Wednesday, September 08, 2010
Ind. Gov't. - "As Stadiums Vanish, Their Debt Lives On"
An eye-opening story today on the front page of the NY Times. And yes, Indianapolis is mentioned several times.
This large NY Times graphic shows the facts even most -- graphically. The long table going down the right side shows that the "public share" of Lucas Oil Stadium is 87% of $780 million (which comes out to a commitment of $678,600,000). Looking down the table, this appears to be a far larger number than the other stadiums across of the nation. (There is much more to be found in the article and the graphic.)
Posted by Marcia Oddi on September 8, 2010 07:32 PM
Posted to Indiana Government
Ind. Decisions - Another interesting 7th Circuit opinion today
This is a 9-page opinion in a Petition for a Writ of Mandamus to the ND Illinois, In re ERICH SPECHT. Chief Judge Easterbrook writes the opinion, which begins:
In 1999 Erich Specht started a home business, which he called Android Data Corporation. It offered website hosting services. Specht registered “Android Data” as a federal trademark for his business, which folded in 2002. Specht allowed his registration for the domain name “androiddata.com” to lapse, and the corporation was dissolved under state law. Specht did not use the mark again until 2009—when,having learned about Google’s Android operating system for mobile phones, he registered the domain name “android-data.com”, attempted to resurrect the corporation by sending backdated reports and fees to the Illinois Secretary of State, and filed suit against Google and 47 other defendants for trademark infringement.What is most interesting to the ILB is the closing, which deals with documents that Google and AT&T tried to protect as "confidential":
One final subject. Google and AT&T Mobility have asked us to keep confidential the language of their indemnity agreement and some other documents. Other participants in the wireless communication business might be able to obtain some negotiating advantage by knowing the agreement’s terms. Google and AT&T do not contend, however, that the terms are trade secrets. Documents that affect the disposition of federal litigation are presumptively open to public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies confidentiality. See, e.g., Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002); Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000). Because the motions to seal do not contend that the standards of Baxter and Union Oil have been satisfied, they are denied. If Google and AT&T wanted to keep the documents’ terms secret, they should not have proffered them in response to Specht’s motion.
Posted by Marcia Oddi on September 8, 2010 04:59 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - Hogsett's hearing set
Here is the agenda for the U.S. Senate Judiciary Committee meeting on Sept. 16, 2010. From Item I. Nominations:
Kathleen M. O'Malley, to be United States Circuit Judge for the Federal CircuitBeryl A. Howell, to be United States District Judge for the District of Columbia
Robert L. Wilkins, to be United States District Judge for the District of Columbia
Michael J. Moore, to be United States Attorney for the Middle District of Georgia
Michael R. Bladel, to be United States Marshal for the Southern District of Iowa
Kenneth J. Runde, to be United States Marshal for the Northern District of Iowa
James E. Clark, to be United States Marshal for the Western District of Kentucky
Joseph H. Hogsett, to be United States Attorney for the Southern District of Indiana
Posted by Marcia Oddi on September 8, 2010 04:51 PM
Posted to Indiana Courts
Ind. Gov't. - "Parking Meters Will Be a Cash Register That Never Stops Ringing for the Vendor"
Over the years, the ILB has had a long list of entries on the privatization of parking meters in Chicago.
Now it seems to be Indy's turn ...
"Parking Meters Will Be a Cash Register That Never Stops Ringing for the Vendor" is a quote from an entry in a blog called Urbanophile, by Aaron M. Renn, pointed out this afternoon by this Advance Indiana entry. The headline to the Urbanophile entry, dated Sept. 7, 2010, is "Indy’s 'Son of Chicago' Parking Meter Lease to Be a Disaster for City."
Posted by Marcia Oddi on September 8, 2010 04:08 PM
Posted to Indiana Government
Courts - "Ohio's republican justices squawk over website"
From the Columbus Dispatch's "Daily Briefing" blog, see this item posted by statehouse reporter James Nash.
Ohio justices are elected, and this eye-catching website supporting two candidates, is named Vote to End Injustice. It urges voters to elect "Trapp&Brown."
From Nash's blog entry:
A website criticizing decisions of the Ohio Supreme Court brings disrepute on the state's top court and should be taken down, two Republican justices wrote in complaints to the Ohio State Bar Association.
Justice Maureen O'Connor, running for chief justice, and Justice Judith Ann Lanzinger, running for reelection, say the website VoteToEndInjustice.com unfairly maligns the independence and judgment of the court. * * *
O'Connor called on the Ohio State Bar Association to publicly declare the website "false, mischaracterized and misleading." Lanzinger went a step further, calling for the "immediate abolishment" of the site. Last month, Lanzinger pressed opponent Mary Jane Trapp to denounce the website, which Trapp declined to do.
Dennis P. Mulvihill, president of the Ohio Association for Justice, defended the website in an interview today. He said most of the information is simply news articles on court decisions, while any criticisms are protected by the First Amendment.
"We're not undermining confidence in the court, and nor are we building up public confidence in the court," Mulvihill said. "We're simply reporting on what the court has done."
Posted by Marcia Oddi on September 8, 2010 03:22 PM
Posted to Courts in general
Environment - 2010 Indiana Environmental Statutes now available
This is the 2010 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, and edited by Marcia J. Oddi.. A convenient desktop resource including Title 13 of the Indiana Code, plus the administrative orders and procedures act (AOPA) and numerous other related Indiana statutes. 602 pp. $30.00. Order here, or use this shortened link.
Posted by Marcia Oddi on September 8, 2010 01:57 PM
Posted to Environment
Courts - "Kansas joins case to head off federal carbon regulation"
This lengthy story appeared in the Sunday, Sept. 5, 2010 edition of the Wichita Kansas Eagle. Some quotes:
Attorney General Steve Six has joined Kansas with 10 other states in an effort to head off federal regulation of greenhouse gases.Another story appeared yesterday in the Pittsburg Kansas Morning Sun.They seek to block federal courts from proceeding with a trial that Six says could lead to more restrictions on carbon emissions by utilities and other industries.
Six announced late last week that he has joined the state to a friend-of-the-court brief filed by Indiana in the case Connecticut v. American Electric Power Co.
The brief asks the U.S. Supreme Court to overturn an appellate decision to allow a trial in a lawsuit in which eight states sued six major power producers, alleging that their emissions of carbon dioxide and other gases were a public nuisance.
The Indiana Attorney General has taken the lead in the challenge to the 2nd Circuit decision. The ILB has not seen any local news or releases about this. The ILB has written in the past about the AG's ability to take a legal position on behalf of the State of Indiana in this manner -- see ILB entries headed "Who should decide Indiana's position on national legal issues? Who should know?", from 7/27/09, 8/7/09, and 10/3/09 (the last of which quoted the AG's public information officer: "Several of you have asked to be notified whenever the Indiana Attorney General files an amicus brief in a cert petition to the U.S. Supreme Court.")
Also interesting: the AG's position here is the same as that of the Obama administration. This August 25th NY Times story by Gabriel Nelson begins:
The Obama administration has urged the Supreme Court to toss out an appeals court decision that would allow lawsuits against major emitters for their contributions to global warming, stunning environmentalists who see the case as a powerful prod on climate change.Mother Jones' Kate Sheppard wrote on Aug. 27th:In the case, AEP v. Connecticut, the 2nd U.S. Circuit Court of Appeals sided with a coalition of states, environmental groups and New York City. The decision, handed down last year, said they could proceed with a lawsuit that seeks to force several of the nation's largest coal-fired utilities to reduce their greenhouse gas emissions.
The defendants -- American Electric Power Co. Inc., Duke Energy Corp., Southern Co. and Xcel Energy Inc. -- filed a petition for review with the Supreme Court earlier this month, asking the court to reject the argument that greenhouse gas emissions can be addressed through "public nuisance" lawsuits.
In a brief filed yesterday on behalf of the Tennessee Valley Authority, acting Solicitor General Neal Katyal agreed with the defendants, saying that U.S. EPA's newly finalized regulations on greenhouse gases have displaced that type of common-law claim.
The biggest problem, argue the plaintiffs, is that these promised EPA regulations aren't yet in place. According to the timeline issued by the agency, the initial rules aren't coming until 2011, and that’s just for the largest and newest sources of pollution. The EPA's initial regulations won't touch existing coal-fired power plants, such as those at the heart of this case, unless there are significant changes made to those facilities. It's not yet clear when, if ever, the EPA would start phasing in rules for all older plants.And from David Dayen of FireDogLake, also on Aug. 27th, an entry that begins:The Obama administration didn't have to weigh in on the case at all, which makes its intervention all the more aggravating for environmentalists. "At the very least, they could have stayed out of it," said Jonathan Zasloff, a law professor at UCLA. Letting the case go forward could also create a greater impetus for legislative action on climate change, something the administration has maintained is its preference anyway, and given it more bargaining power over polluters.
Instead, Zasloff notes that the administration is basically giving big emitters an escape route, as utilities (including some of those involved in this case) are expected to challenge and attempt to delay the EPA regulations every step of the way. This will, of course, make it more difficult for the agency to accomplish what it says it will do. By siding with them in this case, Zasloff says, "essentially the Obama administration and the solicitor general appear to have made their own lives a lot more difficult."
The Administration’s argument for trying to shut down a public nuisance lawsuit against the nation’s top greenhouse gas emitters is “an industry argument,” according to the co-lead counsel in the case, and has been contradicted by opinions of past Democratic Administrations.
Posted by Marcia Oddi on September 8, 2010 12:59 PM
Posted to Courts in general | Environment
Environment - "New Asian carp czar John Goss outlines approach"
Tina Lam of the Detroit Free Press reports:
The White House said today it has chosen John Goss, former director of the Indiana Department of Natural Resources, as its Asian carp czar.Goss described himself as a fisherman who is very concerned about the possible spread of the voracious fish into the Great Lakes. Goss has also served as executive director of the Indiana Wildlife Federation.
In a call with reporters, Goss was noncommittal about whether there should be a permanent separation between the Mississippi River and the Great Lakes, reversing the flow of the Chicago River. He said he’s awaiting the outcome of a study by the Army Corps of Engineers, which is looking at whether such a reversal is feasible.
“I have not reached a conclusion yet,” he said.
Sen. Debbie Stabenow, D-Mich., said she wants to push for a faster time line of that study. “Their timetable is way too slow,” she said of the study, which is not due to be finished until late next year.
Posted by Marcia Oddi on September 8, 2010 12:40 PM
Posted to Environment
Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)
For publication opinions today (2):
In Department of Waterworks v. Community School Corp., So. Hancock, a 21-page, 2-1 opinion (including a colored map on p. 18), Chief Judge Baker writes:
Southern Hancock School Systems (School) is scheduled to open a new intermediate school in August 2011. Pursuant to its plan, the School wants to connect a 2300-foot service pipe from an existing water main to its new facility. The Indianapolis Department of Waterworks (Water Company) denied the School’s request to install a service pipe in lieu of a water main extension because the School’s idea was contrary to the Water Company’s rules and “good engineering practice.” Appellant’s Br. p. 5. This case comes before us following the Indiana Utility Regulatory Commission’s (IURC) determination that the rules do not preclude the School from connecting a service pipe to its new facility from an existing main.In Gregory Carter v. State of Indiana , a 9-page opinion, Judge May writes:
Appellant-respondent Water Company appeals the IURC’s decision in favor of appellee-complainant School, claiming that the IURC’s decision allowing the School to construct its own water service line rather than paying for a water main extension is contrary to law because the new building does not abut an existing main as required by the Water Company’s departmental rules. The Water Company also asserts that the IURC’s factual determinations regarding the economics of the School’s decision to connect to the existing main are not supported by the evidence and that the School failed to refute the Water Company’s engineering plans and water quality analysis. Concluding that the IURC properly determined that the Water Company’s rules do not preclude the School from connecting its new building to an existing water main and finding no other error, we affirm. * * *MATHIAS, J., concurs.
RILEY, J., dissents with opinion. [that concludes] Under the undisputed facts before us, the new intermediate school is constructed on its own parcel within the school corporation’s campus. As far as I can discern, this new construction is not attached to any existing building but is an independent structure at the far end of the campus. Mindful of the rule and its accompanying definitions, the new school should be considered a “premise,” pursuant to Rule 7(J), and thus it would be appropriate to require the School to pay for a new main extension.
Gregory Carter appeals his conviction of Class D felony theft1 and Class B felony robbery resulting in bodily injury.2 He raises three issues for our consideration: 1. Did the trial court abuse its discretion when excluding evidence of Wal-Mart's standard operating procedures for detaining shoplifters? 2. Did some of the prosecutor's comments during voir dire rise to the level of misconduct resulting in fundamental error? 3. Did Carter's convictions of theft and robbery subject him to double jeopardy under the Indiana Constitution? * * *NFP civil opinions today (5):The trial court did not abuse its discretion when excluding certain evidence, and the prosecutor's actions were not misconduct resulting in fundamental error. However, Carter's convictions of theft and robbery based on the same act subjected him to double jeopardy and, accordingly, his conviction of theft must be vacated.
James Ricketts v. First Horizon Home Loans, et al. (NFP)
Robert Egierski v. Caterina M. Sergio (NFP)
Steven Griggs v. Steve Querry (NFP)
Lambert C. Genetos, et al. v. Andrew J. Kopko (NFP)
Joseph M. Sipe v. Laurie L. Sipe (NFP)
NFP criminal opinions today (4):
Jack M. Estes, II v. State of Indiana (NFP)
Timothy P. Treacy v. State of Indiana (NFP)
Michael Powell v. State of Indiana (NFP)
Gerald M. Mitchell v. State of Indiana (NFP)
Posted by Marcia Oddi on September 8, 2010 11:44 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 7th Circuit issues one Indiana ruling today
In Brown v. Automotive Components Holdings (SD Ind., Judge Young), a 15-page opinion, Judge Sykes writes:
Letecia Brown, an assembly-line worker at a Ford Motor Company plant in Indianapolis,was terminated for being absent from work without properly following Ford’s leave policies and procedures. She filed suit for sex discrimination and retaliatory termination under Title VII and interference with her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. The district court dismissed her sex-discrimination claim, and Brown voluntarily dismissed her retaliation claim, leaving only the FMLA claim before the district court. The court initially denied Ford’s motion for summary judgment on this remaining claim, but Ford moved for reconsideration, noting a factual misunderstanding in the court’s summary-judgment decision. The court agreed and reversed itself, entering summary judgment dismissing Brown’s FMLA claim. Brown appealed.We affirm. Brown’s appeal addresses only the FMLA claim, and summary judgment in favor of Ford on that claim was entirely appropriate. The undisputed facts establish that Brown was absent without leave after failing to give proper FMLA notice for an extension of a previously requested leave period. Specifically, under the FMLA rules then in effect, Brown had two working days in which to give Ford notice that she intended to extend her leave, see 29 C.F.R. § 825.303(a) (2007), and she failed to do so. Further, an employer is entitled to adhere to its own leave policies and procedures when doing so does not otherwise violate the FMLA. Ford’s termination of Brown’s employment based on her noncompliance with its internal leave procedures did not violate the FMLA.
Posted by Marcia Oddi on September 8, 2010 11:20 AM
Posted to Ind. (7th Cir.) Decisions
Courts - "Appeals Court in Atlanta Again Rejects Racial Discrimination Claim"
Here are a couple quotes from Adam Liptak's "Sidebar" column in the NY Times of Sept. 6, 2010:
Last month, for the third time and in the face of a 2006 rebuke from the United States Supreme Court, the federal appeals court in Atlanta said there were no racial overtones when a white supervisor called an adult black man “boy.”“The usages were conversational,” the majority explained, repeating what it had told the trial court after the Supreme Court ruled, and “nonracial in context.” Even if “somehow construed as racial,” the unsigned 2-to-1 decision went on, “the comments were ambiguous stray remarks” that were not proof of employment discrimination. * * *
Stephen B. Bright, president of the Southern Center for Human Rights, said the Atlanta appeals court was an outlier among the federal appeals courts, one that is consistently hostile to suits from people claiming racial discrimination.
“There is no such thing as racial discrimination in employment in the 11th Circuit,” Mr. Bright said, adding that the court’s response to the Supreme Court’s ruling in the Hithon case amounted to “outright defiance.”
Posted by Marcia Oddi on September 8, 2010 09:15 AM
Posted to Courts in general
Ind. Decisions - "Appeals court sides with lottery losers, says suit can proceed"
Yesterday's COA decision in Jeff Koehlinger, et al. v. State Lottery Commission of Indiana (ILB summary here, 3rd case) is the subject of a story today by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:
A class-action lawsuit brought by an Auburn man against the Hoosier Lottery can move forward to trial, the Indiana Court of Appeals ruled Tuesday.Jeff Koehlinger of Auburn is one of two plaintiffs suing the state lottery for thousands of dollars he lost playing the Cash Blast game in 2005 and 2006. He spent almost $2,500 on the $10 tickets, while a man from Carmel spent $40,000.
The suit – which has now been certified as a class-action lawsuit – contends the lottery misstated the number and amount of prizes available in the game. The men say they were misled by advertising that made the odds of winning and prizes available seem greater than they were.
The game promised seven grand prizes of $250,000 each, plus several lesser prizes of up to $10,000 each. But the lottery, after selling 5 million tickets, abruptly reduced the number and amount of prizes.
In a statement posted on its website, the Hoosier Lottery acknowledged overstating the prizes.
It said half of the game’s 5 million tickets were “potentially defective” because of a printing error and were replaced, but internal lottery reports did not reflect the changes, resulting in the prizes being overstated.
The odds of winning were not compromised, the lottery said.
A Marion County trial judge dismissed part of the case on behalf of the Hoosier Lottery, saying the players couldn’t seek a contractual claim. But the appellate court reinstated that claim.
“There is ample designated evidence that several class members relied on the misinformation on the lottery’s website when deciding to purchase Cash Blast tickets. It is reasonable to infer that many of these players also suffered prejudice as a result,” the ruling said.
The ruling said numerous people contacted the lottery with questions and concerns about the change in the odds and the lottery didn’t direct them to an administrative remedy.
“Simply put, it seems that the Lottery had no mechanism for addressing player concerns of this type at the time,” the ruling said.
Posted by Marcia Oddi on September 8, 2010 09:07 AM
Posted to Ind. App.Ct. Decisions
Tuesday, September 07, 2010
Ind. Law - More on: New Indpls Bar Ass'n PAC "insulate attorneys from donating directly to Marion County judicial candidates" [Updated]
Re this ILB entry posted earlier this afternoon, a reader asks:
Instead of giving equally to every judge on the ballot, why not give equally to all judges who poll at least 80% on the IBA survey of lawyers? If a judge/candidate is polling in the 50s, I suspect many of the lawyers who contribute to the pac are probably not fans.[Updated 9/8/10]
More comments from readers:
Why is this an improvement? The political parties in Marion County have agreed to avoid any contested races for Superior Court Judgeships by never having elections in which the public has a meaningful voice. The only contested races are in the partisan “slating” process, which are conducted out of the public view and without public scrutiny and accountability. Each party slates candidates for half of the positions and agrees not to run candidates against the other party’s candidates. Then each party runs a “Meet the Judges” fundraiser to shake down the law firms in town. What could possibly be more corrupt? How does it clean up the system to use the Indianapolis Bar Association to run the shake down? It’s not the political donations from lawyers to judicial candidates that is the problem. It is the anti-democratic collusion between the political parties that makes those donations meaningless. We need real elections, not backroom slating deals.Another reader writes:
Why is the IBA PAC paying money to the judges after the primary? Marion County judicial candidates have no race after the primary because any Marion County judicial candidate on the ballot in the general election wins as soon as they get one vote. Judicial candidates have no challengers in the general election under the current system. Also, is it the intention of the PAC to release the names of and donations of donors to the "PAC" to the judicial candidates?
Posted by Marcia Oddi on September 7, 2010 04:37 PM
Posted to Indiana Law
Environment - "One of the state of Ohio's solutions -- transporting future manure to farm fields outside the watershed, including fields in Indiana -- has alarmed some Hoosiers in East Central Indiana."
Updating this August 31 ILB entry headed "We don't need Ohio's environmental problems," this August 30th Muncie Star-Press article by Seth Slabaugh included:
"We have a crisis," Ohio Gov. Ted Strickland said in a letter to the U.S. Environmental Protection Agency. "The economic viability of this region is ultimately linked to the health of this natural resource. We have reached a tipping point where the degraded nature of the lake is causing significant loss to local businesses and the total livelihood of the region." * * *According to this story today in the Richmond Pal-Item:The U.S. Department of Agriculture's Environmental Quality Incentive Program (EQIP) has assisted farmers wanting to transport manure outside of the watershed, the report states.
"However, there are program obstacles when an Ohio farmer makes arrangements for exporting manure to nearby areas in Indiana," the report states. "Therefore, the state ... will request that USDA establish greater flexibility under EQIP cost share to allow for transportation of manure outside of the watershed, including Indiana."
Barbara Sha Cox of Indiana CAFO Watch called the Ohio EPA's recommendation "frightening."
"We must expect IDEM (Indiana Department of Environmental Management) to be very proactive because we have so many CAFOs (Concentrated Animal Feeding Operations) in Indiana that we do not need to take Ohio's manure to clean up their watershed," Cox said. "I don't think we have the proper regulations, and we already have so much manure brought over from Ohio."
Given the location of Grand Lake St. Marys, Cox would expect Ohio to increase manure transportation to Adams, Blackford, Delaware, Henry, Jay, Randolph and Wayne counties in Indiana.
"Manure is a valuable fertilizer if used correctly," Cox said, "but when it becomes a waste product that they're trying to get rid of, that's the problem."
When Indiana CAFO Watch proposed regulations requiring a two-mile manure-application setback around Indiana lakes and reservoirs, "we were laughed out of the Legislature," Cox said. "Now maybe the legislation will have a better chance."
She scoffed at the prospect of Jay County taking more manure from Ohio. Jay County has its own 42 confined feeding operations (CFOs) and 44 CAFOs permitted to house 265,583 swine, 6,600 dairy cattle, 1,351 beef cattle and more than 4.2 million chickens.
IDEM spokesman Barry Sneed noted that manure was not the only source contributing to blue-green algal blooms in Grand Lake St. Marys. Other sources include home septic systems, residential lawn fertilizer and commercial fertilizer applied to corn and soybean fields.
"IDEM has no authority to dictate where the (Ohio) manure can go," Sneed said. "If the manure goes to an Indiana CFO/CAFO, the receiving farm would still have to follow the manure management guidelines in their permit. If the manure goes to a farm that is not a CFO/CAFO, IDEM has no authority to govern it unless it is a threat to human health and the environment."
The state chemist is working on a rule to regulate land application of manure regardless of the source.
Manure application rules have become the province of the Indiana state chemist.And this issue has been pointed out before. See this Feb. 14, 2010 ILB entry, quoting from a story in the FWJG:
While the Indiana Department of Environmental Management is responsible for protecting water quality, the Office of the Indiana State Chemist regulates the storage and use of fertilizers. And last year, legislators passed a law expanding the state chemist authority over fertilizer to include manure, further expanding the state chemist’s responsibility to regulate substances posing environmental threats.The FWJG story was about the State Chemist rejecting a Steuben County effort to protect its lakes from pollution....
Posted by Marcia Oddi on September 7, 2010 03:22 PM
Posted to Environment
Courts - "Barring Hunters From Jury Panel Violates 'Batson,' N.Y. Judge Finds" What about Indiana?
Daniel Wise writes today in the New York Law Journal in a story that begins:
The same U.S. Supreme Court precedent that bars discrimination against potential jurors due to their race, gender or ethnic background can be used to protect the right of hunters to serve on juries, an upstate New York judge has suggested.What about Indiana? IU Law Professor Joel Schumm's response:Sullivan County Judge Frank LaBuda called a halt to the trial of a Long Island hunter charged with assault for shooting another hunter after the defense attorney issued peremptory challenges to six of 35 potential jurors who had identified themselves as hunters.
LaBuda concluded that the challenges amounted to a "systematic exclusion" of hunters that ran afoul of the Supreme Court's 1988 ruling in Batson v. Kentucky, 476 U.S. 79, to which he repeatedly referred in his oral ruling ordering a mistrial in the case.
"I suspect the Indiana Supreme Court would not agree." He cites a 2006 Supreme Court opinion by Justice Boehm, Highler v. State, that begins:"We hold that the use of a peremptory challenge to strike a juror because of the juror’s race, gender or religious affiliation violates the juror’s right to equal protection of the laws. The juror’s affiliation is to be distinguished from religious beliefs that prevent the juror from following the law. The juror’s occupation, to the extent it may indicate a predisposition and is not a pretext, is a permissible ground for a peremptory strike."
Posted by Marcia Oddi on September 7, 2010 03:01 PM
Posted to Courts in general
Ind. Law - New Indpls Bar Ass'n PAC "insulate attorneys from donating directly to Marion County judicial candidates"
So reports Jon Murray in this Indianapolis Star story today. It begins:
Most judges hate asking lawyers who practice in their courts for campaign donations -- just about as much as attorneys feel uncomfortable writing the checks that are a large chunk of contributions."It puts everybody in a bad spot," said Indianapolis attorney Bob Hammerle, a reluctant giver who applauds the creation of a new option meant to insulate attorneys from donating directly to Marion County judicial candidates.
The Indianapolis Bar Association is forming a political action committee that will accept attorneys' voluntary donations. The PAC then will distribute the money equally to all candidates from both parties who qualify for the general election ballot for the Circuit and Superior courts, starting in 2012. * * *
Some judges are embracing the "blind trust" approach, too, and it's attracting notice outside Indiana. But the plan has its critics -- including Marion County's party leaders, who are skeptical the PAC will raise enough to make a difference.
Posted by Marcia Oddi on September 7, 2010 02:56 PM
Posted to Indiana Law
Sports Law - "As NCAA Investigations Increase, Lawyers Find New Opportunities"
Karen Sloan of The National Law Journal has this long and interesting story today. Some samples:
"The process has gotten lawyered-up significantly over the past 10 years," said Gene Marsh, of counsel to Lightfoot, Franklin & White in Birmingham, Ala., and a member of the NCAA's Committee on Infractions for nine years until 2008. "It used to be that sometimes you would see institutions hire outside counsel, but a lot of times the coach would be in there by himself or herself. There are so many more lawyers involved now, and they are showing up earlier than ever in these investigations." * * *According to a number of attorneys in the field, ever higher revenues generated by certain sports teams is driving more universities to hire outside counsel in NCAA enforcement matters. Major infractions and harsh sanctions can cost a university a lot of money -- sportswriters have estimated that USC could lose millions of dollars as a result of sitting out two bowl games. Universities can also lose prestige and alumni support if their sports teams are crippled by NCAA violations and sanctions.
"Schools more and more are using outside counsel, and I think it's because the stakes are higher and higher with TV coverage and other forms of revenue. They're increasing with no end in sight," said Lightfoot Franklin partner William King, who is in the college sports practice with Marsh. The firm represents the University of Michigan in an ongoing inquiry into the number of coaches and off-seasons workouts it held last season.
"The process has become far more complex over the years, and with that has come more counsel," said Michael Glazier, a partner at Syracuse N.Y.-based Bond, Schoeneck & King who started the country's first collegiate sports practice in 1986 with Mike Slive, now the commissioner of the Southeastern Conference. "Back in the 1980s, schools would use local counsel, who would have to get up to speed on the rules. There was no added expertise."
The field is still relatively small. Bond Schoeneck, Lightfoot Franklin and Indianapolis-based Ice Miller are the only firms with formal NCAA practices. A handful of individual attorneys at law firms have built up NCAA expertise but don't have dedicated practices, while in-house university attorneys sometimes handle cases. The practice typically is not seen as a top money generator because universities have fewer financial resources than corporate clients, and legal bills for public universities are public records often reported by the media.
Posted by Marcia Oddi on September 7, 2010 02:47 PM
Posted to General Law Related
Environment - Yet more on: Superfund used to justify $28,000 bill to fight fire at couple's home
Updating yesterday's ILB entry, which quoted the NYT story:
After adopting such programs, some jurisdictions — including Radnor Township, Pa. — later backed off in response to complaints from residents and visitors, news reports and lobbying by the insurance industry. In recent years 10 states have prohibited such collections, according to the property casualty association: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Missouri, Oklahoma, Pennsylvania and Tennessee. But some of those prevent only the police, as opposed to fire departments, from charging fees.and then asked:
(1) Can anyone direct me to the Indiana law referenced above?Attorney Kevin R. Patmore of Santa Claus IN responded this morning:
Concerning the restriction on police service charges, see IC 9-29-11.5-3.It is a 2008 law. Take a look.
Posted by Marcia Oddi on September 7, 2010 02:33 PM
Posted to Environment
Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)
For publication opinions today (5):
In David Hatter, et al. v. Pierce Manufacturing, Inc. , a 26-page opinion, Judge Robb writes:
While working as a Pike Township firefighter, David Hatter was injured when the cap on a fire truck’s rear intake pipe was propelled off the pipe by pressurized air and the cap struck Hatter in the face. Hatter and his wife Kristina brought this products liability action against Pierce Manufacturing, Inc. (“Pierce”), the manufacturer of the fire truck. Following a jury trial and verdict in favor of Pierce, Hatter appeals. Hatter presents for our review the following restated issues: 1) whether the trial court abused its discretion by failing to strike two jurors for cause; 2) whether the trial court abused its discretion in the giving of two jury instructions; 3) whether the trial court abused its discretion by excluding certain evidence; 4) whether the trial court erred by denying Hatter’s motion for judgment on the evidence as to the fault of two non-parties; and 5) whether the trial court erred by dismissing Kristina’s loss of consortium claim as a sanction for a discovery violation. Regarding Hatter’s jury selection issue, we conclude Hatter failed to exhaust one of his peremptory challenges and has failed to show that both of his challenges for cause were improperly denied. Further concluding the trial court did not abuse its discretion in its instruction of the jury or in excluding evidence, and finding no other error, we affirm.In Rod L. Avery, et al. v. Trina Avery , a 7-page opinion, Judge Najam writes:
Rod Avery and Marshall Avery (“the Averys”) appeal from the trial court’s entry of default judgment against them in this will contest initiated by Trina Avery (“Trina”). The Averys present a single issue for our review, namely, whether the trial court erred when it entered default judgment against them for their failure to file an answer to Trina’s verified complaint. We hold that a will contest is a civil action and that a defendant in a will contest is required to file an answer or otherwise plead to a complaint as provided in the trial rules. Accordingly, we affirm the default judgment entered by the trial court. * * *In Jeff Koehlinger, et al. v. State Lottery Commission of Indiana , a 19-page, 2-1 opinion, Judge Bradford writes:Again, a will contest is a freestanding cause of action separate and distinct from the administration of an estate, and the trial rules generally apply to will contests. See Robinson, 587 N.E.2d at 685. We hold that the Averys were required to file a timely answer to Trina’s complaint. They failed to do so. The trial court did not err when it entered default judgment against the Averys.
Appellants/Plaintiffs Jeff Koehlinger and Jeff Frazier, as individuals and as class representatives of all others similarly situated (“Appellants”), appeal from the trial court's grant of summary judgment in favor of Appellee/Defendant the State Lottery Commission of Indiana (“the Lottery”). The Lottery contends that the trial court should have entered summary judgment in its favor on the ground that the Appellants did not exhaust their administrative remedies. Appellants contend that the trial court erred in concluding that the Lottery was entitled to summary judgment on their claims of contract rescission, false advertising, negligence, negligent misrepresentation, unjust enrichment, restitution, and money had and received. Concluding that the trial court erred in granting summary judgment in favor of the Lottery on Appellants' contract claim, we reverse and remand. * * *In Larry Rodts v. Heart City Automotive, Inc. , a 12-page opinion, Judge Najam writes:I. Whether the Trial Court Erred in Failing to Grant the Lottery
Summary Judgment on the Basis that the Plaintiffs had Failed to
Exhaust Their Administrative RemediesBoth sides acknowledge that the Lottery and claims against it are subject to the Administrative Orders and Procedures Act (“AOPA”). The Lottery contends that the Appellants did not exhaust the administrative remedies available to them while the Appellants argue that they should be excused from the exhaustion requirement because no adequate remedy existed at the time their claims became ripe.* * *
The designated evidence contains myriad examples of persons attempting to contact the Lottery regarding the website error, and there is no indication that any of these contacts was successful in initiating any kind of administrative process. Simply put, it seems that the Lottery had no mechanism for addressing player concerns of this type at the time, leaving us in grave doubt as to the availability of an administrative remedy.
Moreover, we cannot agree that the Lottery's losing-ticket redemption program qualifies as an administrative remedy that needed to be exhausted for purposes of AOPA, as it did not exist when the Plaintiffs' claims became ripe. * * *
II. Contract Rescission * * *
If a player can prove to the trial court that he or she relied on the Lottery's misinformation to his or her detriment, that player will be entitled to rescission.
III. DCSA * * *
The trial court properly granted the Lottery summary judgment on Appellant's DCSA claim. * * *
IV. Negligence and Negligent Misrepresentation
Appellants contend that the trial court erred in concluding that the Lottery enjoys immunity under the DCSA. The Lottery contends that it is immune from the DCSA because its advertising activities are required or expressly permitted by state law. * * *
The trial court properly granted summary judgment in favor of the Lottery on Appellants' tort claims.
V. Quasi-Contractual Claims
Finally, Appellants contend that the trial court erred in dismissing its quasi-contractual claims for unjust enrichment, money had and received, and restitution. * * *
The trial court did not err in granting summary judgment in favor of the Lottery on Appellants' quasi-contractual claims.
Conclusion. The trial court correctly refused to grant the Lottery summary judgment on its claim that Appellants had failed to exhaust their administrative remedies. The trial court correctly granted summary judgment in favor of the Lottery on Appellants' tort, DCSA, and quasi-contractual claims. The trial court, however, erred in granting summary judgment in favor of the Lottery on Appellants' contract rescission claim, and we therefore remand for further proceedings not inconsistent with this opinion, up to and including bench trial, if necessary.
MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents with separate opinion. [that begins, on p. 16 of 19] I respectfully disagree with the majority's opinion in the resolution of this case. While I concur with the majority on the denial of the Lottery's claim that Appellants had failed to exhaust their administrative remedies and its decision on Appellants' DCSA and quasi-contractual claims, I concur in result with respect to Appellants' contract rescission claim, and dissent on the majority's handling of Appellants' negligence claim.
Larry Rodts appeals the trial court's grant of summary judgment for Heart City Automotive, Inc. (“Heart City”). Rodts raises the following two issues for our review: 1. Whether his oral contract for employment with Heart City is unenforceable under Indiana's Statute of Frauds.In Gregory Johnson v. State of Indiana , an 8-page opinion, Judge Najam writes:
2. Whether a deferred compensation scheme constituted “wages” under Indiana law.We hold that no genuine issues of material fact precluded the entry of summary judgment for Heart City. Rodts' oral contract is unenforceable and his deferred compensation was not a wage. As such, we affirm the trial court's entry of summary judgment for Heart City.
Gregory Johnson appeals his conviction for Refusal to Identify Self, a Class C misdemeanor, following a bench trial. He presents two issues for our review: 1. Whether the State presented sufficient evidence to support his conviction. 2. Whether his misdemeanor conviction violates Article I, Section 16 of the Indiana Constitution. We affirm. * * *NFP civil opinions today (5):In essence, Johnson asks that we create an exception to the statute where a defendant has a reasonable fear for his safety which prevents his compliance. Further, Johnson contends that because the Beech Grove police officer ultimately retrieved his driver’s license from the cab of his truck, he did, in fact, comply with the statute. We cannot agree. * * *
Here, Officer Payne asked Johnson to provide his driver’s license, which was in his possession, at least four times, and Johnson refused each request. Johnson did not ever “physically hand over” his driver’s license. See id. Instead, only after his arrest did Johnson instruct the Beech Grove officer where to find his driver’s license. We hold that the State presented sufficient evidence to support his conviction. To the extent that Johnson contends that his fear for his safety prevented him from complying with the statute, Johnson asks us to reweigh the evidence and to create an exception to the statute, which we will not do.
Umarex Sportwaffen GMBH, et al. v. Toyriffic, LLC (NFP)
Mark Hendrickson, et al. v. Joseph Potetz, et al. (NFP)
James D. Schregardus, et al. v. OH Retail, LL, LLC (NFP)
Salaheddin A. Alfaqeer v. LOR Corporation (NFP)
Term. of Parent-Child Rel. of D.M., A.M. v. I.D.C.S. (NFP)
NFP criminal opinions today (5):
Haneef S. Jackson-Bey v. State of Indiana (NFP)
Theodore Ebeyer v. State of Indiana (NFP)
Phillip J. Camp v. State of Indiana (NFP)
Dewan D. Burnett v. State of Indiana (NFP)
John Chupp v. State of Indiana (NFP)
Posted by Marcia Oddi on September 7, 2010 01:09 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Transfer list for week ending September 3, 2010
Here is the Clerk's transfer list for the week ending September 3, 2010. It is one page (and 21 cases) long.
Three transfers were granted last week. Two were granted with opinion:
- Lamar Advertising, Inc., et al. v. View Outdoor Advertising on 8/30/10 - see ILB entry here.
- Mitchell Roob v. Jannis Fisher, also on 8/30/10 - see ILB entry here.
- State of Indiana, Ex Rel., et al. v. Aisin USA Mfg., Inc., an April 27, 2010 opinion, is summarized in this ILB entry. The issue is whether the tax court, rather than the Jackson Superior Court, had exclusive jurisdiction over the subject matter of the State's claims.
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Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the April 16, 2010 list.
Over 6.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on September 7, 2010 12:37 PM
Posted to Indiana Transfer Lists
Ind. Decisions - "Court backs wind turbine: Case could set precedent in state, nation"
The COA August 31st ruling in the case of Timothy Hamby, et al. v. Board of Zoning Appeals (see ILB summary here) is the subject of this story reported by Mark Wilson, dated Sept. 6, 2010, in the Evansville Courier & Press. Some quotes:
The Indiana Court of Appeals has published a potentially precedent-setting decision upholding a Warrick County resident's right to build a wind turbine on his property. The three-judge panel unanimously affirmed an earlier decision by Warrick Superior Court Judge Keith Meier.In its ruling, the state appeals court said not allowing wind turbines in a residential area would prevent property owners from benefiting from public policies encouraging alternative energy development.
The ruling is significant because as a published opinion, rather than just a case-specific memorandum, it can be cited by attorneys arguing similar cases in other communities, said Morrie Doll, attorney for the Warrick County Board of Zoning Appeals. He said it could set precedent not only in Indiana but nationally.
"You can count on two hands all of the cases in the country dealing with this," he said.
Attorney Les Shively, representing objecting neighbors, said the court did not address a portion of Meier's decision holding David Johnson to a limit of 40 feet for the wind turbine, effectively addressing the neighbors' concern.
But he said the homeowners would likely ask the appeals court for a rehearing and could also ask the Indiana Supreme Court to consider it.* * *
The question under consideration was whether such a wind turbine — which would generate electricity for household use — could be considered an appropriate accessory structure to a residential property and not an entirely separate structure that should be considered separately under the zoning ordinance.
In 2008, neighbors in the Huntington Creek Subdivision near Newburgh objected when Johnson sought a variance from the county's Board of Zoning Appeals to build a 60-foot high wind turbine, which would be 20 feet taller than the maximum height allowed in the county's zoning classification for single-family dwellings. He sought the variance so the turbine high would stand above trees in the area.
At the time, the question was not whether the turbine was permitted, Doll said, but whether the height variance was appropriate.
But in challenging the wind turbine, the residents objecting to it argued not only against the height variance but also as to whether it was allowable under the wording used in the zoning ordinance.
The ruling hinged on interpreting phrasing in the county's zoning ordinance saying that such accessory structures should be "customary in connection with" the principal building or use of the property. However, the ordinance does not define what is considered an accessory or what customary means.
Posted by Marcia Oddi on September 7, 2010 08:19 AM
Posted to Ind. App.Ct. Decisions
Monday, September 06, 2010
Courts - "Jefferson County court-video failures cause trials, hearings to be lost"
The ISBA Appellate Section held a CLE on Oct. 28, 2008 titled "Welcome to the 21st Century: An Appellate Perspective." One session was on the impact of digital records on appellate review. The Honorable Sara Walters Combs, Chief Judge of the Kentucky Court of Appeals, made a presentation on the Kentucky record on review. The records on appeal in Kentucky included "everything filed with the clerk of the trial court, together with the official (at that time) videotape recordings." Unless otherwise ordered by the court, no transcript of court proceedings was to be made a part of the record on appeal.
Apparently some of the Kentucky trial courts have now moved to CD/DVDs (digital video recordings), rather than videotapes. Jason Riley of the Louisville Courier Journal reported Sept. 3, 2010 in a long story:
Nearly three months after defense attorneys and prosecutors held a suppression hearing in the Cecil New murder case, they had to do the whole thing all over again recently — calling in the same detective, asking her the same questions and spending more than an hour re-creating the record.The ILB has had a number of entries on missing or unfinished court transcripts. Start here for those. But nothing like the Kentucky failure.The reason?
Jefferson Circuit Court's digital audio recording equipment failed to properly record the first hearing in Judge Judith McDonald-Burkman's courtroom, capturing video, but no sound.
In fact, the Jefferson Audio Video System, or JAVS, has failed to record audio in several courtrooms, meaning dozens, and perhaps hundreds, of hearings have been silently recorded, with no way for attorneys, defendants or victims to review exactly what was said.
In McDonald-Burkman's courtroom, the audio went unrecorded for more than two weeks in May without anyone knowing.
In Judge Charles Cunningham's courtroom, about a month of proceedings were recorded without audio last fall, and is being cited as grounds for an appeal of a jury conviction in an assault and unlawful imprisonment trial.
In another instance, Judge Susan Schultz Gibson declared a mistrial in a 2008 robbery case when she learned the audio of the testimony had not been recorded.
And Judge James Shake said he faced a possible retrial after an entire criminal trial was lost in the last year.
“It's ridiculous,” Shake said. “The record is crucial. It's the most crucial aspect of what we do.”
Some judges are fuming about the many problems with the digital system.
“This is a nightmare,” McDonald-Burkman said during a hearing after the testimony was lost in the high-profile New case, in which the defendant is accused of killing 4-year-old César Ivan Aguilar-Cano. “… It's been an issue with every court.”
Despite the judges' frustration, the Administrative Office of the Courts, which runs Kentucky's court systems, said recently that it did not know of any recording problems in Jefferson Circuit Court, other than the New case.
Another issue, discussed at the end of this April 22, 2007 ILB entry and this April 3, 2007 entry, looked at "Can a digital CD take the place of a trial transcript? Can a "transcriptionist" take the place of a court reporter?"
Posted by Marcia Oddi on September 6, 2010 03:22 PM
Posted to Courts in general
Environment - Still more on: Superfund used to justify $28,000 bill to fight fire at couple's home
Remember this ILB entry from March 23, 2010? The ILB may have missed some more recent news on the issues raised in the entry, but was reminded of the problems when reading this lengthy Sept. 3, 2010 NY Times story by Christopher Jensen. Some quotes:
In 2008, the city’s [Salina, Kan.] fire department received permission to start billing people involved in accidents to help cover costs, said Mayor Aaron Peck.ILB: (1) Can anyone direct me to the Indiana law referenced above? (2) There is nothing in the NYT story equivalent to the $28,000 billed by the fire department to a New Castle family that lost their home to fire (reported by 6News in February) . I've not seen an update on this story.In about two years the department has sent out bills for 63 accidents, averaging about $390 each. He said the city sent about $10,000 a year in bills and received payments amounting to about half that much. The rest of the money is lost to the city because some people refuse to pay and some of the money goes to a billing agency.
The billing services make money by taking a portion of the funds they collect. “The average is 10 percent, and if they don’t get paid, we don’t get paid,” said Ms. Moore of Cost Recovery.
Rick Benner, chief financial officer for Fire Recovery, said that for his company about 20 percent would be “a fair representation.”
Billing agencies like these have made it easier for fire departments to charge for services, and that has the effect of encouraging more departments to send bills to motorists involved in crashes, said Mr. Johnson of the fire chiefs’ association.
The insurance industry argues that billing companies trying to drum up new business are a main reason the practice has been spreading.
But Mr. Benner says Fire Recovery is simply trying to help departments avoid service cuts.
Typically, departments send billing firms copies of accident reports and information on how many people and how much equipment responded. On average, the bill is about $200 for police and $600 to $800 for fire departments, Ms. Moore said. * * *
After adopting such programs, some jurisdictions — including Radnor Township, Pa. — later backed off in response to complaints from residents and visitors, news reports and lobbying by the insurance industry. In recent years 10 states have prohibited such collections, according to the property casualty association: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Missouri, Oklahoma, Pennsylvania and Tennessee. But some of those prevent only the police, as opposed to fire departments, from charging fees.
Posted by Marcia Oddi on September 6, 2010 02:52 PM
Posted to Environment
Environment - "Unsolved Coal Ash Problem" [Updated]
Here is an editorial from the Sept. 5, 2010 NY Times - a quote:
Last Monday, the E.P.A. held the first in a series of regional hearings on two quite different proposals governing how coal-fired power plants dispose of waste.[Updated 9/8/10] "New coal ash rules could affect Gibson Generating Station" is the headline of a long story by Bill Staub in the Evansville Courier & Press.One proposal, favored by public-interest groups and by agency scientists, would replace a patchwork of uneven — and in many cases weak — state regulations with new national standards. It would formally designate coal ash as a hazardous waste under federal law, require industry to phase out porous sludge ponds, replace them with sturdy, leak-proof facilities, and take other protective steps.
The competing proposal would establish federal guidelines for disposal but leave enforcement to the states. It would also preserve coal ash’s status as a nonhazardous substance. Though the proposal barely improves on the status quo, the Office of Management and Budget — after heavy lobbying by the coal industry — agreed to give it equal billing in the public hearings.
Posted by Marcia Oddi on September 6, 2010 02:49 PM
Posted to Environment
Ind. Decisions - "Union ordered to pay taxes on banquet hall"
6787 Steelworkers Hall, Inc. v. John R. Scott, Assessor of Porter County, a decision issued by the Indiana Tax Court on Sept. 2, 2010 (ILB summary here), is the subject of a story in the Sept. 4th Gary Post-Tribune, reported by Teresa Auch Schultz. Some quotes:
A United Steelworkers local lost its property tax appeal and will have to pay taxes on its banquet hall, according to a state ruling.The Indiana Tax Court said in its order that Local 6787 had not proven that the facility, which is connected to its union hall at 1100 Indiana 149, was mainly used for educational and charitable reasons.
The banquet hall was finished in 2005, several years after the main union hall was completed. The union had asked that the entire property -- valued at $3.5 million -- be tax exempt and Porter County granted most of the request.
It kept the banquet hall out of the agreement, though, signaling that the union would still have to pay property taxes for that building.
According to the Tax Court order, officials with the union argued that although they rented the banquet hall for weddings and other events, they also used it for Ivy Tech Community College cooking classes for union members and let other not-for-profit groups use it for free.
Posted by Marcia Oddi on September 6, 2010 01:01 PM
Posted to Ind. Tax Ct. Decisions
Ind. Law - "New law costing county police: Sheriffs, lawmakers disagree on correct interpretation"
That is the headline to this story today by Erin Blasko of the South Bend Tribune. Some quotes:
Between January and July of this year, the St. Joseph County Police Department paid about $100,000 to local hospitals based on the questionable interpretation of a state law regarding medical care for people detained in the county and suspected of a crime.Here is the legislation at issue, HEA 1182 (PL 80) from the 2009 session of the General Assembly.Public Law 80, enacted July 1, 2009, establishes rates at which counties in the state must reimburse health care providers for services provided to "a person who is subject to lawful detention by a county sheriff."
According to Assistant Chief Bill Redman, county attorney Pete Agostino has interpreted that phrase — "subject to lawful detention by a county sheriff" — to mean all people detained in the county and suspected of a crime, regardless of the agency involved.
Agostino explained: "There is a different statute in the state that obligates the sheriff to take into detention subjects detained by other agencies ... so if you read that in conjunction with the language in (Public Law 80), in my opinion, it doesn't seem to be referring only to subjects arrested by the sheriff."
As a result, for the past 20 months, whenever a police agency in the county — South Bend, Mishawaka, Roseland, etc. — detains a person who needs medical care but cannot pay, the county police department picks up the tab as prescribed under the law — either 104 percent of the Medicare reimbursement rate or 65 percent of cost. * * *
But not everyone agrees on the correct interpretation of the law, and even its author, state Rep. Sandy Blanton, D-Orange County, admits the language in it is not entirely clear with regard to the definition of "lawful detention."
"The intent was to save taxpayers money," Blanton said, explaining the reimbursement rates laid out in the law represent a savings for most county police departments. "However, it's my understanding that some counties have interpreted 'lawful detention' as picked up (by police), and some have interpreted it as booked into a facility."
Similarly, state Sen. Jim Arnold, D-LaPorte, said, "I suppose different people interpret it (the law) differently, but I can say that when the law was conceived, it was meant to reduce sheriffs' costs." A former LaPorte County sheriff, Arnold co-sponsored the law.
Blanton said she is considering proposing an amendment to the law during the upcoming January session "to tweak the language and make it a little more clear."
Posted by Marcia Oddi on September 6, 2010 12:46 PM
Posted to Indiana Law
Ind. Law - Obituary of attorney Rabb Emison, 85, of Vincennes
From the Sept. 5, 2010 Indianapolis Star, the obituary of Rabb Emison 85 of Vincennes, Indiana.
Posted by Marcia Oddi on September 6, 2010 12:42 PM
Posted to Indiana Law
Courts - "Florida has set up foreclosure-only courts to reduce a huge backlog, but borrowers’ lawyers are critical of the process"
Although about Florida, this long NY Times article reported by Gretcheen Morgenson and Geraldine Fabrikant recounts the various horrors of the legal process, judges' errors, paperwork failures, and the like, many of which are likely occurring everywhere.
Posted by Marcia Oddi on September 6, 2010 12:37 PM
Posted to Courts in general
Ind. Law - More on "Democratic nominee for Lake County assessor soon may learn the outcome of a state investigation into whether she violated state law by holding driver's licenses in both Indiana and Michigan"
Updating this ILB entry from June 6, 2010, the Gary Post-Tribune published an opinion piece on Sept. 5th that began:
Lake County assessor candidate Carol Ann Seaton has run afoul of bureau of motor vehicle regulations in Indiana and Michigan. She held driver's licenses in both states simultaneously, something that isn't allowed. In Indiana, she gave her address as being in the 2300 block of Adams Street, Gary, while in Michigan she gave her address as a Union Pier rental house owned by a Chicago couple. Her Ford sedan has Michigan plates tied to the same address. Michigan has revoked her driver's license.Now the Indiana Bureau of Motor Vehicles wants her to prove she's an Indiana resident. It has suspended her driving privileges for a year, a ruling she plans to appeal.
Posted by Marcia Oddi on September 6, 2010 12:23 PM
Posted to Indiana Law
Ind. Courts - "State orders disbarred attorney to pay its costs"
Updating this list of earlier ILB entries, Jeff Parrott of the South Bend Tribune reported Sept. 5th - here are some quotes from the long story:
The Indiana Supreme Court has ordered a disbarred South Bend attorney to repay the state more than $17,000 it spent to investigate misconduct charges against him.Rod Sniadecki must reimburse the state for more than $12,000 it paid a hearing officer and court reporter who worked on the case, according to court records filed this week. He also must pay nearly $5,000 it cost the Supreme Court's Attorney Disciplinary Commission to investigate and prosecute the case.
The Supreme Court in April disbarred Sniadecki for attorney misconduct. * * *
[M]any of his former clients say he still owes them money they paid for services he never delivered.
About 80 people have inquired about receiving payments from the Indiana State Bar Association's Client's Financial Assistance Fund, and 25 of them have followed through with applications, said ISBA spokeswoman Carissa Long. The fund is composed of money that member lawyers pay as part of their annual dues.
"This is not a government program, but rather, just a bunch of lawyers doing the right thing," said Long, noting that Sniadecki was not an ISBA member. "There is no claim of right to money."
The 25 applications thus far is a record-high for the fund, Long said. Because the fund's rules say no more than $50,000 can be paid out to all clients of a particular attorney, the fund's board has decided to wait until Sept. 30 to start reviewing the claims.
Those 25 people, combined, already have claimed to be owed more than the $50,000 maximum, Long said.
"We know there are more people out there," Long said. "In order for us to evenly distribute this money, we have to know exactly how many claims we have."
Long noted that if many more applications come in, the Sept. 30 deadline might be extended.
Posted by Marcia Oddi on September 6, 2010 12:16 PM
Posted to Indiana Courts
