Secretary of State, Charlie White, who is defending against voter fraud allegations related to his reported residency, undertook to represent himself. This was, apparently, a mistake. He filed a petition for transfer, asking the Indiana Supreme Court to review the matter. However, it’s too early in the process for him to do this. The Indiana Supreme Court issued an order (pdf) (h/t Indiana Law Blog) rejecting the petition.

By way of explanation, the Supreme Court said that App. R. 56(A) only gives him the right to skip the Court of Appeals (assuming, for the sake of argument, that the prerequisites for that rule are present). It does not give a party the right to skip the trial court. This matter has been heard by the Indiana Recount Commission. The commission’s decision is subject to review by a trial court; in this case the Circuit Court of Marion County.

The relevant Appellate Rule states:

A. Motion Before Consideration by the Court of Appeals. In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination. If the Supreme Court grants the motion, it will transfer the case to the Supreme Court, where the case shall proceed as if it had been originally filed there.

Secretary White’s problem was that this case is not yet within the jurisdiction of the Court of Appeals.

Sophia Voravong, reporting for the Lafayette Journal & Courier, has a story on Norris Wang’s planned retirement from his position as Tippecanoe County’s magistrate. I’ve come to appreciate Norris as a friend over the years, and he’ll be missed.

The story is absolutely correct about his unfailing politeness. The cases I had with him, as a general rule, were pretty routine; but they involved people – often times – with sub-optimal social graces who were unhappy to be where they were. If these folks were plain unreasonable, the Magistrate would lay down the law; but, barring that, he treated them with patience and respect. Those are awfully good lubricants for the machinery of our legal system.

According to Lindsay Machak, writing for the Northwest Indiana Times, a lawsuit has been filed against the City of Hammond. Part of this previous year’s assault on local government by the Indiana General Assembly was a statute that encourages lawsuits by gun owners.

The plaintiffs are suing over a city gun ordinance that is apparently on the books but which has not been enforced.
IC 35-47-11.1-5 which creates standing for a citizen to file a lawsuit provides:

A person adversely affected by an ordinance, a measure, an enactment, a rule, or a policy adopted or enforced by a political subdivision that violates this chapter may file an action in a court[.]

This section became effective July 1, 2011. The first hurdle will be to establish that the ordinance was adopted or enforced after that date. They might argue that merely by having a statute remain on the books after July 1, 2011, a municipality violates the statute and they are adversely affected by it. But, I don’t know that that interpretation is entirely clear.

In any event, it’s a headache for the city. If they lose, the statute provides for attorney’s fees and liquidated damages in the amount of three times their attorney’s fees. So, the incentive for the plaintiff is to litigate as much as possible to increase the attorney fees and thereby increase the multiplier for their damage calculation. The corresponding incentive for the municipality is to capitulate as quickly as possible; pretty much regardless of the strength of their legal case.

Today at 1:00 p.m., the General Assembly’s “Barnes v. State” subcommittee will hold a hearing at 1:00 p.m. in room 431 of the State House. The purpose of the committee is to consider a legislative response to the Indiana Supreme Court’s decision in Barnes v. State (pdf) which held, in effect, you can’t use force against a police officer just because you think he is wrongfully entering your property. (See my prior entry here.)

At common law, a person had the right to resist, using reasonable force, the unlawful entry of police into one’s home. The Indiana Supreme Court decided, in effect, times have changed since the old days, and the costs outweigh the benefits in our modern times. In the bad old days, the king’s men could abduct you, hold you indefinitely, and torture you. And, if you did get out of the dungeon, you had no recourse against the king. Today, you have a right to bail, speedy trial, a probable cause hearing, etc., and you can sue the government for false imprisonment and other violations. With those protections, the dangers are reduced, and make the dangers on that side of the scale less than the dangers you get when you allow people in tense situations to make snap legal decisions about whether police action is lawful and use force to resist the police.

Not mentioned in this decision, but quite possibly on the judges’ minds, was the prospect of everyone who used force against the police making up some unlawful entry story in retrospect and making violence against the police a more viable alternative for criminals.

It looks like this is the subcommittee’s second meeting. The first was on June 29. Today, their agenda is to consider draft language and select a next meeting date. If anything, I’d suggest that they authorize resistance where there is imminent risk of significant physical harm. What I’d want to avoid is encouraging criminals to resist now, make up reasons for resisting later; particularly where citizens acting lawfully could gain redress by having a court or some neutral party sort it out later without encouraging violence in what could often be a tense, rapidly developing situation.

So, now we have our first class action on the State Fair accident. Gary Welsh at Advance Indiana has some good thoughts on the press release by Cohen & Mallad.

Cohen & Malad says it is waiving its fees against the state so “more of these limited funds can go towards covering the real economic losses of those affected by this tragedy.” The applicable word here is “affected” as opposed to injured. Yeah, I was deeply affected watching the twin towers live on TV come crashing down after two jet airliners were crashed into them by terrorists, but I didn’t suffer the real injuries of those who lost loved ones or suffered life-threatening injuries from the terrorist attack. By seeking recovery for the thousands of people who merely witnessed the tragic event, this lawsuit actually harms the real victims–the dead, the injured and their surviving loved ones.

The firm seems to be trying to sweep up the litigation in this, not just for those actually, physically injured, but also for those who just, more or less, had a bad day because they saw some bad stuff. What was it, 10 days ago?

This post comes with a whole heap of disclosures and caveats. I have no experience in criminal law, and I have no particular knowledge of the facts of this case other than what I’ve read in the newspaper and my limited interactions with the victim. But, a recent case on the south side of Lafayette have me dusting off what I learned about felony murder from Professor Bradley back in law school.

Basically, the idea is that you can be guilty of murder even if you didn’t intend to kill the person if you kill them while you were intentionally committing another felony. Indiana’s felony murder statute is set forth at IC 35-42-1-1(2):

A person who kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor, or carjacking commits murder, a felony.

Facts are definitely still emerging in the new Lafayette case, but we do know that a guy is dead from a gunshot wound. It looks to have been a robbery and possibly a revenge shooting.

Wikipedia introduces the concept of felony murder:

The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to murder. Second, it makes any participant in such a felony criminally liable for any deaths that occur during or in furtherance of that felony. While there is some debate about the original scope of the rule, modern interpretations typically require that the felony be an inherently dangerous one, or one committed in an obviously dangerous manner.

Controversy, such as it is, over the concept generally involves concerns that the person can be convicted of murder even if they did not intend to cause death.

The Indiana Court of Appeals issued the opinion of Jackson v. Trancik (pdf) today, involving proper methods of proof for the amount due to a medical provider for medical services. The background was a doctor who provided medical services, billed the patient’s insurer, got partial payment from the insurer, got a $20 co-pay from the patient, and sued for the balance. The patient apparently did not dispute the balance due until after the lawsuit was filed. The doctor filed for summary judgment, relying on certain presumptions created under Indiana rules of evidence for medical bills (Ind. R. Evid 413) and for bills sent out that are not disputed within a “reasonable time” (the “account stated” doctrine).

The patient attempted to resist the judgment by submitting the affidavit of a person holding herself out as a medical billing expert. Her qualifications were that she makes a living evaluating medical bills (kind of a bootstrap “I’m an expert because I make my living being an expert” rationale) and she ran the bill through a coding system apparently used by insurers and found that the doctor’s bill did not comport with that billing system. The trial court struck the affidavit and, having nothing else to rebut the presumptions, summary judgment was entered in favor of the doctor.

The court of appeals took a look and concluded that the expert affidavit should have been regarded as creating a material question of fact, meaning that summary judgment was not appropriate, but the value of the services should be given to the trier of fact as a question.

If I’m reading the language of the Court of Appeals correctly, I think they’re trying to allow use of such experts when a doctor is trying to collect on a contract but not where a tortfeasor is trying to rebut a personal injury plaintiff’s prima facie case based on medical bills. I’m not sure they succeeded. In both the contract case (where the doctor is trying to collect) and the personal injury claim (where the injured party is trying to recoup the medical costs they’ve incurred because of the other party’s negligence), the standard is the reasonable value of the services. The Court of Appeals tries to thread a needle between “the amounts usually, customarily, and reasonably billed for such services” in the contract case on the one hand and “the reasonable value of the services” on the other.

The use of slightly different language does not, I don’t think, reflect an intent that the plaintiff recover anything other than the reasonable value of the services in either case. So, if the Court of Appeals is trying to create a system where doctors can be expected to wrangle with the potentially sketchy testimony of “medical billing experts” but injured plaintiffs can not; I’m not sure it succeeded, nor do I think such a double standard should stand. The underlying problem is that the lack of transparency in medical pricing is astounding. However the Courts choose to address that problem should apply equally to medical providers and personal injury plaintiffs.

Another issue I would have liked to have seen addressed in the opinion is that the expert apparently based her opinion on common insurance billing practices. She opined that doctors were supposed to bill for successive services during the same visit in a certain way and that, if they didn’t, the insurance company would adjust the bill downward. But there is no indication as to whether this doctor was part of the insurance company’s network; e.g. whether it was reasonable to treat this doctor the same as doctors who had signed on to the insurance company billing practices. From the facts I read, my suspicion is that the doctor wasn’t part of the network. And, it makes a difference, the doctor is presumably signing on to a network – and subjecting himself to the requirements that entails – in exchange for some benefit (e.g. getting more patients because he or she is in the network). Sure, the insurance company paid some money — but for all we know from the opinion, that could have been solely a function of the insurer’s contract with the patient; there may not have been any kind of agreement between the doctor and the insurer. And, if that was the case, I think the trial judge would have been correct to strike an expert’s affidavit if it was based on evaluating the interaction between insurers and doctors who did have a contract with one another.

Today the Indiana Court of Appeals issued an opinion in the case of Miller v. Owens concerning the interaction between child support wage withholdings and garnishments to enforce civil judgments.

I was, frankly, surprised to see the case because it reflected the understanding I’ve had and the prevailing practice in all of the courts in which I’ve practiced. When a creditor gets a judgment against a debtor, Indiana law allows the judgment creditor to enforce the judgment by garnishing the wages of the judgment debtor. But, there is a limit – the creditor can’t take everything. Essentially, the creditor is entitled to 25% after taxes and other required withholdings (Social Security but not something voluntary like insurance or 401(k)).

However, child support can take out a lot more; up to 60% in some cases. Here is the twist, relevant to this case. A child support order takes priority over a regular garnishment. And, if the child support takes out in excess of 25% of the judgment debtor’s wages, the creditor is not entitled to anything from its garnishment. I had figured this to be pretty well settled; and I guess the Court of Appeals agreed. But, in this case, at least; the judgment creditor had persuaded a Miami County judge that the judgment creditor could get up to 25% from the garnishment so long as the child support plus the garnishment didn’t exceed the higher 50% applicable to child support orders.

That garnishment structure stood, apparently, for the better part of a decade until, after a series of job changes, one of the employers directed to make a withholding fought the order, got the trial court to reverse its interpretation, and had the Court of Appeals agree with that decision.

Also, too, the case had discussion of the “law of the case” doctrine (not binding on the trial court unless affirmed by the court of appeals); and “offensive collateral estoppel” (not deemed applicable in this case.) Lots of procedural goodness.

A few months ago, I blogged with some skepticism about a Court of Appeals decision having to do with immunity for enforcement of an animal control ordinance by the City of Evansville.

The Court of Appeals offered some (in my mind) muddled reasoning for holding that designation of the dog as a dangerous animal wasn’t part of the enforcement mechanism for the Evansville animal control ordinance.

Turns out my skepticism was justified. The Indiana Supreme Court reversed the Court of Appeals decision in Davis v. Animal Control – City of Evansville(pdf).

[T]he critical determination is not whether a governmental entity failed to follow procedures; it is whether a governmental entity or employee failed to enforce a law. In Mullin, we held that responding to a fire emergency is not an activity involving government compulsion to obey laws, rules, or regulations or sanctions or attempts to sanction violations thereof. But in this case, we believe it is clear that the plaintiff’s claim does constitute an allegation that the City Defendants failed to enforce the law.

Because the Plaintiff’s claim against the municipality hinges on an allegation that it failed to enforce the law, it’s barred under the Indiana Tort Claims Act granting immunity against such claims.

The Indiana Court of Appeals decided one of those MERS cases, relying a good deal on a Kansas case I mentioned some time ago. (Also see). In the case of Citimortgage v. Barabas (pdf), a split panel of the Indiana Court of Appeals held that MERS, as a nominee for Irwin Mortgage, had no interest to pass along to Citimortgage.

Apparently what happened was something like this: Barabas bought Property with Irwin Mortgage as the Lender. The mortgage securing the loan was given to MERS “solely as nominee” for Irwin Mortgage. Later, Barabas took out a second loan with ReCasa and defaulted on that loan. ReCasa foreclosed on the second mortgage and, in the course of the foreclosure proceedings named Irwin but not MERS to speak to their interest. In the meantime, Irwin had apparently sold its interest in the loan and, therefore, when the foreclosure proceedings came around simply filed notice with the court disclaiming its interest.

Whoever bought Irwin’s interest in the loan never got notice; they were likely relying on MERS to get notice of the lawsuit and either take appropriate action or send the notice along. The buyer may have been Citimortgage, but it’s not clear — it appears that Citimortgage bought its interest in the loan sometime after the ReCasa foreclosure. In any event, judgment was entered in favor of ReCasa and the mortgage securing the first loan was foreclosed. Sometime later, Citimortgage came along and tried to set aside the ReCasa judgment because the ReCasa proceedings had not provided notice to MERS, the entity named on the mortgage recorded at the Recorder’s office.

The Court of Appeals rejected that claim, saying that notice requirements to MERS were satisfied when notice was sent to Irwin Mortgage. Because the mortgage document set forth that MERS was the nominee for Irwin, the court reasoned, MERS was simply a strawman for Irwin.

This is a problem for MERS participants. You’ll recall that the MERS system was created so that loan notes could be sliced, diced, repackaged, bundled and sold hither and yon without the messiness of having to re-record mortgages securing those loans every time the loan changed hands. MERS would simply be a placeholder for whoever the owner of the loan happened to be at the moment. Here the court is saying that MERS is not an independent entity entitled to notice. If the lender of record gets notice of foreclosure proceedings, that’s sufficient for the court. And, if the lender of record, after selling the loan, does not pass along notice to MERS or whoever happens to own the loan, junior lienholders are going to jump their place in line.