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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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