Friday, February 03, 2012
Courts - Banks created "bizarre and complex end-around of the traditional public recording system"
MERS in the spotlight. "New York Sues 3 Big Banks Over Mortgage Database" is the headline to a story from Reuters posted tonight by the NYT. A few quotes:
Attorney General Eric T. Schneiderman of New York sued three major banks on Friday, accusing them of fraud in their use of an electronic mortgage database that he said resulted in deceptive and illegal practices, including false documents in foreclosure proceedings. * * *The database, called the Mortgage Electronic Registration System or MERS, was created in the mid-1990s for tracking mortgage ownership. * * *
“The mortgage industry created MERS to allow financial institutions to evade county recording fees, avoid the need to publicly record mortgage transfers and facilitate the rapid sale and securitization of mortgages en masse,” Mr. Schneiderman said.
“By creating this bizarre and complex end-around of the traditional public recording system,” Mr. Schneiderman’s lawsuit asserts, the banks saved $2 billion in recording fees.
More than 70 million mortgage loans, including millions of subprime loans, have been registered in the MERS system, rather than in local county clerks’ offices, according to the lawsuit.
Posted by Marcia Oddi on February 3, 2012 07:07 PM
Posted to Courts in general
Ind. Gov't. - Stories to read while the Charlie White jury is deliberating
Carrie Ritchie in the Indy Star: "Jury deliberating Charlie White's vote-fraud charges."
Charles Wilson of the AP: "Ind. election chief's voter fraud trial nears end."
Posted by Marcia Oddi on February 3, 2012 01:55 PM
Posted to Indiana Government
Ind. Decisions - Two 7th Circuit opinions today from Indiana
In Larry Davis v. Kris Ockomon, et al. (SD Ind., Lawrence), a 14-page opinion, Judge Kanne writes:
Larry Davis was terminated from his position as Senior Humane Officer (“SHO”) for the City of Anderson after refusing to support the successful mayoral campaign of Kris Ockomon. Davis brought suit in district court, claiming that the position of SHO was not subject to political termination and that his dismissal violated the First and Fourteenth Amendments. The district court, relying on an official job description, found that the SHO was a policymaking position, and therefore Davis could be dismissed for political reasons. We affirm on the basis that City ordinances authorized the SHO to exercise policymaking discretion. * * *In US v. Eller (ND Ind., Miller), an 11-page opinion, Judge Bauer writes:We find the applicable ordinances vest the SHO with policymaking authority and render political loyalty an appropriate consideration. Therefore, we AFFIRM the judgment of the district court.
On August 13, 2009, Gregory G. Eller was indicted for one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1), one count of possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c), and one count of possession of a firearm by an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3). Eller pleaded guilty to the first and third counts, and not guilty to the second count. A jury convicted Eller on the second count and the court sentenced him to 60 months in prison, to be served consecutively to his sentences for counts 1 and 3, followed by three years of supervised release, and a $300 special assessment. This appeal followed. We affirm.
Posted by Marcia Oddi on February 3, 2012 11:50 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
NFP criminal opinions today (3):
Elmer J. Bailey v. State of Indiana (NFP)
Roslyn Adkins v. State of Indiana (NFP)
Jerry Williams v. State of Indiana (NFP)
Posted by Marcia Oddi on February 3, 2012 11:06 AM
Posted to Ind. App.Ct. Decisions
Vacancy on the Supreme Court 2012 - Schedule and applications now posted
Here is the interview schedule.
Here are the photos and applications of the 15 candidates.
Posted by Marcia Oddi on February 3, 2012 10:16 AM
Posted to Vacancy on Supreme Court 2012
Courts - More on "9th Circuit won't release CA gay marriage trial videos"
Yesterday we learned (ILB entry here) the 9th Circuit won't permit the release of the video of the Prop. 8 trial, but today the WSJ Law Blog has an entry by Joe Palazzolo that begins:
The Proposition 8 trial has already been done on Broadway. Now it’s headed to Tinseltown with a fresh cast, including George Clooney as David Boies (Boies, Schiller & Flexner) and Martin Sheen as Ted Olson (Gibson, Dunn & Crutcher).The headline: "Clooney Lands Role of a Lifetime: Playing David Boies in ’8′."The two will read selections from the 2010 trial over California’s voter-mandated gay marriage ban.
Posted by Marcia Oddi on February 3, 2012 09:57 AM
Posted to Courts in general
Vacancy on the Supreme Court 2012 - Applicant Information And Interview Times Of Those Seeking Position On High Court?
Interviews scheduled to start next Wednesday. Watching for info to be posted for public review ...
Posted by Marcia Oddi on February 3, 2012 09:47 AM
Posted to Vacancy on Supreme Court 2012
Ind. Decisions - "Gibson County attorney convicted of child pornography faces voyeurism charges"
The Jan. 31st COA ruling in William R. Wallace v. State of Indiana is the subject of a story today by Mark Wilson of the Evansville Courier & Press. Some quotes from the long story:
PRINCETON, Ind. — A Gibson County attorney already sentenced for possessing child pornography and obstructing justice can be charged with voyeurism, the Indiana Court of Appeals has ruled.See also this ILB entry from Feb. 1st.However, the ruling is unclear in its scope and could have broader legal ramifications, said Scott Danks, the attorney representing William R. Wallace III, in the case.
“My concern with the ruling is that it’s a real slippery slope. This could make it illegal to have security cameras in your house,” Danks said. * * *
The law under which Wallace was charged is often referred to as the peeping statute. It is a misdemeanor but becomes a felony if it is done with a camera.
It is meant to apply to peeping into places where people can be expected to disrobe, not situations of consensual sex in which both people can expect the other will see them naked, Danks said.
“To me, the clear intent of the statute is the peeping. The peeping aspect just doesn’t apply here,” he said.
While neither side has disputed that the recording was made, Danks said the ruling doesn’t distinguish between recording made by security cameras as part of everyday use and situations such as Wallace’s. He said it could affect those who keep security systems inside their own homes to protect against false allegations.
“Wallace’s intent was different. He was recording it for his own pleasure. His intent was different and I think they need to clarify that,” Danks said. “I think they just need to make a distinction.”
The opinion, by a panel of three judges, upheld Penrod’s decision not to dismiss the charge “because the alleged facts, if ultimately proven true, could support a conviction for Class D felony voyeurism.”
The opinion by Judges Cale Bradford and James Kirsch said the voyeurism charge would apply because Wallace turned on the camera — in a laptop computer, according to Danks — before she entered the room and left it running afterward.
In a separate but concurring opinion, Judge Michael Barnes said he was reluctant to agree because of the voyeurism statute’s wording.
“Make no mistake, Wallace’s alleged conduct was hardly chivalrous, and he defines the word cad,” Barnes wrote. “However, the voyeurism statute was drawn primarily to punish persons who peep into bathrooms, locker rooms, dressing rooms and the like.”
But he said the camera Wallace set up did peep. “Although a camera by itself cannot commit a crime, the recording it made permitted Wallace to repeatedly view (the woman) naked and engaging in sex with him. (She) did not consent to being seen naked repeatedly by Wallace,” Barnes wrote.
He said that action fit the General Assembly’s definition of peeping as a “looking of a clandestine, surreptitious, prying or secretive nature.”
the intent of the peeping statute did not fit the consensual nature of the encounter between Wallace and the woman.
Posted by Marcia Oddi on February 3, 2012 09:31 AM
Posted to Ind. App.Ct. Decisions
Ind. Gov't. - "Indiana Secretary of State Charlie White declines to testify at his trial"
Here is Carrie Ritchie's story in this morning's Indianapolis Star on yesterday's events in the White election fraud trial. From the story:
[W]hen it came time Thursday for him to tell a Hamilton County jury his side of the story, White passed.His attorney, former Marion County Prosecutor Carl Brizzi, said the defense would present no evidence or witnesses in White's favor.
It's a risky move, said Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law in Indianapolis, but it might pay off.
Schumm said it's not uncommon, and it sometimes helps defendants win because it can call a jury's attention to the state's lack of evidence.
But, he said, "I think sometimes it can backfire if the jury perceives the state's case as being strong and they don't have anything else to look at."
White could know today whether his risk will be rewarded. Both sides will present their closing arguments this morning, and then the jury will begin deliberating.
That means the jury could reach a verdict today.
Posted by Marcia Oddi on February 3, 2012 08:45 AM
Posted to Indiana Government
Indd. Courts - "Milwaukee attorney banned from federal courts in Wisconsin, Illinois and Indiana."
The 7th Circuit decision from Feb. 2, 2012 is In Re: Bridget Boyle-Saxton.
Today Bruce Vielmetti of the Milwaukee Journal Sentinel has the story. It begins:
If you're a lawyer, it's never wise to ignore "orders to show cause," especially when they're coming from a federal appeals court.Milwaukee criminal defense attorney Bridget Boyle-Saxton learned that the hard way Thursday, when the U.S. 7th Circuit Court of Appeals banned her from further practice in the federal courts in Wisconsin, Illinois and Indiana. Boyle handles a significant number of cases in federal court.
"She is unfit to practice law in this court," the court ordered. "Abandonment of a client in a criminal case is reprehensible. Ignoring orders entered by a court is inexcusable. We have disbarred lawyers in similar circumstances."
Boyle-Saxton said Thursday she hadn't seen the order and seemed surprised. She did not respond to a request for comment by the end of Thursday.
Posted by Marcia Oddi on February 3, 2012 08:36 AM
Posted to Indiana Courts
Ind. Courts - "WLKY Investigates: Paying For Prosecutor’s Problem"
A fascinating story from WLKY.com, Louisville, relating to Floyd County Prosecutor Keith Henderson. Recall that Henderson:
... the lead prosecutor in Camm’s second murder trial had privately signed an agreement to write a book about the case in 2006, shortly after Camm’s conviction.As has been reported in earlier IBL entries, the trial court found no conflict, the COA found there was indeed a conflict, and a transfer petition filed by AG Zoeller is now pending before the Supreme Court.But the Camm case wasn’t over. His conviction was overturned for a second time.
Defense attorneys seized on Henderson’s book deal.
In 2009, Camm’s attorney, Richard Kammen, announced, “It’s all about the book,” as he filed a motion to appoint a special prosecutor and remove Henderson from the case because of the claim of conflict.
Now more from the lengthy WLKY story, reported by Duane Pohlman:
While the question of conflict is now before the Indiana Supreme Court, there is another issue the prosecutor faces: an ethics complaint filed with the Indiana Disciplinary Commission, which investigates claims of attorney misconduct.See the WLKY story for much more.While the commission cannot confirm there is a complaint, there is plenty of paperwork to show it exists, primarily bills from the prosecutor’s legal team.
That team of attorneys is with Frost Brown Todd LLC, in Indianapolis. Records show they are charging Henderson $375 an hour to deal with the complaint. The total legal bill already totals nearly $10,000.
Last June, Henderson asked for and got the Floyd County commissioners to pay the legal bills associated with the complaint. * * *
"If they made the decision to pay him, that's beyond me,” criminal defense attorney Bart Adams said.
Adams is not associated with the case. WLKY asked him what he thought of the prosecutor getting reimbursed for his legal fees to defend against an ethics complaint.
"He was asking as an individual and not within the scope of his duties, because he was attempting to enrich himself by the selling of this book," Adams said. “Had it been me, I never would have asked for reimbursement."
Posted by Marcia Oddi on February 3, 2012 08:08 AM
Posted to Indiana Courts
Thursday, February 02, 2012
Ind. Courts - Expedited Super Bowl court deemed success
Watch this evening's story on WRTV 6. A sample:
A first-of-its-kind court aimed at expediting complaints against those found in violation of local ordinances is also proving successful, officials said."We are not aware of any other Super Bowl jurisdiction that has done something like this, so it really has been an experiment," said City Prosecutor Hellen Marchal.
Just in the last week, code enforcement officials have issued 18 citations for unlicensed cab companies, peddle cab operators with unsafe equipment, mobile advertisers and individuals handing out free samples of products and merchandise.
Posted by Marcia Oddi on February 2, 2012 06:55 PM
Posted to Indiana Courts
Ind. Decisions - Supreme Court posts one in early evening
Notice of posting just tweeted by Court's press office.
In Michael B. Adams v. State of Indiana, a 10-page, 5-0 opinion, Chief Justice Shepard writes:
The question here is whether an automobile passenger riding down the highway with a jar of marijuana between his legs can be found to have “used the vehicle” in committing the offense of possessing marijuana. We conclude that he can. * * *When viewed in the light most favorable to the judgment, the evidence shows that Adams possessed a jar of marijuana by keeping the jar on the floorboard in front of him while he sat in the passenger seat. As a result, this is not a situation in which a defendant merely happened to possess a small bag of marijuana in his pocket without making any direct use of the vehicle to do so. Indeed, the trial court could well have found that Adams used the floorboard of the front well to possess the jar so Trooper Caddell would not catch him holding it in his hands when Trooper Caddell came to the window.
As a result, we think the court properly ordered Adams’s driver’s license, registration, and ability to register other vehicles suspended, as the statute left the court no discretion in the matter.
Posted by Marcia Oddi on February 2, 2012 06:27 PM
Posted to Ind. Sup.Ct. Decisions
Courts - "9th Circuit won't release CA gay marriage trial videos"
New AP story in the Seattle Times, reported by Lisa Leff, subheaded "A federal appeals court refused Thursday to unseal video recordings of a landmark trial on the constitutionality of California's same-sex marriage ban." A quote:
[T]he 9th U.S. Circuit Court of Appeals in San Francisco ruled the public doesn't have the right to see the footage.ILB: As reported by the ILB earlier, because the video has been tied up in court, the California district court trial transcripts have served as the text of a Broadway play. So no need for resort to puppet videos, as in Ohio.The 2010 trial lasted 13 days and was the first in a federal court to examine if prohibiting gay couples from marrying violates their constitutional rights.
It was open to the public and received widespread media coverage, so the recordings would not have revealed any new evidence or testimony.
[More] Lyle Deniston of SCOTUSblog has analysis ansd a link to the opinion here.
Posted by Marcia Oddi on February 2, 2012 01:56 PM
Posted to Courts in general
Ind. Decisions - More on 7th Circuit rules on: Superfund used to justify $28,000 bill to fight fire at couple's home
In addition to this ILB entry cited in the earlier post today, see this ABC NEWS report from Feb. 4, 2010, titled "Fire Departments Charge for Service, Asking Accident Victims to Pay Up."
Posted by Marcia Oddi on February 2, 2012 01:42 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - 7th Circuit decides 2 additional Indiana cases today
In Brown v. Bowman (ND Ind., Springmann), an 18-page opinion, Judge Cudahy writes:
This case involves the scope of the Rooker-Feldman doctrine and whether the district court properly applied that doctrine to appellant’s 42 U.S.C. § 1983 claims. In April 2007, appellant Bryan Brown applied for admission to the Indiana Bar. As part of his application process, the Indiana Board of Law Examiners (BLE) requested that Brown attend hearings to investigate his application and also required Brown to be evaluated by mental health professionals. The BLE ultimately denied Brown’s admission application and, after exhausting his appeals to the Indiana Supreme Court and the United States Supreme Court, Brown brought suit in the district court. His complaint, lodged against various state actors involved in his application process, alleged that the evaluation of his application focused on his religious beliefs (ostensibly Roman Catholic) and violated his constitutional rights. The district court dismissed his complaint without prejudice for lack of subject matter jurisdiction under Rooker-Feldman. The district court also found that the defendants were immune from civil suit. On appeal, Brown raises two issues: (1) whether the district court erred in dismissing his federal suit under Rooker-Feldman; and (2) whether the district court erred in finding that defendants were entitled to immunity. For the reasons that follow, we affirm the district court’s finding that Rooker-Feldman applies and decline to assess whether the district court was correct in ruling in the alternative that the defendants were immune from suit.
In US v. Zahursky (ND Ind., Lozano), a 6-page opinion, Judge Wood writes:
This is Erik Zahursky’s second appeal to this court. In 2007, a jury convicted Zahursky of attempting to coerce or entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b)—an offense for which Zahursky received a 262-month prison term. Zahursky appealed, challenging both his conviction and a sentencing enhancement based on § 2G1.3(b)(2)(B) of the sentencing guidelines. We affirmed the conviction, but we vacated Zahursky’s sentence and remanded, ruling that § 2G1.3(b)(2)(B) was inapplicable. On remand, the district court, relying in part on § 2G1.3(d) of the guidelines, sentenced Zahursky to 210 months in prison. Zahursky appeals again, arguing that our earlier ruling precludes not only the section (b) enhancement, but also the section (d) enhancement. Although § 2G1.3(d) may not apply, we find that Zahursky has forfeited this argument and therefore affirm his sentence.
Posted by Marcia Oddi on February 2, 2012 11:59 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Gov't. - Both sides rest in Charlie White case
Prosecution rests, #CharlieWhite's attorney is not going to present evidence. We are done with evidence
— Carrie Ritchie (@CarrieRitchie) February 2, 2012
Posted by Marcia Oddi on February 2, 2012 11:54 AM
Posted to Indiana Government
Ind. Decisions - 7th Circuit rules on: Superfund used to justify $28,000 bill to fight fire at couple's home
On March 23, 2010, the ILB had a long entry headed "Environment - More on: Superfund used to justify $28,000 bill to fight fire at couple's home," which is well worth rereading.
Today, in the case of EMERGENCY SERVICES BILLING CORPORATION, INC. (ESBC), individually (and as agent for) agent of Westville Volunteer Fire Department v. Allstate (ND Ind., http://indianalawblog.com/archives/2012/02/ind_govt_both_s.html), a 21-page opinion, Judge Flaum writes:
This appeal concerns the interpretation of the phrase “consumer product in consumer use” in the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). 42 U.S.C. §§ 9601 et seq. Plaintiff-appellant, Emergency Services Billing Corporation (“ESBC”), is the billing agent for the Volunteer Fire Department of Westville (“Fire Department”), a town in central Indiana. ESBC brought this action against individuals who were involved in motor vehicle accidents and the insurance companies that represent those individuals. Under CERCLA, the owner of a “facility” from which hazardous substances have been released is responsible for the response costs that result from the release. ESBC believes that personallyowned motor vehicles fall within the definition of “facilities” under CERCLA. Thus, ESBC charged the individual defendants, and therefore the insurance company defendants, with the response costs relating to their respective car accidents. Defendants argue that personal motor vehicles fall under CERCLA’s “consumer product in consumer use” exception to the definition of “facilities,” and they have refused to pay ESBC for the response costs. ESBC has asked for declaratory relief in the form of a confirmation of the defendants’ liability under CERCLA.The district court held that motor vehicles for personal use do, in fact, fall under the “consumer product in consumer use” exception to CERCLA’s definition of facility, and that defendants cannot be charged with the Fire Department’s costs for responding to the car accidents. ESBC appeals, challenging the district court’s interpretation of CERCLA. For the following reasons, we affirm the district court’s dismissal of ESBC’s suit. * * *
The purpose of the exclusion, therefore, is clearly to prevent consumers— all consumers—from being held liable under CERCLA, despite ESBC’s claims that this broad remedial scheme must cover car accidents. ESBC offers no support from CERCLA’s legislative history that a category as large as personal motor vehicles should be excluded from the definition of consumer products, nor can we think of a reason for this exclusion.
Posted by Marcia Oddi on February 2, 2012 11:31 AM
Posted to Environment | Ind. (7th Cir.) Decisions | Indiana Law
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (3):
Jeffrey Allen Rowe v. William K. Wilson (NFP)
Alex R. Voils, Jr., Vicki L. Voils v. Everhome Mortgage Co. (NFP)
NFP criminal opinions today (1):
Eric C. Roach v. State of Indiana (NFP)
Posted by Marcia Oddi on February 2, 2012 10:32 AM
Posted to Ind. App.Ct. Decisions
Law - "3 Chicago law schools sued by graduates"
Ameet Sachdev of the Chicago Tribune reports this morning:
Three Chicago law schools were sued Wednesday for allegedly deceiving students by inflating post-graduate employment information.See the whole story here.The allegations were made in three separate lawsuits brought by recent graduates of John Marshall Law School, IIT Chicago-Kent College of Law and DePaul University College of Law. The allegations in each complaint are similar.
The alumni accuse the law schools of falsely advertising for several years since 2000 that 90 percent or more of its students were employed nine months after graduation. They allege that the numbers included students with any kind of job, even ones that had nothing to do with the legal industry.
The plaintiffs also allege the schools inflated the average salaries paid graduates because they were based on a small, deliberately selected sample of high-earners.
The graduates said they relied on the data in deciding where to attend law school. Contrary to the school's rosy representations of the job market, the students graduated with limited job prospects and mounting debt.
Posted by Marcia Oddi on February 2, 2012 10:20 AM
Posted to General Law Related
Ind. Courts - Yet more on: A new pilot project allowing web cameras in court rooms to be announced
Updating this ILB entry from Jan. 29th, today the Fort Wayne Journal Gazette has an editorial on the Supreme Court's most recent pilot for trial courts. Some quotes:
The Indiana Supreme Court is trying again. This time it has arranged for an 18-month pilot project allowing a northwest Indiana newspaper to show proceedings via webcast in three Lake County courtrooms.ILB: Meanwhile, as the ILB noted in the Jan. 29th post, lacking cameras, other alternatives do exist, such as using puppets to reenact courtroom scenes. More on that from NPR's Morning Edition today, which this morning summarizes its 2 min 40 sec audio story:Even this pilot is arguably too restrictive. Webcasts will be delayed, not live, and the judges will have wide discretion to order a proceeding or portions of a proceeding not to be shown to the public. Parties involved can ask that proceedings not be subject to webcast, though, unlike the previous pilot, they will not have veto power. The judges will “determine in open hearing whether the interests of justice and public education warrant webcasting or not” under the state Supreme Court’s order that sets guidelines for the pilot project. * * *
While four of the court’s five justices approve of the Lake County pilot, Justice Brent Dickson, sadly, disapproves, just as he did before the earlier experiment. In 2006, Dickson wrote: “The possibility of being televised to neighbors and others can be embarrassing or frightening to some, and alluring and captivating to others. The public broadcast of personal or unpleasant information is often a risk to be avoided at all costs. Others are fascinated or energized by the possibility of appearing on television, and will engage in a variety of antics to get camera attention.”
Dickson seems to downplay the fact that courts are open to the public, and Hoosiers have every right to witness what happens in open court. As for witnesses or lawyers playing to the camera, judges are perfectly capable of making sure participants follow strict courtroom protocol.
With the General Assembly on the Web and numerous City Council meetings on cable TV, Hoosiers are able to witness the activities of their legislative branch of government. It’s time Indiana take a step – and this pilot is nothing more than a baby step – toward opening the judicial branch to greater public view.
A high-profile corruption trial in Cleveland is being re-enacted on a local news station using puppets. Cameras are barred from the courtroom so the station has come up with a unique way to show what's been going on in the courtroom. A former county commissioner and seven others face prison terms for a pay-to-play scheme.A thought. In a number of stories I've read over the years, various judges and justices have argued against cameras in courtrooms, saying that the media might broadcast snippets of the testimony out-of-context. So in Ohio reporters are writing down the testimony and it is performed on TV by puppets. Is this a better option?
Posted by Marcia Oddi on February 2, 2012 09:52 AM
Posted to Indiana Courts
Ind.Law - Check out new blog, the Indiana Property Tax Reporter
The Indiana Property Tax Reporter, a new blog started a few days ago by Carol S. Comer, provides valuable specialized tax and local government information and also could become a very useful long term resource.
Judge Comer, a Senior ALJ with the Tax Board, went through the state ethics commission to ensure the blog wasn't a conflict. She writes:
I was putting all this research together as part of what I was doing as an ALJ - and it was all public information - and I always thought "other people should have access to this!" Hence the blog.The blog is in its infancy, refinements are forthcoming. But for now, take a look at the new blog here. As I told Judge Comer, I've seen a variety of Indiana law blog ideas come and go over the years, but this one has identified a real need and is in very capable hands.I envision publishing Board decisions and Tax Court decisions on property tax matters, keeping readers apprised of legislative endeavors, publishing the status of Tax Court proceedings as the appeals work their way through the process, publishing hearing dates, linking to assessment information through the DLGF and searching news sources for local property tax issues.
Posted by Marcia Oddi on February 2, 2012 09:38 AM
Posted to Indiana Law
Vacancy on Supreme Court 2012 - More stories today from the print press
Supplementing this ILB entry from Jan. 28th, which linked to local stories on several of the candidates, Ron Wilkins has a story today in the Lafayette Journal Courier on applicant Rebecca Trent of West Lafayette, a partner in the law office of Robert Little and a general practitioner.
Posted by Marcia Oddi on February 2, 2012 09:27 AM
Posted to Vacancy on Supreme Court 2012
Ind. Gov't. - Day 2 of Charlie White trial wrap-up; today may mark end of prosecutor's presentation
Updating this ILB entry from Feb. 1, Carrie Ritchie's story today in the Indianapolis Star is headed: "Cellphone records to be called in Indiana Secretary of State Charlie White's trial." The story begins:
NOBLESVILLE, Ind. -- A Sprint representative could shed light today on where Indiana Secretary of State Charlie White lived while he campaigned for office in late 2009 and 2010.Prosecutors say White's cellphone records will show he lived in a townhouse with his then-fiancee -- instead of in a home with his ex-wife, as he has claimed.
Evidence on where White lived during that time could convince a Hamilton Superior Court jury as to his guilt or innocence on seven felony charges, including voter fraud and theft. The trial resumes at 9 a.m. today.
Prosecutors allege that White broke the law when he voted in the May 2010 primary because he was living in the townhouse instead of his ex-wife's house, where he was registered to vote.
Posted by Marcia Oddi on February 2, 2012 09:20 AM
Posted to Indiana Government
Wednesday, February 01, 2012
Ind. Law - Video archives of 2012 Senate floor action?
You can watch the Senate floor action as it happens via the Senate's live streaming. You can watch the Senate archives of last year (2011) and several earlier years.
But what about yesterday? It appears you are out of luck!
Not so with the House, which archives each 2012 session day.
Why am I not finding a Senate video archive for 2012? Is this an oversight?
Posted by Marcia Oddi on February 1, 2012 04:10 PM
Posted to Indiana Government
Environment - Fenced hunting dead; how about bill allowing silencers for hunters?
Sen. Long says canned hunting bill is dead
— Niki Kelly (@nkellyatJG) February 1, 2012
Fenced hunting is dead for this session, says #Indiana Senate Pres Pro Tem David Long. #INlegis
— lesley weidenbener (@LWeidenbener) February 1, 2012
Posted by Marcia Oddi on February 1, 2012 03:19 PM
Posted to Environment
Vacancy on the Supreme Court 2012 - More on: "A first look at the candidates' submissions"
This ILB entry from yesterday, Jan. 31st, had a photo of the Supreme Court library table with the 15 applications, awaiting review.
Here now, via the Court's photo bank, are six photos of the "press and public" viewing the applications during the scheduled hour-long opportunity.
Prof. Joel Schumm is seated at the head of the table in the photos. To his right, in the jacket and tie, is Dan Carden from the NWI Times. To Schumm's left, in sweater, is Joby Jerrells, a finalist for the Tax Court spot last year.
Posted by Marcia Oddi on February 1, 2012 02:54 PM
Posted to Vacancy on Supreme Court 2012
Environment - "Report proposes dividing Great Lakes, Mississippi"
A long AP story by John Flesher, AP Environmental Writer, dated January 31, 2012, begins:
TRAVERSE CITY, Mich. (AP) — Groups representing states and cities in the Great Lakes region on Tuesday proposed spending up to $9.5 billion on a massive engineering project to separate the lakes from the Mississippi River watershed in the Chicago area, describing it as the only sure way to protect both aquatic systems from invasions by destructive species such as Asian carp.The report, from the Great Lakes Commission, "an interstate compact agency that promotes the orderly, integrated and comprehensive development, use and conservation of the water and related natural resources of the Great Lakes basin and St. Lawrence River," is available here.The organizations issued a report suggesting three alternatives for severing an artificial link between the two drainage basins that was constructed more than a century ago. Scientists say it has already provided a pathway for exotic species and is the likeliest route through which menacing carp could reach the lakes, where they could destabilize food webs and threaten a valuable fishing industry.
“We simply can’t afford to risk that,” said Tim Eder, executive director of the Great Lakes Commission, which sponsored the study with the Great Lakes and St. Lawrence Cities Initiative. “The Great Lakes have suffered immensely because of invasive species. We have to put a stop to this.”
Posted by Marcia Oddi on February 1, 2012 02:04 PM
Posted to Environment
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
NFP criminal opinions today (1):
Cleverson J.R. Punturi v. State of Indiana (NFP)
Posted by Marcia Oddi on February 1, 2012 01:01 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Both Supreme Court and COA rule against Princeton attorney Wallace this week
Updating this ILB entry from yesterday, Janice Barniak reports today in the Princeton Daily Clarion in a story that begins:
PRINCETON -Indiana's Supreme Court Disciplinary Commission has recommended Princeton attorney William R. Wallace III be suspended from practicing law in Indiana, and the Indiana Court of Appeals has decided a pending felony voyeurism charge against him should stand.The Court of Appeals of Indiana Tuesday upheld Gibson Superior Court Judge Earl Penrod's ruling that the voyeurism charge, one of several filed against Wallace in a 2010 case, should not be dismissed.
In October 2011, Wallace agreed in a plea deal that he would plead guilty to the voyeurism charge if the higher court upheld the local court's ruling.
In that deal, Wallace was sentenced to 90 days of home detention and 458 days of probation for felony convictions of obstruction of justice and possession of child porn. Lesser charges of false informing and patronizing a prostitute were dismissed.
Under terms of the plea agreement, the sentence for the voyeurism charge will run concurrently with the other two convictions.
Wallace's appeal to the higher court was pending when he agreed to the plea deal. His appeal argued that the voyeurism should be dismissed.
He was indicted in the supper of 2010 by a grand jury on charges of false informing, obstruction of justice, patronizing a prostitute and possession of child pornography. In November 2010, Special Prosecutor Jonathan Parkhurst filed the charge of voyeurism.
Prosecutor Rob Krieg asked that a special prosecutor investigate the case because Wallace was a candidate for Gibson County Prosecutor at the time a former client made a complaint in the spring of 2010.
Posted by Marcia Oddi on February 1, 2012 12:55 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - More on 7th Circuit ruling in Amber Parker case
Updating this ILB entry from yesterday on the 7th Circuit's decision to allow plaintiff's suit to proceed in the case of Amber Parker v. Franklin Comm. Schools, the Indianapolis Star has a story today by reporter Nat Newell, headed "U.S. appeals court overturns dismissal of gender-discrimination suit on Indiana high school sports." Some quotes:
The Title IX lawsuit over the scheduling of high school boys and girls basketball games will go forward after the U.S. Court of Appeals for the Seventh Circuit overturned a lower court's dismissal of the case. * * *Tom Wheeler, the attorney for the schools, said the ruling was not unanticipated and no decision had been made on whether to appeal it. If there is no appeal, Sniderman estimated it would take 12 to 18 months for the case to reach trial.
"With respect to Franklin (County), we know there's a disparity," Wheeler said. "We said to the court, while there is a disparity, it does not impact their athletic opportunities. We're (also) resolving (the disparity)."
A summary judgment from the Indianapolis-based U.S. District Court for the Southern District of Indiana dismissed the case in October, saying the damage done to girls basketball players wasn't substantial enough.
According to the appeals court ruling, Franklin County's boys team played nearly 95 percent of its games in "primetime" -- an evening game held prior to a day without school -- while the girls played less than 53 percent of theirs. Franklin County athletic director Beth Foster testified that she attempted to increase the number of girls games played in primetime but the other athletic directors refused.
Posted by Marcia Oddi on February 1, 2012 12:44 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Law - "Lawmakers should seriously consider whether they should put themselves in the position of settling disputes involving a very limited number of Hoosiers by passing statewide laws that affect everyone"
So opined the Fort Wayne Journal Gazette today in an editorial headed "Lawmakers as arbiters." Some quotes:
The Indiana General Assembly is advancing two bills directly related to local issues that demonstrate the power of the legislature to correct bad policies but also put lawmakers in the awkward and questionable position of helping specific people win disputes.ILB: I recall amendments to the budget bill specifying the location of some curb-cuts on a street in South Bend ...In both cases, lawmakers are headed toward establishing sound public policy, but it is regrettable those policies could not have been corrected without new state laws. * * *
Both Purdue and Indiana universities have archaic, discriminatory policies that require top administrators to retire after they turn 65. The policies seem arbitrary: The universities’ boards of trustees can grant exceptions based on discretionary, subjective factors, and the trustees themselves are not subject to their own 65-and-out rules. * * *
Striking the mandatory retirement policy is surely the right step, and it’s unfortunate the boards of Purdue and IU don’t take the action themselves.
The other bill requires lawmakers to reverse their own bad judgment.
Two local Chevrolet dealerships are involved in a legal dispute because one, Kelley Chevrolet, plans to move, apparently violating a state law that requires dealerships of the same model to be at least six miles apart. Such a decision should be left solely to the auto manufacturer and its dealers, and lawmakers should never have established this six-mile law to begin with.
As originally proposed, the bill would have gone so far to help one dealership as to make the law retroactive, making Kelley the automatic winner of the lawsuit that DeHaven’s Summit City Chevrolet filed. Now, the bill would take effect July 1, though if the lawsuit is not resolved by then – a very real possibility – the result would be the same, with the law favoring Kelley.
Should public universities require top administrators to step down solely because of their age? Of course not.
Should state law determine where auto dealerships can and cannot locate? No.
But lawmakers should also seriously consider whether they should put themselves in the position of settling disputes involving a very limited number of Hoosiers by passing statewide laws that affect everyone.
See also this ILB entry from Jan. 27th.
Posted by Marcia Oddi on February 1, 2012 10:15 AM
Posted to Indiana Law
Ind. Gov't. - "Prosecutors in Charlie White's trial say documents prove voter fraud"
Here in the Indianapolis Star this morning is reporter Carrie Ritchie's wrap-up of the first day of Secretary of State Charlie White's voter fraud trial.
For constant updates throughout each day of the trial, anticipated to last two weeks, follow Ms. Ritchie's twitter feed @CarrieRitchie.
Posted by Marcia Oddi on February 1, 2012 10:06 AM
Posted to Indiana Government
Ind. Law - "Senate passes bill on teaching creationism: If measure becomes law, opponents wonder if suit versus state will follow"
Long, comprehensive story today in the Indianapolis Star, reported by Scott Eliiot (and contributors Alex Campbell and Tim Evans). The bill, SB 89. A few quotes:
Senate Bill 89, authored by Sen. Dennis Kruse, R-Auburn, would allow schools to teach religion-based views on the origin of creation -- be they Muslim, Jewish, Scientology or Christian -- alongside the theory of evolution in public school science classes.Here is my favorite part:Schools, however, would not be required to do so, and an Indiana Department of Education spokesman said the state would not develop any such curriculum or guidelines for teaching creationism.
The Senate passed the bill 28-22. It would still need to be passed by the House and signed by Gov. Mitch Daniels before it became law.
"I believe in creation," Kruse said, "and I believe it deserves to be taught in our public schools."
Sen. Karen Tallian, D-Portage, had a decidedly different take: "I can't believe we are even considering this."
The question now -- if it becomes law -- is whether schools will consider it. And if they do, will that violate the Constitution?
Creation science was specifically ruled unconstitutional by the U.S. Supreme Court in a 1987 case in which the court voided a Louisiana law that required creation science to be taught alongside evolution in science class. The court found the law violated the establishment clause of the U.S. Constitution because it was designed to advance religion.Kruse said he is aware of the precedent but isn't sure it would survive today.
"This is a different Supreme Court," he said. "This Supreme Court could rule differently." * * *
Technically, a school district could teach creationism now -- and some do.
"As far as I know," said Mount Vernon Community School Corporation Superintendent William Riggs, "we've always been allowed to do that."
Riggs said Mount Vernon High School's biology class already teaches creationism alongside evolution. "We've been doing this for years."
Riggs said the school teaches them as "two theories of the origins of life" and said that in literature classes students often learn about the Bible and the Quran. "The idea is to get kids to think."
But districts such as Mount Vernon potentially open themselves up to costly lawsuits. Kruse's bill gives those districts and any other that choose to teach creationism some legal cover -- and likely would draw the state into their defense. * * *
Kruse called evolution a "Johnny come lately" idea that emerged well after many religious views about the origins of life were formed.
"Many people still believe in creation," he said. "Our schools are teaching what many people believe is false."
Kruse thinks his bill is fair to everyone because it was amended to allow the creation theories of several religions, not just Christianity. But the inclusion of other religions was the reason Sen. Brent Steele, R-Bedford, said he voted against the measure.
Nine other Republicans voted against the bill, and one Democrat, Lindel Hume of Princeton, voted for it.
Posted by Marcia Oddi on February 1, 2012 09:16 AM
Posted to Indiana Law
Ind. Law - "Trafficking in hyperbole"
The editorial section of the Fort Wayne Journal Gazette today has this item on newly enacted SEA 4, human trafficking:
From the back-patting and high-fives, it would seem the Indiana General Assembly rescued the state from the grasp of moral depravity by rushing a human-trafficking law to Gov. Mitch Daniels’ desk before Sunday’s Super Bowl.So, were the thousands of football fans descending on Indianapolis likely to seek out young women and children for sexual gratification? Was Indiana’s law strengthened just in the nick of time?
Not so much, it turns out.
In spite of claims that the sporting event draws a criminal element eager to meet demand for illegal sexual activity, a review of last year’s Super Bowl in Dallas found a grand total of one – yes, one – arrest. “This is a far cry from the ‘thousands’ of victims that the hysterical Texas Attorney General’s office … assumed would be illegally trafficked in the Dallas area for the Super Bowl,” observed a blogger after the 2011 event.
Turns out that the hype over increased human trafficking in Texas last year was almost identical to the hype behind the Indiana legislation this year. Similar cries also are being raised over the Summer Olympics in London.
This is not to say a stronger human trafficking law isn’t a good thing. But shouldn’t some lawmaker have asked why the Super Bowl, which will draw about 68,000 fans, poses a more serious trafficking threat than the Indianapolis 500, which draws more than 250,000 fans every May?
Posted by Marcia Oddi on February 1, 2012 09:10 AM
Posted to Indiana Law
Ind. Law - "How To Stay Out of Jail on Super Bowl Sunday"
The entertaining story by Aaron Kase at Lawyers.com features advice from Indianapolis attorney Kathleen Sweeney, "a veteran defender of sporting event-related mishaps, [who] lays out some of the ways you might find yourself in pigskin-derived legal trouble."
Posted by Marcia Oddi on February 1, 2012 08:47 AM
Posted to Indiana Law
Tuesday, January 31, 2012
Ind. Decisons - 7th Circuit decides another Indiana case today
And it is the Amber Parker case! The girls prevail to fight on another day!
In Amber Parker v. Franklin Comm. Schools (SD Ind., Lawrence), a 37-page opinion, Judge Tinder writes:
A packed gymnasium, cheerleaders rallying the fans, the crowd on their feet supporting their team, and the pep band playing the school song: these are all things you might expect to see at an Indiana high school basketball game on a Friday night. The crowd becomes part of the game; they provide motivation, support, and encouragement to the players. After all, what would a spectator sport be without the spectators? Unfortunately, this is a question the Franklin County High School girls’ basketball teams must answer every season because half their games have been relegated to non-primetime nights (generally Monday through Thursday) to give preference to the boys’ Friday and Saturday night games. Non-primetime games result in a loss of audience, conflict with homework, and foster feelings of inferiority. The question we’re asked to decide in this appeal is whether such discriminatory scheduling practices are actionable under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). We think the plaintiffs have presented a genuine question of fact that such practices violate the statute, and therefore we vacate the district court’s entry of summary judgment in favor of the defendants on this claim. We further vacate the district court’s dismissal of the plaintiffs’ equal protection claim, brought pursuant to 42 U.S.C. § 1983, on the basis of sovereign immunity. The defendants are “persons” within the meaning of § 1983, and thus, subject to suit under that statute.For background see this May 27, 2011 ILB entry.
Posted by Marcia Oddi on January 31, 2012 03:53 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Law - Evolution is a “Johnny come lately” theory
In his Star blog, Scott Elliot of the Indianapolis Star quotes Indiana State Sen. Dennis Kruse, the author of creation "science" bill SB 89, as believing that the SCOTUS could rule differently this time.
Posted by Marcia Oddi on January 31, 2012 03:40 PM
Posted to Indiana Law
Ind. Decisions - 7th Circuit decides one Indiana case today
In Atkins v. Zenk (ND Ind., Van Bokkelen), a 15-page opinion, The Honorable Tanya Walton Pratt, District Judge for the USDC for the SD Indiana, is sitting by designation, writes:
Dale J. Atkins was convicted by a jury of attempted murder, criminal confinement, domestic battery, and invasion of privacy and sentenced to 51 years in prison. Atkins filed a post-conviction relief petition in Indiana state court, but obtained no relief. He then filed a federal habeas corpus petition under 28 U.S.C. § 2254, claiming that he was deprived of his Sixth Amendment right to effective assistance of trial counsel. The district court denied the petition, but granted a certificate of appealability. Atkins appealed, and we affirm.
Posted by Marcia Oddi on January 31, 2012 02:11 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)
For publication opinions today (4):
In William R. Wallace v. State of Indiana , an 11-page opinion, Judge Bradford writes:
Appellant-Defendant William R. Wallace brings this interlocutory appeal, claiming that the trial court abused its discretion in denying his motion to dismiss. Wallace argues that the dismissal of the Class D felony Voyeurism charge was warranted because the facts, as alleged, cannot constitute voyeurism. Concluding that the alleged facts, if proven to be true, could support a voyeurism conviction, we affirm the trial court’s order denying Wallace’s motion to dismiss. * * *ILB: Re the above, see also this ILB entry from Jan. 30 re the Supreme Court disciplinary action, In the Matter of William R. WALLACE.In the instant matter, the alleged facts, if proven to be true at trial, can constitute voyeurism because Wallace recorded A.J. disrobing and engaging in a sexual encounter without her consent in a clandestine, surreptitious, prying, or secretive nature. * * *
[BARNES, Judge, concurring] * * * However, the voyeurism statute was drawn primarily to punish persons who peep into bathrooms, locker rooms, dressing rooms, and the like. * * *
The camera that Wallace set up, however, did peep. Although a camera by itself cannot commit a crime, the recording it made permitted Wallace to repeatedly view A.J. naked and engaging in sex with him. A.J. did not consent to being seen naked repeatedly by Wallace.
Nathan Anderson v. State of Indiana - "In sum, we affirm Anderson‟s conviction and sentence for murder. We reverse his convictions for burglary and abuse of a corpse and vacate those sentences. As noted earlier, the State may retry Anderson for those offenses if it so chooses."
Steven Nowling v. State of Indiana - "Accordingly, we conclude that, if Nowling’s continuing objection applied to Bowles’s testimony regarding Exhibit 4, Nowling waived his ability to challenge the admission of Exhibit 4 on appeal by stating that he had no objection.
"Based on the foregoing, we grant Nowling’s petition for rehearing for the limited purpose of clarifying our analysis and affirm our original opinion."
Christopher Stark v. State of Indiana - "In this interlocutory appeal, Christopher Stark appeals the denial of his motion to suppress a handgun. We affirm."
NFP civil opinions today (3):
Susan Kohl v. Duane Kohl (NFP)
Daddys'O Pub, LLC v. Purkey Enterprises, Inc. (NFP)
NFP criminal opinions today (7):
Ronald D. Tiede v. State of Indiana (NFP)
Jason Schapker v. State of Indiana (NFP)
Gary Hollin v. State of Indiana (NFP)
Nick Khanthamany v. State of Indiana (NFP)
James Eubanks, Jr. v. State of Indiana (NFP)
Samantha Bradley v. State of Indiana (NFP)
Brien Clayton v. State of Indiana (NFP)
Posted by Marcia Oddi on January 31, 2012 01:43 PM
Posted to Ind. App.Ct. Decisions
Ind. Law - "A little scary" writes reader
A reader has called the ILB's attention to HB 1169, which passed House third reading yesterday with a vote of 72-22. Here is the complete text:
SECTION 1. IC 20-33-8-15, AS ADDED BY P.L.1-2005,Here is the rollcall.
SECTION 17, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 15. In addition to the grounds specified in section
14 of this chapter, a student may be suspended or expelled for engaging
inunlawfulactivity on or off school grounds if:
(1) the
unlawfulactivity may reasonably be considered to be an
interference with school purposes or an educational function; or
(2) the student's removal is necessary to restore order or protect
persons on school property;
including anunlawfulactivity during weekends, holidays, other school
breaks, and the summer period when a student may not be attending
classes or other school functions.
Posted by Marcia Oddi on January 31, 2012 01:21 PM
Posted to Indiana Law
Ind. Decisions - Supreme Court decides 2 today
In Henry C. Bennett and Schupan & Sons, Inc. v. John Richmond and Jennifer Richmond, a 15-page, 5-0 opinion, Justice Sullivan writes:
The sole issue in this appeal is whether the trial court abused its discretion when it permitted a psychologist to testify on behalf of a plaintiff in a personal injury case as to the cause of a brain injury.[1] Finding the trial court did not abuse its discretion in this regard, we affirm. * * *In Reginald N. Person, Jr. v. Carol A. Shipley, a 9-page, 5-0 opinion, Justice Sullivan writes:Our review of the record, read in conjunction with the requirements of Rule 702, leads us to conclude that the trial court did not abuse its discretion in admitting Dr. McCabe’s causation testimony. The trial court extensively and thoughtfully considered the admissibility of Dr. McCabe’s testimony on three separate occasions during this litigation. Mindful that the trial court is afforded broad discretion in these matters, we decline to find any abuse of it. The judgment of the trial court is affirmed.
________
[1] This case involves similar issues to those we address in another case decided today, Person v. Shipley, No. 20S03-1110-CT-609, ___ N.E.2d ___ (Ind. 2012).
As we reiterate today in Bennett, the trial court is considered the gatekeeper for the admissibility of expert opinion evidence under Rule 702. * * *We conclude that the trial court did not abuse its discretion in finding that Dr. Turner’s opinions were based on reliable scientific principles that could be applied to the facts at issue. And, because we conclude that Dr. Turner’s testimony was properly admitted, we reject Shipley’s argument that Dr. Lazoff’s causation opinion should have been excluded by the trial court because it was based in part on Dr. Turner’s calculation of momentum transfer.
Conclusion. Again, mindful that the trial court judge is afforded broad discretion in these matters, we decline to find any abuse of it. The judgment of the trial court is affirmed.
Posted by Marcia Oddi on January 31, 2012 12:19 PM
Posted to Ind. Sup.Ct. Decisions
Vacancy on the Supreme Court 2012 - Follow all the entries
Don't forget, you can follow all the entries by using the category link, "Vacancy on the Supreme Court 2012" in the right hand column.
Here is the January 27th entry identifying the applicants and taking a first look at gender and geographic diversity, judicial background, etc.
Posted by Marcia Oddi on January 31, 2012 11:36 AM
Posted to Vacancy on Supreme Court 2012
Vacancy on the Supreme Court 2012 - A first look at the candidates' submissions
Again this year, Ind. University-Robert McKinney School of Law professor Joel Schumm has prepared for the ILB an introductory review of the materials submitted by the candidates for the upcoming vacancy on the Indiana Supreme Court.
Visitors to the Supreme Court library on Monday afternoon were able to view the fifteen complete applications for the vacancy on the Indiana Supreme Court. Although the 34 applications in 2010 crowded the tables in the library, the applications this round required a single table. [see photo above] Media interest was diminished as well; a single reporter viewed an application from his region of the state.
I spent my hour focusing on information that will not be included when the application forms are posted to the Court’s website later this week: law school transcripts and letters of recommendation. Skimming the writing samples revealed no major surprises. Needless to say, some applicants have writing samples that look much more like Indiana Supreme Court opinions than others. The natural advantage here goes to Judge Bradford, who has written hundreds of Court of Appeals’ opinions, and high volume and experienced appellate practitioners, like Mr. Mulvaney and Ms. McMath.
Law school grades
As detailed in this post about the semifinalists for the 2010 vacancy, the Judicial Nominating Commission is instructed by statute to consider the applicants’ “[l]egal education, including law schools attended and education after law school, and any academic honors and awards achieved.” IC 33-27-3-2(a)(1). Question IV.B. on the application form directed candidates:“List below all law schools and post-J.D. programs attended. Attach a certified transcript from each to the original application and attach copies of each transcript to each application copy.” In addition, the form asked for "Degree and Class Rank." Although the forms will soon be posted to the Court’s website, the transcripts will not. The following table, however, is sorted by applicant GPA and includes class rank information if provided:
| O’Bryan | IU-Maurer | 3.56 | 1st in class |
| Reeder | IU-McKinney | 3.28 | Top 11% |
| Seigel | IU-McKinney | 3.14 | --- |
| Trent | IU-McKinney | 3.11 | Top 1/4 |
| Massa | IU-McKinney | 3.03 | 123/211 |
| Pagano | NYLS | 3.00 | 89/280 |
| Moberly | IU-McKinney | 2.93 | cum laude |
| McMath | IU-Mauer | 2.917 | --- |
| Mulvaney | IU-McKinney | 2.89 | 81/207 |
| Shively | IU-McKinney | 2.79 | 166 |
| Bradford | IU-McKinney | 2.74 | 104/185 |
| Altice | UMKC | 2.731 | --- |
| Ayers | IU-McKinney | 2.69 | --- |
| Granger | IU-McKinney | 2.657 | --- |
| Schultz | Yale | non-traditional grades H, P, CR |
--- |
With two-thirds of the pool from Indiana University Robert H. McKinney School of Law, it seems quite possible the school could soon gain a three-Justice majority on Indiana Supreme Court. Justice Dickson (‘68) and Justice David (’82) are IU-McKinney alumni. Justice Sullivan graduated from Indiana-Maurer and Justice Rucker from Valparaiso.
Age
The average age of the applicant pool for the 2010 vacancy was 53, coincidentally the age of then-Judge Steve David, who was ultimately appointed to fill the vacancy. This time around the average is again 53, with a range of 41 to 64.
| Pagano | 41 |
| Granger | 42 |
| Trent | 42 |
| Schultz | 46 |
| Massa | 50 |
| McMath | 50 |
| Altice | 51 |
| Bradford | 51 |
| Reeder | 54 |
| Seigel | 57 |
| Shively | 57 |
| Moberly | 58 |
| Mulvaney | 62 |
| Ayers | 64 |
| O'Bryan | 64 |
Article 7, Section 11 of the Indiana Constitution provides that justices “shall retire at the age specified by statute in effect at the commencement of his current term,” which remains 75, although the mandatory retirement age for trial court judges was removed last year.
Letters of Recommendation
The Commission collects and distributes letters of recommendation to all its members. Letters may continue to arrive later in the application process. For example, then-Judge David received several letters after he advanced to the semifinal round in 2010, including two letters from unsuccessful applicants for the position. The significance of letters is debatable. For example, the 2010 applicant with the most letters, many from prominent political figures, advanced to the second round but was not a finalist. This year the applicant with the most letters appears to be Judge Bradford, whose letters came from an impressive array of prominent Republican (and even some Democratic) lawyers and public officials including (apologies to anyone inadvertently omitted): Susan Brooks, Sen. David Long, Lee McNeely, Scott Newman, Bart Peterson, Melissa Proffitt Reese, Peter Rusthoven, John Trimble, and James Voyles—as well as two of his colleagues on the Indiana Court of Appeals: Judge James Kirsch and Judge Melissa May.
Perhaps most interesting was the overlap in some of the letters. Some trial court judges wrote at least three separate letters for different applicants. It is understandable that a judge or lawyer would agree to write letters for well-qualified applicants when asked, and the order in which one is asked may not track a recommender’s ordering of the very best among a highly qualified pool. Peter Rusthoven’s single letter recommending Judge Bradford, Mr. Massa, and Mr. Schultz (in alphabetical order) provided glowing individual assessments of each before concluding the trio “would be an exceptionally well-qualified panel of three to submit to the Governor for his final appointment of the next Justice of our Supreme Court.”
Posted by Marcia Oddi on January 31, 2012 11:27 AM
Posted to Vacancy on Supreme Court 2012
Ind. Courts - "7th Circuit E-Discovery Pilot Program Could Have Wide-Ranging Impact"
Read the long article from the Legal Intelligencer here. (Thanks to Appellate Daily)
Posted by Marcia Oddi on January 31, 2012 09:47 AM
Posted to Indiana Courts
LaW - "Facebook’s New Timeline Feature: Will It Increase Users’ Risk of Identity Theft?"
Interesting article today by Prof. Anita Ramasastry in Justia's Verdict.
Posted by Marcia Oddi on January 31, 2012 09:38 AM
Posted to General Law Related
Ind. Courts - "The legal battle over fines levied against absent Indiana House Democrats isn’t so much about whether they must pay the fines as it is about the collection process."
One probably can't state it more clearly than Tracy Warner does in the lede to his opinion piece today in the Fort Wayne Journal Gazette. The case is Berry v. Crawford, see Jan. 27th ILB entry here.
More from the FWJG:
Democrats argue that House Speaker Brian Bosma can’t just call state Auditor Tim Berry and tell him to withhold the fines from Democrats’ paychecks any more than a debt collector can call a company and tell them to withhold past-due payments from a worker’s check.Just as a debt collector must go through the courts to garnish wages, the Democrats say House Republican leaders must – as a matter of law – follow the legal process to take money out of a paycheck.
Though a Marion County judge has initially agreed with the Democrats – whose attorney is Mark GiaQuinta of Fort Wayne – the Indiana Supreme Court’s action last week may well indicate the state’s justices won’t go along with that reasoning. Instead, by taking the case, the court may be signaling it will rule the courts should stay out of the fight.
The high court took jurisdiction of the case from the Marion County court. Contrary to pressing legal issues such as school vouchers and the possible removal of Charlie White as secretary of state, there is no emergency involving the fines that should require the state’s high court to step in immediately.
Justice Frank Sullivan indicated as much in a dissent on accepting the case immediately, writing that the case fails to live up to the “emergency” standards required to bypass the normal appeals process. Sullivan wrote that the state “will not suffer any substantial expense, damage, or injury” by waiting for the process to follow its usual course.
The Supreme Court’s action may well indicate that the majority of justices agree with Attorney General Greg Zoeller and other state officials, who argue that the courts have no power to resolve a legislative dispute and, as Zoeller said, “should not allow the judicial system to be used as a legislative tactic during the heat of the session.”
Posted by Marcia Oddi on January 31, 2012 09:26 AM
Posted to Ind. Trial Ct. Decisions
Courts - SCOTUS Fails to Communicate Effectively to Public
In the Blog of Legal Times, Tony Mauro reports on law dean Erwin Chemerinsky's recent speech, part of a recent "symposium on the Court, the press and the public at Brigham Young University’s J. Reuben Clark Law School. Scholars and journalists spoke on different aspects of the interaction – or lack thereof -- between the Supreme Court and the public." More:
The Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky said on Friday.And this failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does. * * *
Chemerinsky did not focus only on the long-running debate over cameras at oral argument, highlighting other deficiencies in its procedures. The Court has pointed with pride to advances in this area, including its web site, where decisions and oral argument transcripts are posted quickly. But Chemerinsky said much more is needed for the Court to explain itself better to litigants and to the public, in the interest of enhancing the Court’s legitimacy and public understanding.
For example, he said the Court owes litigants as well as the public some explanation why it has denied review in pending petitions. The “vast majority” of petitioners, even some that pose a circuit conflict, are denied review without learning why. That, he said, is an “extremely important failure to communicate.”
Posted by Marcia Oddi on January 31, 2012 09:19 AM
Posted to Courts in general
Ind. Gov't. - "Testimony to come today in Indiana Secretary of State Charlie White's fraud trial"
The jury has been seated, and now the Indianapolis Star's Carrie Ritchie previews today's opening testimony in the Charlie White criminal trial.
Posted by Marcia Oddi on January 31, 2012 08:22 AM
Posted to Indiana Government
Monday, January 30, 2012
Ind. Law - Legislation to Narrow the Scope of Indiana’s Public Intoxication Law Approved by Senate, Moves to House
From a news release:
STATEHOUSE (Jan. 30, 2012) – Senate lawmakers approved legislation authored by Sen. Mike Young (R-Indianapolis) that would narrow the scope of Indiana’s public intoxication law. Senate Bill 97 passed by a vote of 30-20 and moves to the House of Representatives for further action.For background see this ILB entry from Jan. 9, 2012 that includes references to: "That [ruling] could pull over every single taxi in Broad Ripple," about the Supreme Court's June 24, 2011 opinion in Brenda Moore v. State of Indiana.Young’s legislation states that individuals may not be convicted of public intoxication unless they endanger their own life, someone else’s life or is likely to disturb the peace or create a disturbance.
“Indiana is one of only five states with a public intoxication law that only requires a person to have consumed alcohol to be charged with the offense, with no regard to the situation,” Young said. “Our current law is too vague and allows Hoosiers to be charged with a crime even if they do the right thing and get a ride or try to walk home. That’s not fair and this bill aims to protect those individuals.”
Young said SB 97 would address a recent Indiana Supreme Court case known as Moore v. State, in which the court reinstated the public intoxication conviction of an Indianapolis woman who was a passenger in her car being driven by a sober designated driver.
Posted by Marcia Oddi on January 30, 2012 07:53 PM
Posted to Indiana Law
