopted by the Indiana House of Representatives. Perhaps relevant to the Turner question are paragraphs 5 and 6 of the Code, which appear to be in conflict:
No member of the House of Representatives shall sponsor or cast a vote on any legislative matter, except budget or general revenue bills, that might reasonably be expected to directly result in a substantial increase of his or her non-legislative income. * * *

Every member shall give freely of his or her particular expertise during a discussion or debate upon a given proposition; in doing so the member shall, insofar as it is possible, present the positions of all sides of the proposition.

Recall that the stories report: "Turner recused himself from votes publicly, but Republican lawmakers say he spoke up in private meetings of the House Republican caucus in the last two days of the legislative session and was successful in killing the ban." Notice that the Ethics Code does not seem to be clear even about whether a member who has recused himself from voting on a bill may speak about the bill during public floor debate, much less in private caucus.

Compare this to the judicial branch of government. As I understand it, when a justice recuses at the Supreme Court, he or she leaves the conference room when the case is internally discussed by the other justices. And the recused justice certainly does not participate in oral argument.

Posted by Marcia Oddi on April 14, 2014 03:42 PM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Ball State Univeristy v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband , a 12-page, 2-1 opinion, Judge Barnes writes:

Ball State University (“BSU”) appeals the trial court’s order to release the college transcript of Jennifer Irons’s child, Jordan. We dismiss. * * *

Although BSU did not have a right to appeal the trial court’s order compelling the delivery of the transcript under Appellate Rule 14(A)(3), it could have asked the trial court to certify the order for an interlocutory appeal pursuant to Appellate Rule 14(B). Because BSU failed to have the order properly certified, we must dismiss this appeal.

This appeal was not properly brought under Appellate Rule 14(A)(3). Consequently, we dismiss the appeal.

ROBB, J., concurs.
BROWN, J., concurs in part and dissents in part with separate opinion. [that begins] I concur with the majority’s denial of Jennifer’s request for appellate attorney’s fees but respectfully dissent from the majority’s conclusion that the order does not constitute an interlocutory appeal of right. As the majority notes, Ind. Appellate Rule 14(A)(3) provides an appeal as a matter of right when the appealed order “compel[s] the delivery or assignment of any securities, evidence of debt, documents or things in
action.” Here, the appealed order does exactly that – compels the delivery of a document – by requiring BSU to immediately release an official transcript while admittedly tuition debt remains due and owing.

NFP civil opinions today (4):

Paula Rorer (Hubbard) v. William Shane Rorer (NFP)

In re the Marriage of: Annette M. Huseman, f/k/a Annette M. Mantis v. Angelo N. Mantis (NFP)

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

Jay Darland and Kathleen Darland v. Elizabeth Rupp (NFP)

NFP criminal opinions today (3):

Tyrone A. Thompson v. State of Indiana (NFP)

Jeremy J. Holden v. State of Indiana (NFP)

Donald William Myers, III v. State of Indiana (NFP)

Posted by Marcia Oddi on April 14, 2014 01:31 PM
Posted to Ind. App.Ct. Decisions

Courts - The process for filling the upcoming vacancy resulting from Judge Barker's decision to take senior status

Here is a news release:

Washington, D.C. – Senators Joe Donnelly and Dan Coats today announced the process for candidates interested in the upcoming vacancy on the U.S. District Court for the Southern District of Indiana. Judge Sarah Evans Barker recently announced her intention to take senior status effective June 30, 2014.

Donnelly said, “I thank Judge Sarah Evans Barker for her thirty years of service on the U.S. District Court for the Southern District of Indiana. We have been very lucky to have the benefit of her wisdom and judgment. A Mishawaka, Indiana native, she has dedicated most of her career to government service. In addition to her tenure on the District Court, Judge Barker served as a U.S. Attorney for the Southern District of Indiana, an Assistant U.S. Attorney, and on the staff of a U.S. Senator, U.S. Senate Committee, and a U.S. Representative. She has also spent time in private practice. I look forward to working with Senator Coats to review applications of qualified candidates to replace Judge Barker on the District Court.”

Coats said, “I thank Judge Barker for her many years of distinguished service on the federal bench and wish her the best during this transition to senior status. Hoosiers are fortunate that we will continue to benefit from her wisdom. Federal judges are appointed for life and play a crucial role in our judicial system. One of my Constitutionally defined duties as a Senator is to provide advice and consent to the President on federal judicial nominees, and I take this responsibility seriously.”

To apply, interested candidates should visit www.donnelly.senate.gov/judge and be prepared to submit an application highlighting their qualifications for the position and reason for seeking nomination to the U.S. District Court for the Southern District of Indiana. Applications are due no later than 5 PM EDT on Monday, May 12, 2014.

Posted by Marcia Oddi on April 14, 2014 12:03 PM
Posted to Courts in general

Courts - More on: Ohio federal judge to rule valid out-of-state SSMs must be recognized within Ohio

Updating this ILB post from April 4th, today Ohio U.S. District Judge Timothy S. Black issued the opinion he earlier promised.

Chris Gridner of BuzzFeed has the story and ruling here.

Posted by Marcia Oddi on April 14, 2014 11:53 AM
Posted to Courts in general

Ind. Decisions - Transfer list for week ending April 11, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Dec. 20, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, April 11, 2014. It is two pages (and 23 cases) long.

Five transfers were granted last week:

  • Wellpoint, et al v. National Union Fire, et al (NFP) - This was a June 19, 2013, 2-1 NFP opinion.

  • Barbara J. Pohl v. Michael G. Pohl - this was a Nov. 26, 2013 COA opinion re post-dissolution spousal maintenance.

  • Joseph K. Buelna v. State of Indiana (NFP) - this was a Jan. 30, 2014 NFP opinion appealing a conviction and sentence for manufacturing methamphetamine.

  • Jonathan D. Carpenter v. State of Indiana - this was a Feb. 20, 2014 COA opinion (4th case) where the COA wrote, in part: "Trimble and Davis dealt with whether the conditions of animals could constitute exigent circumstances justifying warrantless searches of areas outside of the homes. In the case before us, the investigation extended into the house only when one of the dogs, which was covered in blood, entered the home through an open door and would not come out."

  • In the Matter of the Guardianship of N.R., N.R. v. Eva Willis, et al. - In this case the docket reveals: "The court of appeals dismissed this appeal in an order dated July 26, 2013. The case is before this court on appellant's petition to transfer jurisdiction in accordance with Indiana appellate rules 56(b) and 57(b). The court grants appellant's transfer petition, vacates the court of appeals order dismissing the appeal, and remands the case to the court of appeals for consideration on the merits."
Also of interest on the transfer list for last week is that the Supreme Court has denied transfer to both appellant and appellee by a 3-1 vote in the case of IBM v. ASC Human Services. See this ILB post from earlier today for more information.

Posted by Marcia Oddi on April 14, 2014 09:41 AM
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court denies transfer in an IBM case

The Supreme Court has denied transfer to both appellant and appellee by a 3-1 vote in the case of IBM v. ASC Human Services. This leaves in place the Nov. 26, 2013, Court of Appeals opinion. Here is the COA summary of its opinion:

International Business Machines Corp. (“IBM”) and the State of Indiana (“the State”) filed lawsuits against one another related to the State’s Family and Social Services Administration (“FSSA”) modernization initiatives. The trial court ordered IBM to pay $709,398.95 in costs related to discovery and production of documents incurred by a non-party, ACS Human Services, LLC (“ACS”). Later, the trial court imposed sanctions totaling $425,178.85 against ACS in favor of IBM.

IBM and ACS each appeal. IBM seeks vacation of the costs assessed against it in favor of ACS. ACS cross-appeals, seeking an increase in the costs assessed against IBM and vacation of the sanctions assessed against it in favor of IBM.

We affirm.

Note that this is NOT the Feb. 13, 2014 Court of Appeals opinion (State of Indiana, acting on behalf of the Indiana Family & Social Services Administration v. International Business Machines Corporation) affirming the trial court’s award of $40 million in assignment fees and $9,510,795 in Equipment fees to IBM.

Posted by Marcia Oddi on April 14, 2014 09:29 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - A follow-up on: "State to lose $63M in tobacco payments next year" [Updated]

The ILB had several entries on this topic in 2013.

  • This entry from Oct. 17, 2013 reported that a three-judge panel had reduced Indiana’s payment from $131 million to $68 million. Quoting ILI: "arbitrators determined that [for the year 2003] Indiana, Kentucky, Maryland, Missouri, New Mexico, and Pennsylvania failed to 'diligently enforce' the relevant 1998 Tobacco Master Settlement Agreement (MSA) provision, resulting in reductions in payments to which they would otherwise have been entitled."

  • This lengthy Oct. 21, 2013 ILB post goes into all the detail, some of it quite eye-opening, particularly as to attorney fees paid to a former AG.

  • This Dec. 4, 2013 ILB post reported that Indiana was appealing the ruling, via a motion by Attorney General Zoeller, "filed in Marion County Superior Court, which has jurisdiction over the settlement in Indiana."
The ILB has now obtained and is posting a copy of the Dec. 2013 "State Of Indiana’s Motion To Vacate The September 11, 2013, Final Arbitration Award Entered By The Arbitration Panel In The 2003 NPM Adjustment Dispute Proceedings."

The ILB has been unable to determine the status of this case, filed in Marion County Superior Court. (Perhaps a reader can help?)

And why is all this suddenly news again?

For one, the issue was raised during the recently ended legislative session, e.g. this NUVO story headed "Lawmakers confused by cut in state's tobacco funds."

For another
, although there has been no sign of a ruling in the Indiana trial court challenge, a decision was reached last week in a similar challenge in Pennsylvania, another of the five states whose payments have been reduced because of lack of diligent enforcement of the MSA in 2003.

Here are some quotes from an April 10th story by Jeff Frantz at PennLive:

Last fall, an arbitration panel ruled that in 2003 the Commonwealth hadn't strictly enforced all the provisions in the landmark Tobacco Master Settlement Agreement. As a result, the arbiters ruled, Pennsylvania would receive about $150 million from the settlement this year, instead of the $330 million check the state typically receives every April.

The state appealed the ruling.

Knowing less money could be coming in this year, the state reduced funding for non-mandated programs like the CURE grants that settlement money helps to fund.

Thursday, Philadelphia Court of Common Pleas Judge Patricia McInerney modified the arbiters' ruling. While Pennsylvania won't receive its full sum, McInerney's order means it will only lose out on about $60 million this year.

Here, from The Pennsylvania Record, is an April 13th story by Jon Campisi. Some quotes:
The commonwealth will recoup $120 million from the Tobacco Master Settlement Agreement that was withheld because of an arbitration panel’s finding that Pennsylvania failed to “diligently enforce” tobacco tax collection laws.

The news stems from a decision by Philadelphia Common Pleas Court Judge Patricia McInerney, who determined that the arbitration panel ignored the plain language of the 1998 master settlement agreement, which did not allow for such a financial shift. * * *

The commonwealth argued that the panel’s final award disregarded the law and was “wholly irrational.”

Kane’s office contended that the panel announced the definition and the factors it would rely upon for the first time in the final award, or after the evidence was presented.

The panel also applied its own “manufactured definition irrationally,” the commonwealth had stated in its November 2013 motion.

The motion noted that the arbitration panel anchored its final award to the number of lawsuits Pennsylvania brought to enforce the settlement agreement and its collection rate of 44 percent.

However, the commonwealth’s litigation policy focused on those entities with significant noncompliant sales, the motion had stated.

The motion also noted that in 2003, Pennsylvania prosecuted a total of six civil actions against noncompliant companies, including five that represented 80 percent of applicable tobacco sales in Pennsylvania.

Three other states, Colorado, North Dakota and Illinois, however, failed to bring any civil litigation against noncompliant companies, yet those states were found diligent by the panel, Pennsylvania argued.

Here is the 57-page Pennsylvania trial ruling. It likely will be appealed.

[Updated at 12:52 PM] In answer to the ILB question re the status of the action in Marion County Superior Court, Bryan Corbin, Public Information Officer, Office of the Indiana Attorney General, responds:

The State’s appeal still is pending before the Marion County Superior Court, the motion to vacate is currently in briefing and a hearing is scheduled for mid-July.

Posted by Marcia Oddi on April 14, 2014 08:50 AM
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/14/14):

  • No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 4/21/14):

Thursday, April 24

  • 9:00 AM - Curtis Sample v. State of Indiana (45S03-1401-CR-11) Sample was convicted of murder, see Sample v. State, 932 N.E.2d 1230 (Ind. 2010), and on remand, was found to be an habitual offender. During the habitual offender phase, the State called witnesses who testified that the victim in the predicate offenses had mental health issues. Citing Hollowell v. State, 753 N.E.2d 612 (Ind. 2001), the Court of Appeals affirmed in Sample v. State, No. 45A03-1302-CR-52 (Ind. Ct. App. Sept. 19, 2013) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 9/19/13 NFP COA opinion where the issue was "Did the trial court commit reversible error in permitting prosecution witnesses to testify that the victim of two predicate offenses was mentally infirm?" The opinion ends with this interesting statement:

    Sample urges us to adopt the contrary view expressed by Justice (now Chief Justice) Dickson and Justice Rucker in Hollowell (2001). It is not within our prerogative to do so, as that view was expressed in a dissenting opinion, and did not carry the day. Pursuant to Hollowell, the trial court did not err in permitting Ryan and Papadakis to testify about the memorable aspect of the case in which each was, respectively, involved.

  • 9:45 AM - Robert Corbin v. State of Indiana (75S03-1401-CR-13) Corbin, a teacher, sent messages to a student asking her to take care of his sexual arousal, to sneak out of the house so he could pick her up, etc. Corbin was charged with attempted child seduction, IC 35-42-4-7. The Starke Circuit Court denied Corbin’s motion to dismiss. In this interlocutory appeal, the Court of Appeals reversed, deciding that Corbin’s internet-based solicitations did not constitute a substantial step toward the crime of child seduction. Corbin v. State, 999 N.E.2d 70 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is an 10/11/13 opinion, in a case involving Facebook solicitations, where the COA concluded: "Corbin did not take the substantial step required to amount to attempted child seduction."

  • 10:30 AM - Seth A. Miller v. State of Indiana (63A01-1210-CR-475) Following a jury trial in Pike Circuit Court, Miller was convicted of Corrupt Business Influence, IC 35-45-6-2, and other offenses. The Court of Appeals reversed this conviction on grounds there was insufficient evidence to establish the element of an “enterprise” within the meaning of the statute. Miller v. State, 992 N.E.2d 791 (Ind. Ct. App. 2013), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This is a July 31, 2013 COA opinion in a case including a conviction for Corrupt Business Influence:

    The evidence in this case simply fails to establish the necessary element of an enterprise within the meaning of the statute. Accordingly, we need not reach the additional issue of whether their episode of conduct qualifies as a pattern of racketeering activity. The conviction for corrupt business influence is reversed and the sentence of eight years thereon is vacated. In all other respects the judgment is affirmed.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/14/14):

Tuesday, April 15

  • 1:00 PM - Andrew J. Rogers v. Sigma Chi International Fraternity, et al (84A04-1305-CT-224) Andrew Rogers was physically assaulted during a party at a house rented by some members of Sigma Chi’s Terre Haute chapter. He sued the international fraternity, the local chapter, and certain individuals for his injuries. The trial court granted summary judgment for the defendants. Rogers argues on appeal the defendants were in possession of the house for premises liability purposes and they had a duty to protect Rogers from a foreseeable criminal attack by a third party while he was there. The Scheduled Panel Members are: Judges May, Brown, and Senior Judge Barteau. [Where: University of Southern Indiana, Carter Hall, Evansville, Indiana]

  • 3:00 PM - Tuggle v. State (49A05-1308-CR-413) Tuggle arrived at an Indianapolis hospital emergency room, claiming to be the victim of a shooting and an armed robbery. Although the police seized Tuggle’s clothing from the hospital and obtained a search warrant prior to performing any DNA testing, Tuggle contends that the DNA test results confirming that Tuggle was a suspect in another shooting should not have been admitted into evidence. Tuggle argues that he never relinquished any privacy rights in his property and the clothing showed no immediate apparent incriminating characteristics. Thus, Tuggle claims that the initial seizure of his clothing violated his rights to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution and Article I Section 11 of the Indiana Constitution. Therefore, Tuggle contends that the results of the DNA testing on the clothing were improperly admitted into evidence. The State counters that the clothing was properly seized and secured under both the plain view doctrine and the presence of exigent circumstances. The State argues that a search warrant allowing the DNA testing was properly obtained, and there was no violation of either the Fourth Amendment or the Indiana Constitution. Hence, the State asserts that the results of the DNA testing pointing to Tuggle as a suspect of the murder were properly admitted into evidence. Tuggle was ultimately convicted of murder and sentenced to fifty years of incarceration. This appeal ensues. The Scheduled Panel Members are: Judges Baker, Barnes, and Crone. [Where: Supreme Court Courtroom (WEBCAST)]

Wednesday, April 16

  • 1:30 PM - MSD of Martinsville v. Rebecca Jackson et al (55A01-1304-CT-182) After Martinsville West Middle School students Chance Jackson and Brandon Kent were injured during a school shooting by former student Michael Phelps, Jackson and Kent filed a lawsuit against the Metropolitan School District of Martinsville alleging that the School District breached its duty to keep Jackson and Kent safe. The School District filed a motion for summary judgment, which the trial court denied. The School District now appeals the trial court's order denying its motion for summary judgment, arguing that it is immune from liability under the Indiana Tort Claims Act, that the shooting was not foreseeable, and that the School District did not breach its duty to Jackson and Kent, and that Jackson was contributorily negligent. The Scheduled Panel Members are: Judges Robb, Mathias, and Bradford. [Where: Taylor University, 236 W. Reade Ave., Upland, IN]

Next week's oral arguments before the Court of Appeals (week of 4/21/14):

Thursday, April 24

  • 10:30 AM - Betina Pierson v. Service America Corp., et al (49A02-1307-CT-561) Trenton Gaff was intoxicated when his vehicle struck and killed twelve-year-old Tierra Rae Pierson and injured twelve-year-old January Canada. Earlier in the day, Gaff had attended a Colts game at Lucas Oil Stadium and had consumed alcoholic beverages at a pre-game tailgate party, during the game, and at a post-game tailgate party. Separate lawsuits were filed on behalf of Pierson's estate and Canada, alleging that Centerplate, the vendor of alcoholic beverages at Lucas Oil Stadium, had violated Indiana's Dram Shop Act by providing alcoholic beverages to a visibly intoxicated person and had committed common law negligence by failure to adequately train servers. The trial court granted summary judgment to Centerplate, concluding that there was no evidence that a Centerplate designee served alcohol to Graff while he was visibly intoxicated. Pierson claims that genuine issues of material fact preclude summary judgment and that the trial court did not view the evidence in the light most favorable to the non-movant, as required by the Indiana summary judgment standard. The Scheduled Panel Members are: Judges Najam, Bailey, and May. [Where: New Castle High School, 801 Parkview Drive, New Castle, IN]
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.

Posted by Marcia Oddi on April 14, 2014 08:40 AM
Posted to Upcoming Oral Arguments

Friday, April 11, 2014

Ind. Decisions - Supreme Court issues private reprimand in attorney advertising case

In In the Matter of: Anonymous, a 7-page, 5-0 opinion, the Court writes:

We find that Respondent engaged in attorney misconduct by making false or misleading communications regarding legal services and by failing to include an office address in a public communication. For this misconduct, we conclude that Respondent should receive a private reprimand.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. * * *

[This case concerns respondent's involvement with the American Association of Motorcycle Injury Lawyers, Inc. ("AAMIL") and their website]

The Commission charged Respondent with violating these Professional Conduct Rules1 prohibiting the following conduct:
7.1: Making false or misleading communications regarding services, e.g., statistical data, information based on past performance, testimonials.
7.2(c): Failing to include an office address in a public communication.
7.3(d): Accepting referrals from an unqualified referral service.
7.3(e): Improperly giving something of value for a recommendation.
7.5(a)(4): Use of an improper trade name. * * *

Under the totality of the circumstances of this case, the Court agrees with the hearing officer's conclusions that the average viewer would not differentiate between Respondent and the statements about Law Tigers on the AAMIL website and that Respondent is therefore responsible for objectionable content on the website. The Court concludes that Respondent violated current Rule 7.1 and prior Rule 7.2(d) through his association with the AAMIL website. * * *

Remaining charges. The hearing officer found that the Commission had failed to adequately establish its remaining charges. This Court will defer to the hearing officer's findings on these issues. * * *

The hearing officer recommends that Respondent be given no discipline harsher than a private reprimand. The Commission concedes that a private reprimand would be within the range of appropriate discipline in this case. Accordingly, the Court will impose a private reprimand for Respondent's misconduct.

Posted by Marcia Oddi on April 11, 2014 03:51 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Analysis of the Indiana Supreme Court’s First Quarter Opinions (Criminal Cases)

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

Has the unanimity that marked the first year of the newly comprised Indiana Supreme Court continued? Is a year an unusually long time to wait for an opinion from the Indiana Supreme Court? This post tackles both questions and more through an analysis of opinions in criminal cases decided in the first quarter of 2014.*

The parties, lawyers, and interested public have been waiting more than a year for an opinion in the high profile Brewington v. State case. The case was transmitted to the Indiana Supreme Court on March 26, 2013. Oral argument was held September 12, 2013. Nearly seven month later, still no opinion. Although I won’t predict an outcome, based on the oral argument questioning and subsequent delay I would be surprised if the opinion is unanimous; the writing of separate opinions and accompanying revision(s) of the draft majority opinion generally add considerably to the time it takes to decide a case.

The following chart considers the timing of opinions, authorship and unanimity, and whether the Court of Appeals and trial court were affirmed or reversed in the criminal cases decided last quarter.

Nine Month Average

The wait from arrival at the Supreme Court to the rendering of an opinion ranged from 167 days in an appeal from the State involving credit time (State v. Lotaki) to nearly a year in the high profile Christopher Smith v. State appeal that addressed a principal’s failure to “immediately” report child abuse. The average was 278 days.

That time period can be broken into three general categories. The shortest period is from the transmission of a case to the Supreme Court to a decision on whether to grant transfer. This took only two and a half weeks in some cases to just under two months in the only juvenile delinquency appeal decided last quarter. Adult criminal cases are generally sent directly to each justice to evaluate before the Court’s weekly conference, while juvenile delinquency (and most civil cases) are delayed a few weeks while a memo is prepared by staff attorneys in the Supreme Court Administration office. Excluding the one juvenile appeal, the court took an average of just three weeks to make a transfer decision.

After transfer is granted, oral argument is generally scheduled, although the order setting argument may not be issued for several weeks or longer. Arguments were heard in as short as two months (Robinson) or as longer than six months (Smith and Coats). The average delay from transfer grant to oral argument was 140 days.

Finally, after hearing oral argument, the Indiana Supreme Court sometimes decided criminal cases in as short as two months (Alexander) or longer than six months (Robinson). The average was 133 days.

Decline in Unanimity

Only six of the nine opinions (67%) were unanimous. Inman generated a concurring opinion from Justice Massa, while Robinson and Smith each generated dissenting opinions written by Justice Rucker. Not surprisingly, the cases with separate opinions took longer (an average of 171 days from oral argument) than the unanimous opinions, which were issued more quickly (only 104 days after argument). Considering the total period of time from arrival at the supreme court, the two per curiam opinions were the quickest to receive a decision (an average of only 204 days), which is expected because the Court usually issues per curiam opinions in straightforward cases in which the justices are unanimous.***

Trial courts fared well in transfer opinions; the Court of Appeals did not

The trial court was affirmed in seven of the nine cases in which the supreme court issued opinions. What is more, the importance of deferring to trial courts was emphasized in at least two of the cases. In Keck, which was decided along with Robinson, Justice Massa explained:

when it comes to suppression issues, appellate courts are not in the business of reweighing evidence. And we reiterate that principle today; our trial judges are able to see and hear the witnesses and other evidence first-hand. But the appellate bench, in a far corner of the upper deck, doesn’t provide such a clear view. Remote from the hearing in time and frequently in distance, we review a cold paper record. Thus, unless that record leads us to conclude the trial judge made a clear error in his findings of fact, we will apply the law de novo to the facts as the trial court found them.
The only two cases in which the trial court was reversed were appeals by the State. In Coats, the supreme court reversed a trial court’s refusal to commit an incompetent defendant suffering from Alzheimer’s disease to the Division of Mental Health and Addiction (DMHA): “By finding Coats not competent to stand trial but refusing to order commitment, the trial court did not follow the law as it is written.” In Lotaki, the trial court erred by ordering jail credit time for a mandatorily consecutive sentence.

Finally, although the supreme court sometimes reaches the same result as the court of appeals, a grant of transfer was almost always greeted with a different outcome during the past quarter. The two exceptions were Keck, in which the court of appeals had affirmed the trial court’s grant of a motion to suppress, and I.T., where the supreme court disagreed with the court of appeals’ dismissal of the State’s appeal but nevertheless reached the same outcome in favor of the juvenile by “constru[ing] the Juvenile Mental Health Statute’s limited immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delinquency.”
___________________
*A separate post will provide similar analysis for civil cases decided during the first quarter.

**The first four columns in the chart consider the number of days for various time periods of each appeal to the Indiana Supreme Court: transmission on transfer to grant of transfer; grant of transfer to oral argument; oral argument to opinions; and the total amount of time. If one or more of these steps did not occur in a case, the box was left blank. The next two columns address the authoring justice (by initials) and any dissenting justices. U=unanimous opinion; C=concurring opinion. Finally, the last two columns consider whether the outcome of the court of appeals’ opinion and the trial court’s decision were affirmed or reversed by the supreme court.

***Although not a criminal case and therefore excluded from this analysis, the justices issued a per curiam opinion last quarter in the Judge Kimberly Brown judicial ethics case. That non-unanimous decision was issued only 32 days after the Commission’s reply brief was filed.

Posted by Marcia Oddi on April 11, 2014 02:45 PM
Posted to Schumm - Commentary