On these pages, I have followed the saga of Earlham College’s efforts to maintain control over Conner Prairie, a living history museum, located in central Indiana. At the heart of Earlham’s problem with the museum is the concept of charitable trusts. When a donor makes a bequest or gift of real estate to an institution, the ability of the institution to sell, modify or destroy portions of the real estate in the future will depend on many factors.

The easiest way to determine the extent of the institution’s authority to dispose of the real estate would be for the person making the gift to set out his or her intentions for the future in a trust document. This way, the institution knows up front what the limitations are, and can reject the gift if the limitations are not to its liking. A cruder way of accomplishing this would be to put conditions into the deed that would limit the use the real property could be put to, giving the original owner or his/her heirs the right to take the property back if the limitations were not abided by.

But what if there are no such instructions or explicit limitations? With Conner Prairie, Earlham received a 58 acre farm with the old Lilly homestead on it some 40 years ago. There were conversations between the Lilly patriarch and the president of the college at the time regarding the College maintaining the property and opening some type of museum on the grounds. These conversations between two friends have been recounted by the survivor, Landrum Bolling here.

Because the gift of the farm to Earlham was for caretaking, the Indiana Attorney General claims that the gift created a charitable trust, meant to benefit the public. This broad intention to benefit the public, says that AG, gives him jurisdiction to investigate the management of this “public” asset. The bigger question in the Conner Prairie case is not the status of the farm, but the status of the millions of dollars that flowed from Lilly to Earlham in the subsequent years, and now provide a large part of the endowment that supports the successful museum and the college itself.

Maria Oddi, of the Indiana Law Blog pointed me to another struggle working its way through Indiana courts regarding public trusts:

A ruling in Vanderburgh Superior Court Tuesday puts a stop to the demolition of the chapel on the grounds of St. Mary’s Medical Center in Evansville. St. Mary’s plans to appeal the decision.

The ruling, from Judge Scott Bowers, states the donation of the chapel some fifty years ago is a charitable trust. And in the court’s eye, that means St Mary’s can’t make any changes, investments or expenditures, without consulting the donor’s family or heirs. Family attorney Charles Berger says, “What the judge did find was that the action of creating a permanent memorial was a bequest that creates a charitable trust. And the church is a charitable trust in the eyes of the law. The hospital violated the law in tearing down, beginning the destruction of the chapel without court permission.”

So, the judge rules St Mary’s is permanently enjoined from destroying the chapel, and must now refurbish and restore it to its original condition, and at St Mary’s cost. St Mary’s has already dismantled the interior of the chapel and removed the stained glass windows.

Link.

The hospital determined that it needed to tear down the structure to make way for a new heart center. Private colleges and hospitals are not state bodies, but through history, they have been considered to be be “Public” institutions, contributing greatly to the fabric of our society. This vision of these institutions often inspired individuals to see them as appropriate depositories of valuable assets of general interest to the community. Now, like everyone else, they are just businesses competing in the marketplace. Can a modern hospital really be expected to serve as the permanent property manager for a chapel? Where does that fit into their core mission? Will incurring the expense of maintaining such an old structure and making it available to the public bring the hospital any profit? Obviously, the hospital saw a new heart center to be a better investment. The lesson for the hospital, though, is you cannot take the benefits of a gift without taking on the burdens.

The Court of Appeals issued today a very important case on domestic protective orders: Tons vs. Bley. Many of us attorneys have thought application of the domestic protective order was too broad, and the impact of the order too severe. It would be one thing for courts to have been authorized to impose limits, including handgun prohibitions, on those convicted of criminal offenses, but the way the statute is written, harsh restrictions, including firearm bans, can come down for conduct that falls far short of a crime.

Also, the statute can provide great leverage to one party when a relationship breaks up. A protective order can be obtained on mere allegation of threatening, and then used to keep the allegedly dangerous person from seeing their kids. Under the statute, the fact that lots of time passed between an act of violence and the application for the order cannot be the basis for denying the order. We have had cases where an order was issued during a divorce, where the acts are over 10 years old, and the parties had lived together as man and wife for years before the order was issued.

The court today cleared up two major issues:

The protective orders pertaining to Barbara and Brian present a serious problem. There is no evidence that Tons ever threatened Barbara, and she admitted that he did not. Any acts of violence by Tons against Barbara occurred during their marriage that ended in 1996. While the court may not deny the petition solely by reason of the lapse of time between the act of violence and the filing of the petition, Ind. Code § 34-26-5-13, we may consider remoteness in determining whether a sufficient threat exists to warrant the issuance of a protective order. We believe that unspecified acts of violence occurring eight years previously are a not sufficient basis for the issuance of a protective order. Therefore, we must reverse the protective order as it pertains to Barbara. Likewise there is absolutely no evidence of any acts of violence, or threats, by Tons toward Brian. The protective order as to Brian is reversed.

The second issue they address is the standards used to evaluate whether to issue the firearm ban. In this arena, in my assessment, the court did not give us much help:

That portion of the court’s order regarding firearms, ammunition, and deadly weapons raises more concerns.

. . . .

Here, there is no evidence that Tons committed any of the types of acts Garmene held sufficient to warrant issuance of the order that the respondent not possess or use any firearms, ammunition, or deadly weapons. Therefore, we reverse that portion of the protective order.

The view of the dissent is troubling here:

In my view, under the current scheme all that is needed to support an order prohibiting the possession of firearms or deadly weapons is a finding, by a preponderance of the evidence, that the respondent poses a credible threat to the safety of a petitioner or member of the petitioner’s household, which is identical to what is needed to order the issuance of a protective order in the first place. There need be no separate evidence and finding specifically relating to firearms and weapons and a substantial threat of serious bodily injury. In this particular case, I am convinced in any event that given Tons’ previously demonstrated violent tendencies, the trial court may reasonably have concluded that prohibiting Tons from possessing firearms or dangerous weapons was necessary to diminish the threat of violence to Travis, Barbara, and Brian. I would affirm the trial court’s order in its entirety.

Troubling, because while the majority found that the petitioner did not even present enough evidence to justify a protective order, the dissent thinks she proved Tons had “previously demonstrated violent tendencies” justifying denying him the right to possess firearms.

It will be interesting if this one ends up in front of the Indiana Supreme Court.

The Pal Item continues today with excellent coverage of the Conner Prairie dispute. The dispute that started between Earlham College and the appointed board of director for Conner Prairie, a living history museum in Carmel, Indiana, has progressed into a court fight between Earlhm and Indiana’s Attorney General, Steve Carter. Carter recently obtained an order from the trial court requiring Earlham to “turn over” 40 years of accounting records on its management of the musuem. Now Earlham has announced its intention to appeal this ruling:

Earlham College officials say they will appeal a judge’s ruling to turn over 40 years of financial records on Conner Prairie.

Lou Gerig, a spokesman for Earlham on the Conner Prairie issue, said Monday he didn’t know exactly when the appeal would be filed.

“We are going to appeal and hope we can move as quickly as possible to come to a decision,” Gerig said.

On Sept. 20, a Hamilton County judge ordered Earlham to provide a 40-year accounting of the original 58.65 acres and building conveyed to it by Eli Lilly in 1964. Judge William Hughes gave the college 60 days to provide the information to Indiana Attorney General Steve Carter.

But Gerig said the college has given Carter countless pages of information documenting its stewardship of what has become one of the largest tourist attractions in Indiana.

“We have already provided the attorney general audited financial statements, which is thousands of pages,” Gerig said.

He also said the judge gave no rationale for the decision.

Link.

The paper also ran a letter from Carter and one from Douglass Bennett, the president of the college:

Carter:

The attorney general’s office has no money involved but I do have a duty to perform. If a bank were to hold money in an account for the public and money in other accounts for itself and others, the public would have every right to an accounting of the money being held for the public. That is my duty, and one that I respectfully intend to perform.

Link.

Bennett:

The editorial says that “Earlham is trustee of a large cache of money and land” donated by Eli Lilly. I would like to offer some additional clarity on this. The public charitable trust consists only of land: 58 acres, the William Conner House and some outbuildings. Mr. Lilly also gave Earlham the surrounding 1,370 or so acres of land, not in trust and without any restrictions. Mr. Lilly later gave Earlham several stock gifts to benefit both the museum and other parts of Earlham. These stock gifts were restricted endowment gifts, however, not “trusts.” The attorney general incorrectly treats all the land and all the endowment money as a trust or trusts and is thereby attempting to subject them to the special laws and restrictions for trusts.

We believe the attorney general is simply wrong about most of the land and all three stock gifts. That is why we will pursue an appeal to Judge Hughes’ ruling. Not just Earlham but other colleges, museums and charities would also be adversely affected by a ruling that endowment gifts for specific purposes should legally be considered as “trusts.”

Link.

The article and Bennett’s letter note that efforts continue on both sides to resolve the issue by agreement.

Indiana has a law prohibiting being at a place where illegal activities are going on. This law permits the arrest and conviction of someone who is not actively engaged in any otherwise illegal conduct (I’ve had clients who were sleeping upon arrest for this), but there is illegal activity going in the place where they are.

So, when the guy sitting across the room at a party starts smoking a joint, you are under an obligation to vacate the premises.

The crime is called visiting a common nuisance, and is defined by I.C. § 35-48-4-13(a), as: “[a] person who knowingly or intentionally visits a building, structure, vehicle, or other place that is used by any person to unlawfully use a controlled substance commits visiting a common nuisance, a Class B misdemeanor.”

From the statute, it is clear that the state has to prove that you knew of the illegal activity to be found guilty. If there are people using drugs in the basement, while you are sitting unaware in the living room, you have committed no crime.

From the face of the statute, it would appear that the police can arrest everyone in the room if they find one person doing drugs, giving the police broad discretion to arrest folks at house parties and other gatherings. However, the courts read in another limit on this statute based on the use of the word “common.” In order to convict someone under the statute, the state must also show that the place had been used on more that one occasion for the use of illegal drugs. This reading of the statute has been confirmed in Ann Zuniga vs State of Indiana.

If you are an undocumented immigrant living and working in this country, you face many roadblocks to living your life. One of the big roadblocks has been housing. Just about all banks require you to give a social security number to qualify for a mortgage. If you are an undocumented worker, you do not have one of these. Hence, your earnings go towards paying rent, and you are shut out of one of the best investments and source of savings: Homeownership.

Indiana has seen a great influx of undocumented workers over the last decade. Previously, the bulk of undocumented workers came to the state seasonally, to pick fruit, tomatoes, and provide other services to agriculture. These workers lived in temporary camps, and would generally leave the state during picking seasons. Over the last several years, immigrants come to Indiana not to pick fruit, but to pick up manufacturing jobs that provide both long-term, stable employment, and far more income than could be earned for factory work in the immigrants’ homeland.

The problem with this change in migration trends is long term settlement of undocumented immigrants in communities where they cannot truly settle.

Now, despite the fact that the players in the secondary mortgage market, Fannie Mae, Freddie Mack and Ginnie Mae will not purchase these mortgages, a few lenders, including Fifth Third, are initiating programs to finance home purchases by undocumented workers. Link.

Suburban developments give homeowners the opportunity to pick and choose the lifestyle they wish to pursue. Rules regarding all manner of issues can be put into place, from fences, trees, building styles and construction materials, right down to whether you can hang out your laundry or park an RV in front of your house. Obviously, potential buyers should review these rules carefully, to assure that the rules reflect their values. Generally, these rules are contained in a document containing a series of restrictive covenants. The covenants are “annexed” to the deeds on the lots of the subdivision, meaning that they will stay with the lots from their creation forward.

The deal is, if you do not like the rules, don’t buy the property. However, either because people do not pay attention to these rules, or because they do not think people will enforce them, there is an endless series of disputes in court between those seeking enforcement of the covenants and those who are violating them.

With a basic set of restrictive covenants, it is the neighbors in the development who have standing to take a violator to court, seeking enforcement of the rules. Generally,though, the covenants will create a homeowners association and empower the association to bring action to enforce the rule. These associations can be basically unfunded volunteer cores, or firmly established organizations with employees, duties and powers, security functions, and the right to a user fee, paid by the lot holders in the development.

The result is a form of private government. In fact, in some communities, the homeowners associations provide so much of the basic infrastructure for the neighborhoods that there is little need for an extensive local government. This is why you find part-time governments in communities with more than a hundred thousand people living in them, while in traditional urban settings, a town of forty thousand takes a huge city government to function.

Unlike public governance, with homeowners associations, if you do not like the laws, again, you should not move in. With public government, all you can do is cast your vote and hope that enough people agree with you to fix the problem. This “vote with your feet” or vote with your mortgage system seems to fit modern Americans better than the traditional “social contract” that supports local governments. But not everyone is happy, and some states have undertaken to reign in these private governments.

Marcia Oddi of the Indiana Law Blog has had some good coverage of these issues and has a nice summary of recent developments up now.

Ken Lammars of CrimLaw noted my earlier discussion of the jury trial penalty. I do not have comments on this blog (many reasons), but Ken does so I received feedback on my perceptions from Pieman, a prosecutor from Portland, Oregon. Ken has now posted Pieman’s comments on his blog and offerred his own view of the issue. Read on.

I have one of these:

It was a gift from someone. It makes having a “springy” book open while doing somthing else (like typing) easy (It actually preserves my books as I am less inclined to grab the book and bend it back sharply to keep the page open). It is available here.

Now I know I should be careful where I leave it. My kids could get ahold of it, for christsake!

TAMPA, Fla. — A weight may soon be lifted off a Maryland woman charged with carrying a concealed weapon in an airport.

It wasn’t a gun or a knife. It was a weighted bookmark.

Kathryn Harrington was flying home from vacation last month when screeners at the Tampa, Fla., airport found her bookmark. It’s an 8.5-inch leather strip with small lead weights at each end.

Airport police said it resembled a weighted weapon that could be used to knock people unconscious. So the 52-year-old special education teacher was handcuffed, put into a police car, and charged with carrying a concealed weapon.

She faced a possible criminal trial and a $10,000 fine. But the state declined to prosecute, and the Transportation Security Administration said it probably won’t impose a fine.

Harrington said she’ll never again carry her bookmark into an airport.

Link

LAWRENCEVILLE, Ill. - The Lawrence County Board unanimously approved a three-year contract with union members of the sheriff’s department that calls for a pay raise and clarifies the blood-alcohol content an on-duty officer can have and continue to work.

Board Member Gene Hays said he understood some people would oppose the .04 percent BAC level as too lenient. But he maintained there has to be a margin allowed for errors in testing; if the board tried to establish a zero-level standard, he said it would not stand up in court.

The Star reports today about a protest of people upset with the workings of Indiana’s Child Welfare System:

About two dozen protesters accused the state’s Child Protection Service and family courts of unfair treatment during a rally today in front of the Statehouse.

Holding signs bearing slogans such as “I Want My Children Back!” and “Hitler Would Love America’s Family Courts,” the protesters said they have become victims of a system that is accountable to no one.

I have discussed parents’ frustration with the system here and here.

The Indiana Law Blog has two good updates today on:

      The same-sex marriage challenge moving through the Indiana courts, and

      The custody dispute between two same-sex parents pending in a trial court.

Hmmm. The 7th Circuit just ruled that it is okay for the government to take pee out of you after an arrest for a minor misdemeanor.

After Jeffrey Sullivan was arrested for disorderly conduct, the Shawano County Jail in Wisconsin refused to admit him without a medical clearance, because of his high breathalyzer test result. To obtain that clearance, officers Jon Bornemann and Ed Whealon took Sullivan to the emergency room of a local hospital. After Sullivan failed voluntarily to produce a urine sample, the emergency room doctor ordered a catheterization. At the direction of medical personnel, Bornemann and Whealon physically restrained Sullivan during the brief procedure.

The Court found no constitutional violation. Read the entire case here.

The phrase “brief procedure” makes it sound like no big deal, a minor annoyance. I do not like the sound of this.

When politicians get up and talk about getting tough on crime and the death penalty, I know two things: 1. There is an election coming up, and 2. Most people have no concept of how much money the criminal justice system is costing them, because they continue to vote for these politicians. Taxpayers in a rural county are getting a crash course on the financing of the criminal justice system. The report from the Chronicle-Tribune:

To pay for a death penalty murder trial, Grant County is having to borrow $500,000 from its local road and street fund.

County commissioners and the county council Monday approved a loan to the county’s struggling general fund for the expenses.

“I firmly believe that if the state of Indiana wants to execute somebody, the state of Indiana needs to pay for it. Grant County cannot afford this case,” said Commissioner David Glickfield Jr. “This is money which could be going toward our hard-working employees. It’s money which could be used … to help us meet many of our needs, and it’s a very difficult situation for us to be in.”

Earlier in the day two of the three commissioners had expressed concern about the the loan, but Glickfield eventually voted for it, along with Commissioner Jeremy Diller. Commissioner Karen Bostic Weaver was opposed and declined comment.

Glickfield said that with the emotions involved it wouldn’t be right for the commissioners to avoid providing the money and possibly interfere with the process.

“The prosecutor has made a decision to go forward,” he said. “I think we have a duty to respect his decision, whether we agree with it or disagree with it. He’s an elected official.”

The state will reimburse the county half of the costs.

James Luttrull Jr., Grant County prosecutor, has not agreed to a plea bargain in the case and continues to seek the death penalty against Craig Cain, 20, Marion.

Jury selection is expected to begin later this month.

Cain is charged with murder, conspiracy to commit murder and robbery resulting in serious bodily injury in connection with the Jan. 5, 2003, stabbing death of 57-year-old Marion resident Karen Toy.

And that is just to pay for the trial. If the state proceeds to trial, and Mr. Cain is convicted, Grant county faces years and years of expenses as he gets his fair chance to fight for his life. The state may ultimately fulfil its desire to kill Mr. Cain, but the residents of Grant County are in for a bumpy ride.

[UPDATE]

Within 24 hours of that article running, the case is over:

Craig Cain has pleaded guilty to the January, 2003 homicide of Marion resident Karen Toy. In a plea agreement with the Grant County Prosecutor’s Office, Cain, 20, Marion, pleaded guilty to murder, conspiracy to commit murder and robbery resulting in serious bodily injury. The agreed upon sentence is life without parole plus 100 years. In exchange, the prosecutor’s office will not seek the death penalty against Cain.

The True Believer, a great place to check daily for all your drinking and driving news, runs a story today about a new gadget:

The Akron Beacon Journal reports today that some Ohio judges are ordering DUI offenders to wear an ankle bracelet alcohol monitor as a term of their probation or sentence. The bracelet is called a SCRAM, for Secure Continuous Remote Alcohol Monitor, and checks the amount of alcohol released through a person’s skin to determine BAC. It promises to work 24 hours a day and perform its test as frequently as every thirty minutes.

[The link to the story from the Akron Beacon requires a free registration. Yeah, I’ll use that everyday . . .]

I have talked about some of the troubling aspects of sex offender lists in the past. The Northwest Indiana Times take note of another problem: inaccuracy. The Times conducted a survey of the Indiana Sexual Offenders List in two Indiana counties and found significant problems:

A Times’ review of entries for Lake and Porter counties on the registry late last week showed that of the 410 sex offenders listed as living in the two counties, only 72 photos are posted on-line.

And in at least four cases, the wrong photos were posted next to the names of registered offenders in Lake County, raising a question of whether the public can rely on the small percentage of photos posted on the registry.

In those cases, the photo of one man was posted next to the names of four different offenders. Another photo was posted next to the names of two different offenders.

The article goes on to discuss efforts to fix the errors on the list, but since these will have to come from the Indiana legislature, a body that has trouble leaving well enough alone, there will be more trouble ahead:

Ayres [Indiana House Rep. Ralph Ayres, R-Chesterton] also plans to author two bills to be introduced to the General Assembly in the new year — legislation to keep registered sex offenders permanently from residing within 1,000 feet of schools and child day-care facilities and another that would keep such offenders from living near bus stops or other areas where children congregate

Uhh, where does that leave for them to live, corn fields? Stay tuned.

In Indiana, it is possible for two partners of the same sex to become the parents of a child or children through adoption. You will not find this specifically in the adoption code here in Indiana. In fact, I imagine the drafters of the adoption code are scratching their heads, trying to figure out how we attorneys slipped gay adoptions through the code. It started when a smart attorney figured out that when the code was amended to permit step-parent adoptions (i.e. a new spouse adopts his or her spouses children without terminating the parental rights of the spouse). There is nothing in the code limiting this process to people who are legally married. So the adoption was filed, and when the issue got to the Court of Appeals in Indiana, the courts agreed with this aggressive reading of the adoption code.

These adoptions typically do not develop much publicity. Typically, there will be no opponents in an adoption, no one to complain, and once the adoption is final, the records are closed, so it is difficult to discover whether the courts are approving gay adoptions down at the courthouse. But just as what goes up, must come down, some of the families that we put together in the law, will come apart.

Good coverage today in the Indiana Law Blog about a story breaking in the Indianapolis Star:

A couple sparring over custody of their son will square off today in a legal fight that also tests state law.

Both parents are women, and each is the mother of 4-year-old Luke Wihebrink — one biologically, the other by adoption.

Jill Wihebrink, 34, and Nancy Lafferty, 53, are ex-partners whose son was conceived by Wihebrink through artificial insemination, then adopted by Lafferty.

While some judges recognize such relationships, Indiana law does not. As a result, problems can arise when relations sour.

“Typically, adoption cuts all the ties between the birth mother and the child,” explains Maria Lopez, who teaches family law at the Indiana University School of Law-Indianapolis. “They call it the death penalty . . . because that’s it. It’s over.”

But the case today in Hamilton Superior Court 2 is not typical. It’s new ground for Judge Bernard L. Pylitt, who will decide how traditional family law applies to a nontraditional family.

“The issue here is, ‘How do you address custody?’ ” said attorney Allan W. Reid, who represents Lafferty. “Everybody acknowledges there is no law that applies to this situation.”

From a legal perspective, the problem began when a Tippecanoe County judge authorized the couple’s joint parenting with an adoption decree. A letter-of-the-law interpretation of the adoption statute does not allow it.

The potential for complications grew when Lafferty, a former English instructor at Ball State University, petitioned the Hamilton County court for a child custody order not technically allowed for unmarried parents. She had wanted to ensure her position as the custodial parent after Wihebrink was imprisoned for reckless homicide following a fatal drunken-driving accident.

The couple’s joint request also specified regular visitation rights to maintain Wihebrink’s parenting time while behind bars.

“That’s one of the ambiguities here,” said Reid. “In theory, both of them have custody. What we were seeking was just a recognition that Jill is in prison, Nancy is now the custodial parent.”

The lag in legislation to recognize the nontraditional family situations that modern-day judges must address is a growing challenge for courts nationwide.

Link