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Daily News 8/24/13

IL Staff
August 28, 2013
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The IL Daily delivers legal news to your email inbox. In case you missed it, following is a recap of some of the stories reported online since the last issue of Indiana Lawyer. To subscribe to the IL Daily, visit www.theindianalawyer.com.

Senate president takes call for constitutional convention nationwide

Indiana Senate President Pro Tem David Long, R-Fort Wayne, is pushing for an Article V Constitutional Convention by speaking at national meetings and trying to garner support beyond Indiana.During the 2013 session of the Indiana General Assembly, Long introduced two bills and one resolution which established the framework for a state-sponsored constitutional convention to curb federal spending.
 

long-david-mug Long

Long was the keynote speaker at the Balanced Budget Amendment Task Force’s daylong seminar Aug. 10 in Chicago. His remarks were titled, “How Nullifying Faithless Article V Delegate Votes can safely break Congress’s Amendatory Monopoly and save the American Dream.”

The task force has been advocating for states to draft and ratify a balanced budget amendment to the U.S. Constitution. Long is calling for states to take a more active role in passing such amendments by convening to push the limitation of the federal government’s control over commerce and its powers of taxation.

Talking about his effort during the legislative session, the senate president said states have a right to defend themselves against the flood of unfunded mandates that flows from Washington. He asserted that through a convention, convened under the provisions set forth in Article V of the Constitution, the states could reign in Congress and protect their sovereignty.

Long promoted his bills as keeping tight control and preventing a runaway convention. Senate Bill 224, which outlined the duties of the Article V Convention delegates, and SB 225, which provided the means for appointing delegates to the Article V convention, passed the Legislature with heavy Republican support.

His resolution making application to Congress to call a Constitutional Convention stalled in the Indiana House of Representatives.

Complaint: Wabash realtor faked court papers, intimidated renters

A northern Indiana realtor faked court papers in an attempt to intimidate renters and collect from them, according to a complaint from the attorney general’s office filed Aug. 8.

Gregory A. Blatz of Wabash “resorted to falsifying court documents for the impermissible purpose of creating fear, duress, and undue influence upon tenants, which amounts to lewd or immoral conduct,” according to the complaint submitted to the Indiana Real Estate Commission.

The complaint follows notice from Grant Superior Judge Warren Haas claiming that Blatz forged court documents titled “Notice of Claim to the Defendant(s),” misrepresenting that the defendants were required to attend a hearing and could be facing eviction from an apartment building managed by Blatz Realty.

When tenants appeared at the courthouse in Marion, clerks found no cases existed under the cause numbers cited in the documents. The complaint from the office of Attorney General Greg Zoeller seeks disciplinary sanctions against Blatz for three counts of fraud or material deception in violation of various professional licensing standards under sections of I.C. 25-1-11-5. The complaint also notes a criminal investigation is pending.

Teachers union could pay $14M to schools under settlement

The state’s largest teachers union and its national parent organization have agreed to pay $14 million under a tentative settlement announced by Indiana Secretary of State Connie Lawson and Indiana Securities Commissioner Chris Naylor.

Those funds would be paid to 27 Indiana school corporations whose employees contributed premiums to the now-defunct Indiana State Teachers Association Insurance Trust for medical insurance.

A 2009 lawsuit brought by the Securities Division of the Indiana Secretary of State claimed that the ISTA Insurance Trust had sold the schools unregistered securities, commingled the funds of its medical and long-term disability insurance plans and falsified reports to the schools.

Those allegedly falsified reports claimed the schools had amassed $27 million in excess premium payments, which were being held in “claims stabilization reserves” to offset future premium increases.

In reality, however, the ISTA Insurance Trust began using those claims stabilization reserves to pay off claims being generated by members in its long-term disability insurance plan, according to the lawsuit filed in December 2009 by Naylor.

“It had many of the characteristics of the run-of-the-mill Ponzi schemes that we see,” Naylor said. “Just the dollar amounts were bigger.”

The settlement was hammered out July 3 during an all-day conference in federal court in Indianapolis. But it is still pending approval by the school boards of the 27 school districts.

Once finalized, the settlement calls for ISTA and its parent organization, the National Education Association, to write a check for the $14 million within 10 days. The money will be paid to the Secretary of State’s office, which will distribute it to the school corporations.

“We are confident that we have a majority of the schools in agreement,” Lawson said. She added that while the state believes ISTA and NEA should pay back all $27 million, the settlement would avoid the years-long legal battle that would be necessary to win such a judgment against them.

Ex-IURC leader’s criminal charges dropped

The former chairman of the Indiana Utility Regulatory Commission won’t face trial on felony charges stemming from an ethics scandal at the agency.

Marion Superior Judge William Nelson ordered official misconduct charges dismissed against former IURC Director David Lott Hardy, who was fired by then-Gov. Mitch Daniels when allegations surfaced.

Hardy was accused of allowing former IURC administrative law judge and general counsel Scott Storms to work on a number of Duke Energy cases pending before the commission at the same time Storms was trying to land a job with Duke.

Hardy in 2011 was indicted by a Marion County grand jury. Hardy also was accused of improper ex parte communications with Duke employees in 2008 and 2010 regarding cost overruns at the Duke Edwardsport coal gasification plant.

Nelson wrote that the official misconduct statute under which Hardy had been charged, I.C. 35-44-1-2, was amended by the Legislature in 2012 to clarify that it applies to a public servant who “knowingly or intentionally commits an offense” in the performance of duties.

Nelson noted in the order that “the quick action of the Indiana Legislature in responding to Inspector General (David) Thomas’s request to clarify the application of the Official Misconduct is indicative of the legislative intent to apply the amendment retroactively.”

Speedway man charged with threatening judge, attorney

Delenore L. McTarsney, 53, Speedway, is charged with two counts of transmitting a threat through interstate communications after posting threats in rants made in an online comment section in response to a YouTube video.

Charges accuse McTarsney of making the threats last year and early this year that he would injure or kill people he believed conspired against him in a politically motivated prosecution during the tenure of former Indianapolis Mayor Steven Goldsmith.

McTarsney was specifically charged for making death threats against Southern District Bankruptcy Judge Robyn Moberly, formerly a Marion Superior judge, and Indianapolis attorney Mark Small, according to the charging information.

McTarsney was arrested at his home. An FBI agent who questioned McTarsney asked if he knew why he was being questioned, to which McTarsney responded, “probably about my rantings on the Internet,” according to the charging affidavit.

McTarsney faces two counts of violating Title 18 of U.S.C. Section 875(c), since the comments posted online were received by YouTube owner Google Inc., based in California. Assistant U.S. Attorney Sharon M. Jackson, who is prosecuting the case, said McTarsney faces up to five years in prison if he is convicted, as well as fines and a federally supervised release at the end of his prison term.

Northern District judge tosses immigration law challenge

A federal judge has dismissed a lawsuit challenging portions of Indiana’s immigration law passed in 2011.

Judge Jon DeGuilio of the U.S. District Court, Northern District of Indiana, ruled that an East Chicago nonprofit lacked standing to bring the suit against the state and numerous local and state elected officials, including sheriffs and prosecutors in Northwest Indiana.

The Mexican American Legal Defense and Education Fund filed the suit in December 2011 on behalf of Union Benefica Mexicana, a group providing cultural, educational and health programs to the Hispanic community and others in Northwest Indiana. The suit targets Indiana Code 22-4-39.5 and 22-5-6, statutes dealing with the verification of one’s eligibility to work in the U.S.

Union Benefica Mexicana v. State of Indiana, et al., 2:11-CV-482, claimed the immigration law passed in 2011 violates the Fourth and 11th amendments, the supremacy clause and the contracts clause. The lawsuit focused on two sections of the new law: one that allows the Department of Workforce Development to file civil actions against employers for reimbursement of unemployment insurance if they knowingly employed illegal immigrants; and a second that prohibits someone from performing day labor without filing an attestation of employment authorization.


zoeller-greg.jpg Zoeller

Indiana Attorney General Greg Zoeller said in a statement, “My office fulfilled its duty to aggressively defend the state statute the Legislature passed from two separate legal challenges while following the United States Supreme Court’s guidance. The federal court has vindicated our defense and thrown out the plaintiff’s challenge to the state statute.”

Zoeller previously said that as a result of the U.S. Supreme Court striking down warrantless arrest provisions of an Arizona law that were similar to those in Indiana’s statute, he would no longer defend those positions. Afterward, three state senators unsuccessfully sought to intervene to defend the statute in that lawsuit, which has been concluded.

State courts make expungement forms available online

The Indiana Division of State Court Administration has posted more than a dozen sample forms to petition for reduction or elimination of criminal records provided under Indiana’s new expungement statute.

The law took effect July 1, but its complexity concerned many prosecutors and defense attorneys.

The variety of forms apply to multiple scenarios for people with criminal records who seek remedies under the civil processes available through House Enrolled Act 1482.

The law includes these general provisions for people with no subsequent convictions or criminal charges:

• People arrested but not convicted, or convicted but vacated on appeal, may petition the court to seal records no earlier than one year after the date of arrest.

• People convicted of a misdemeanor, or a Class D felony reduced to misdemeanor, may petition the court to expunge conviction records no earlier than five years after the conviction.

• People convicted of most non-violent felonies may petition the court to expunge conviction records no earlier than eight years after the conviction.

• People convicted of most other felonies may petition the court to expunge conviction records no earlier than 10 years after the conviction with the consent of the prosecuting attorney. The remedy is not available to sex offenders, violent offenders or those convicted of official misconduct or human and sexual trafficking.

ACLU alleges IMPD officers infringed panhandlers’ free-speech rights

The ACLU of Indiana has filed a federal lawsuit claiming the city of Indianapolis and Indianapolis Metropolitan Police Department officers violated the free-speech rights of indigent panhandlers ordered to move from near Circle Center Mall last week.

The suit filed on behalf of four Indianapolis residents seeks class status for people who panhandle in the mile square of downtown bound by North, South, East and West streets. “The class is so numerous that joinder of all members is impractical,” the suit says. Named plaintiffs are Tina Morris, Melissa Peppers, Brenton Fordham and Fred Correll.

The plaintiffs say they passively requested contributions in compliance with state law and local ordinances but were cited, ticketed or ordered to move by four IMPD officers between  Aug. 12 and Aug. 14, ahead of one of downtown’s busiest weekends.  


ken falk Falk

According to the suit, IMPD officers ticketed or ordered panhandlers to move even though plaintiffs claims they were engaged in lawful activity. At least one plaintiff says an officer said the city was “in the process of passing a law that would prevent persons from engaging in the conduct in which she was engaged.”

“The First Amendment protects the rights of all people to ask for contributions, whether they are seeking political donations or asking for assistance for poor people on city sidewalks,” ACLU of Indiana legal director Ken Falk said in a statement. “This case seeks to vindicate a right that is fundamentally important for all.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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