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Sunday, February 29, 2004

Law - Justice Blackmun's papers available this week

From the LA Times, this story:

The ghost of Supreme Court Justice Harry A. Blackmun will be back in the news this week, five years after his death and more than 30 years after he wrote the momentous and still-disputed Roe vs. Wade opinion that legalized abortion. * * * On Thursday, the anniversary of his death, the Library of Congress will open Blackmun's papers to the public — all 1,576 boxes full.
And this interesting note:
Some historians said they were troubled that Blackmun's law clerks gave advance access to the documents to Linda Greenhouse of the New York Times and Nina Totenberg of National Public Radio. They were given two months of advance access to the files, and their reports will begin Thursday.

Harold Koh, a Yale law professor and a former Blackmun clerk, arranged the deal with the two reporters with the permission of Sally Blackmun, the justice's daughter. Koh also gave the "News Hour with Jim Lehrer" advance right to broadcast oral-history interviews with Blackmun conducted by Koh.

Posted by Marcia Oddi on Sunday, February 29, 2004
Posted to General Law Related

Saturday, February 28, 2004

Environment - Consultant to the oil industry predicts demand for oil will fall

A long and fascinating feature was published on the front page of the NY Times business section today about Amory B. Lovins, the man who, according to the Times:

first gained notoriety in the mid-1970's for predicting that nuclear power was doomed because of the steadily rising cost of building new plants. He warned a disbelieving Wall Street and the utility industry that it would be financially reckless to invest in large new power plants of any sort because investments in energy efficiency, or "negawatts," as he called them, would almost always be cheaper than new megawatts.

His reputation was forged in an article in Foreign Affairs in 1976, when he argued for a soft path emphasizing energy efficiency over what he called the hard path based on expectations that the nation had no choice but to build thousands of large new power plants to meet its energy needs. * * *

Long before other experts worried about such things, Mr. Lovins also described the nation's reliance on big power plants and a nationwide electric grid as a brittle power structure vulnerable to terrorism and extensive blackouts.

Although harshly criticized at the time by the utility industry, his projections proved more prescient than the conventional ones. These days, energy industry executives who have never heard of Mr. Lovins are probably as rare as theologians who have never picked up a Bible. Mr. Lovins and the institute are also widely known in architecture and engineering circles as advocates of "green design."

Here are two articles Lovins published in The American Prospect in 2002: "Mobilizing Energy Solutions," and "Energy Forever."

Posted by Marcia Oddi on Saturday, February 28, 2004
Posted to Environmental Issues

Indiana Law - Star Opines that Officials Should be Present to Vote

This strong editorial today in the Indianapolis Star begins: "Our position is: There is no substitute for public officials being physically present at meetings where they cast a vote." More:

In this era of broadband, high-definition, surround-sound communication, technology exists to allow a public official to see and be seen, hear or be heard from the confines of home or the green on the seventh hole of the golf course. Simply because such capability exists, however, does not mean it should be employed.

More than a decade ago, Congress considered allowing members of the U.S. House of Representatives to engage in remote voting in some instances. Former House Speaker Tom Foley, D-Wash., objected. "The very word 'Congress' means coming together," he argued. "We have modern electronic technology that can video conference, that can probably set up security procedures that would correctly and relatively carefully identify a member from wherever he is in the world, not only in his home district. But to create that kind of fractionated membership that never has the opportunity, except in these electronic voting processes or in some kind of brief electronic conference, to come together to meet, to talk, to debate, to interact, to persuade -- that is the whole idea of the legislative body."

The same is true for any public body, from a local school board to the General Assembly. Virtual representation is not the real thing. And it shouldn't be accepted as such. The General Assembly needs to head off this trend -- in its own operations and for all public bodies in Indiana.

Posted by Marcia Oddi on Saturday, February 28, 2004
Posted to Indiana Law

Law - Copy of Court's Ruling Dismissing Most Serious Charge in Martha Stewart Case

"Judge Throws Out Fraud Charge" is the headline to this story today in the Washington Post. Here is the lead:

NEW YORK, Feb. 27 -- A federal judge threw out the most serious criminal charge against Martha Stewart on Friday, raising the possibility that the multimillionaire businesswoman could avoid federal prison even if a jury convicts her on all the remaining charges.
Here is Judge Cedarbaum's ruling, via Findlaw.com.

Posted by Marcia Oddi on Saturday, February 28, 2004
Posted to General Law Related

Friday, February 27, 2004

Indiana Decisions - Ten Court of Appeals Opinions Posted Today

Tina Messer v. Cerestar USA, et al. (2/27/04 IndCtApp) [Torts; Estates & Trusts]

Provident Bank v. Tri-County Asphalt (2/27/04 IndCtApp) [Property, Real Estate; UCC, Banking]
Baker, Judge; Brook, CJ, concurs

"This case presents an issue of priority between the lien of a mortgage on real estate with a residence thereon and a mechanic’s lien for the value of a driveway constructed on the property after the mortgage had been recorded." The opinion includes a lengthy dissent of Judge Sharpnack.

Lindsey Clark v. Brandon Taylor (2/27/04 IndCtApp) [Family Law]

Jelani Merritt v. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

Jelani Merritt (“Merritt”) was convicted of possession of marijuana, a Class A misdemeanor. * * * Merritt raises two issues, which we consolidate and restate as whether the trial court erred in admitting evidence of the marijuana because the underlying traffic stop for improper display of a license plate was unlawful. * * * In conclusion, the placement of Merritt’s license plate complied with Indiana Code Section 9-18-2-6. Thus, Officer Andrew’s traffic stop, based upon a violation of that section, was invalid, and the subsequent discovery of marijuana was improper; therefore the trial court abused its discretion in admitting the marijuana. Accordingly, we reverse Merritt’s conviction for possession of marijuana.
Chester Borsuk v. Town of St. John (2/27/04 IndCtApp - Opinion on reh.) [Civil procedure]

Marianne R. Arms v. Larrabee L. Arms
(2/27/04 IndCtApp) [Family Law]

Andrew J. Scott. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]

Willie J. Jackson v. Timothy A. Jones, et al. (2/27/04 IndCtApp) [Insurance]
Kirsch, Judge

The issue: "Jackson, who was injured by an uninsured motorist while operating a government-owned vehicle in the course of his employment, raises one issue which we restate as: whether the exclusions in the uninsured and underinsured portions of his personal automobile coverage which prohibit recovery when the vehicle is owned by another but provided for the regular use of the insured are against public policy."

Jackson does not contend that his Farmers’ policy is ambiguous or that it does not explicitly exclude uninsured or underinsured coverage under the facts here. Rather he contends that the exclusion in the uninsured and underinsured section, even though it is comparable to that found in the liability section, is void because it is against public policy to exclude public safety officers from coverage under their personal insurance policies, even while on duty, because the government entity who owns and thus insures the vehicle is not required to provide uninsured or underinsured motorist coverage. Jackson contends that because the statute, IC 27-7-5-2, does not provide for exceptions, government vehicles cannot be excluded from coverage by personal insurance policies. Because government entities are self-insured and therefore exempted by the Tort Claims Act from being required to carry uninsured motorist coverage, such exclusion would leave him and other government employees without the uninsured motorist coverage provided for by law. He argues that because the legislature did not specifically provide for the exception, such exception should not be allowed . * * *

Our supreme court has stated that “we may even agree that public policy favors a requirement that self-insurers under the financial responsibility law should be required to provide some sort of uninsured motorist protection for those who drive their [vehicles], it is not our role to sit as a judicial legislator and write such a requirement into the act.” City of Gary, 612 N.E.2d at 119. Since no legislative action has been taken on this issue, it is clearly the intent of the legislature to allow government entities to be self-insured for liability and not insured for uninsured or underinsured claims. More recently, our supreme court wrote that “public policy is a matter for the General Assembly subject only to constitutional limitations on legislative authority.” Murray v. Conseco, Inc., 795 N.E.2d 454, 457 (Ind. 2003). Jackson’s Farmers’ policy is neither ambiguous nor contrary to statute. Our legislature has not revised either statute to make the exceptions in either the governmental entity’s lack of uninsured or underinsured protection or the exceptions in Jackson’s Farmers’ policy against public policy. Affirmed.

Lawrence Thomas v. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

"Thomas raises five issues, the following one of which we find dispositive: Whether he received ineffective assistance of trial counsel when counsel failed to object to a jury instruction on felony murder, which did not delineate the elements of the underlying felony, i.e., dealing in cocaine." Reversed and remanded.

Jason Edwards v. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Friday, February 27, 2004
Posted to Indiana Decisions

Law - More on Legal Issues re Gay Marriage and Civil Unions

"Legal Confusion Over Gay Marriage: Who Is, and Who Isn't, Wed Is Subject of Great Debate" is the title of this analysis piece today in the Washington Post. Some quotes:

[B]y the late 1960s, the U.S. Supreme Court had struck down bans on interracial marriage and required states to recognize divorce decrees across state lines. Evan Wolfson, a lawyer and leading advocate of marriage rights for same-sex couples, said that this is simple pragmatism.

"You don't want couples to wonder whether they're married or not as they cross a border," he said. "We don't want kids to wonder whether their parents are still married when they go on vacation. And we don't want businesses and banks to wonder whether their contracts are still good depending on whether customers have crossed a border."

It is his belief -- and that of many of those who oppose same-sex marriage -- that, given time, the same thing would happen with same-sex marriage, if only because it is more convenient. States continue to differ over the opposite-sex marriages they will perform. Some states require parental consent to a later age than others. Some states permit cousins to marry. But states find it is simply easier to honor marriages from other jurisdictions, even if they would not have licensed them. * * *

Already it is clear that some jurisdictions and some companies will recognize these unions, and each time this happens, the marriage gains a bit more legal weight. Marriage can become an element of a mortgage contract or tax return or insurance policy or will, for example. The more a marriage is recognized in these ways, the harder it is to undo neatly -- which is one reason getting divorced is more complicated than getting married.

Lawyers and government agents nationwide are waking up to the many facets of the legal issue. "Fascinating," said Mark Niles, a professor of administrative law at American University's Washington College of Law. "Think about how many times during a week or a year your marriage is relevant. There's tax returns. Insurance." * * *

"This will take time" to sort out, Wolfson said. "Some states are moving toward equality while others will resist." For now, marriage is "a patchwork. . . . There are at least 5,000 married same-sex couples in the United States today. Others are soon to come. This has already happened."

This story from last Sunday's NY Times is headlined "With Albany Mum on Same-Sex Marriage, New York Gay Advocates Look to Courts." Some quotes:
Advocates and lawyers said they were waiting for cases to emerge that may force the courts to address the constitutionality of New York's domestic-relations law, which has historically been interpreted to accept only marriages by those of the opposite sex.

At the same time, they are also looking for cases to better establish the rights of partners in same-sex relationships - primarily by testing the state's recognition of same-sex marriages performed out of state.

As such, advocates and legal experts say, they expect the issue of same-sex marriage to play out in New York in much the same way it has in Massachusetts, before panels of judges.

"I think that what will happen, more quickly than the Legislature acting is that people will return from other jurisdictions and seek to have some level of governmental recognition, based on being married elsewhere, and that that will precipitate a court review,'' said Assemblywoman Deborah J. Glick, a Democrat from Manhattan who is the Legislature's only openly lesbian lawmaker.

This lengthy story from last Sunday's LA Times focuses on the legal strategies being followed by opponents and proponents. A quote:
Opponents of gay marriage have tried to keep the legal debate to a simple argument: State law does not allow same-sex weddings, and San Francisco has no right to bypass that law. They want an immediate court order blocking more marriages, but judges have put off a hearing on the issue until March 29.

"Here is my frustration," said Benjamin W. Bull, chief counsel of the Alliance Defense Fund, which defends traditional religious rights. "Clearly the city's strategy is to have tens of thousands of these same-gender licenses issued so, by the time a court rules on this, it may be more of a nightmare to revoke the licenses than it will be to validate them…. Wittingly or unwittingly, the Superior Court is playing into the city's hands."

Bull said his side planned to take depositions of psychologists, sociologists and family counselors "saying that children are better off in opposite-sex relationships."

Gay rights advocates hope to get judges to focus on a different issue — whether laws, including Proposition 22, forbidding same-sex marriages violate the California Constitution's ban on discrimination. Each of the five test couples was chosen to illuminate a different aspect of that argument.

This legal analysis, "The New Jersey Domestic Partnership Law: Its Formal Recognition of Same-Sex Couples, and How It Differs From Other States' Approaches," by Joanna Grossman, appeared in Findlaw.com last month. It has a very good section comparing and contrasting different states' approaches to recognizing same sex unions, which is introduced with this question:
Where does the New Jersey law fall on the spectrum among the five states that have so far formally recognized same-sex couples--Massachusetts, Vermont, California, Hawaii, and, now, New Jersey? In my view, New Jersey is roughly in the middle, when one looks to the wide or narrow scope of the various state laws.
[Update 2/28/04] Several related Grossman articles are available here via Findlaw.com:

Posted by Marcia Oddi on Friday, February 27, 2004
Posted to General Law Related

Indiana Decisions - Transfer list for week ending Feb. 27, 2004

Here is the Indiana Supreme Court's transfer list for the week ending Feb. 27, 2004.

For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column, or click here.

Posted by Marcia Oddi on Friday, February 27, 2004
Posted to Indiana Transfer Lists

Law - More on Electronic Documents

The ABA Law Management Practice Section's January 2004 issue of Law Practice Today is full of interesting articles on the digital law office and electronic documents. This one, titled "'May I Have My Electronic Discovery in Paper Please?' Lawyers Inch Their Way Toward a Paperless Practice," concludes:

The use of templates, macros, document and case management programs, electronic time and billing systems, online legal research, area specific software of all kinds, etc. has made the actual practice of law much, much faster. Simply finding things electronically is much easier than hunting down files and particular pieces of paper within them, especially if they are archived offsite. When a client calls looking for case status, popping the case up on your monitor is infinitely faster than shuffling through files, especially since the file is rarely conveniently on your desk. Collaboration with colleagues is a snap compared with the old days of passing paper back and forth, annotating one another’s drafts. Most of all, the ability to work remotely by having an electronic connection to your e-mail and documents while on the road has transformed the profession of law into a law office without walls.

Though the legal profession is still creeping toward becoming paperless, the trend and inevitability are slowly being accepted by most attorneys, however, grudgingly. It may not be the future they wanted, but it is the future that has become inexorable. As Yogi Berra once noted in his inimitable fashion: “The future ain’t what it used to be.”

[Link via Ernie the Attorney]

Posted by Marcia Oddi on Friday, February 27, 2004
Posted to General Law Related

Law - NY Expanding Public Access to Court Documents

An AP story yesterday reports that the New York State "Office of Court Administration said Wednesday it will begin posting briefs and other court documents on the Web, agreeing with a commission that the Internet provides a dramatic opportunity to expand public access to the courts. The state will also expand the posting of decisions, court calendars and docket information statewide. That information is currently available only in some New York court jurisdictions." More:

Chief Judge Judith Kaye, who appointed the commission chaired by First Amendment lawyer Floyd Abrams in April 2002, said paper records are becoming "obsolete" in society and electronic transmittal of information the norm.

All court records considered open to public inspection in paper form -- typically in the clerks' offices at various courts -- will eventually be posted on the Internet, Chief Administrative Judge Jonathan Lippman said.

However, the records will not contain Social Security numbers, financial account numbers, names of minor children and birth dates to protect the privacy of individuals and ward off identity thieves.

Records in both criminal and civil cases will eventually be posted on the Internet. Records in Family Court, matrimonial actions and other matters where papers are sealed will not be posted.

Here is the current site of the Court of Appeals, New York State's highest court.A NY Times story reports:
he New York State court system announced yesterday that it planned to begin making criminal and civil legal records available on the Internet, leaping ahead of many other states and government agencies. The project, which will be phased in over five years, includes some limitations set to protect individual rights to privacy. * * *

But briefs, criminal complaints, lawsuits and anything else that already is considered public information will be fair game, making the new policy a step beyond what has become commonplace in court systems, like the online publishing of schedules, calendars, news releases and judicial decisions, something even the New York courts do now. * * *

"This will play a significant role in making the courts comprehensible to the public," said Jonathan Lippman, the state's chief administrative judge. "We are one of the few states doing this on the individual case record basis. It's consistent with what we feel should be the openness of the courts."

Judge Lippman said the new policy most closely resembled the electronic availability of state court records in Colorado. (Its online court records have been updated daily since 2000, said Linda Bowers, the court's public access manager. She said the experience had been positive.)

Judge Lippman continued: "While the records are open now, remember they're sitting in basements in courthouses with dust all over them, and you have to go to the court and find them. That's very different from the openness and accessibility you have in the modern technological age."

Newsday reported yesterday, here:
New York joins a handful of states including Colorado, Delaware, Indiana, New Mexico and North Carolina that have pledged to develop universal procedures for posting court documents on the Web. A spokeswoman for the New York State Unified Court System said it would take up to five years to bring all courts online but a pilot program will start soon.
What about Indiana? Indiana's proposed amendment to Administrative Rule 9 may be accessed here. In an entry dated 11/17/03 [on the old site], The Indiana Law Blog discussed access to court records in Indiana and quoted from an Indiana Supreme Court release dated 11/15/03, titled "Supreme Court Proposes New Access Rule for Court Records." It read in part:
A new Supreme Court rule on public access to court records is needed to respond to the growing use of electronic record keeping in the state's court system, Associate Justice Brent Dickson announced today. Justice Dickson chaired a Task Force that included judges, news media members court clerks and representatives of various other interested organizations that focused the changing nature of the way information is stored in today's increasingly technological society.

"Our task force believes the proposed rule reflects the proper balance between the rights of privacy and the public's right, and ability, to access public court records. It is the result of a many hours of frank discussions and much hard work by our task force. I truly value their dedication," said Justice Dickson.

The proposed rule is a complete rewrite of current Indiana Supreme Court Administrative Rule 9. The goal of the task force was to comprehensively address the issues of public access and privacy in court records that are likely to be maintained and distributed in electronic formats. The proposed rule is designed to be "user friendly" and is based in part on a national model adopted by the Conference of Chief Justices and the Conference of State Court Administrators.

It operates on the principle that court records are public unless the information is expressly determined to be confidential. The proposed rule also encourages courts to adopt methods to enable the public to access the records from off-site and around the clock. It also specifies that certain identifying information, such as social security numbers, Personal Identification Numbers and birth dates as well as addresses and phone numbers of victims and witnesses be kept confidential.

Individuals will have until January 16, 2004 to comment on the rule. It will be become final after the Supreme Court has reviewed any comments and made any necessary changes.

Posted by Marcia Oddi on Friday, February 27, 2004
Posted to General Law Related

Indiana Decisions - Decisions Posted by Both the Supreme and Appeals Court Yesterday

[Sorry for the delay -- computer problem yesterday.]

Rodney J. McCormick v. State of Indiana (2/26/04 IndSCt) [Criminal Law & Procedure]
Rucker, Justice

This case presents the question of how a court should respond in the context of a Batson claim when a party offers multiple rationales for a peremptory strike, some of which are permissible and one of which is not. * * * [A] number of state courts have rejected the dual motivation analysis for reviewing Batson claims and instead have adopted what is referred to as the “tainted” approach. In simple terms, “[r]egardless of how many other nondiscriminatory factors are considered, any consideration of a discriminatory factor directly conflicts with the purpose of Batson and taints the entire jury selection process.” [cites omitted] * * * [W]e conclude the tainted approach is the appropriate analytical tool in evaluating Batson claims. As applied to the facts in this case, the State’s impermissible racially based peremptory challenge tainted any nondiscriminatory reasons it may have proffered. Accordingly, the State failed to meet its burden under the second prong of Batson to come forward with a race-neutral explanation for its peremptory strike. McCormick is thus entitled to a new trial.

Conclusion. We reverse the judgment of the trial court and remand this cause for a new trial.

Ronald E. Dumas v. State of Indiana (2/26/04 IndSCt) [Criminal Law & Procedure]
Rucker, Justice
After a trial by jury Ronald E. Dumas was found guilty of murder, felony murder, and robbery as a Class A felony. He was also adjudged a habitual offender. The trial court sentenced Dumas to life without parole for the murder conviction and to a term of years for the robbery conviction. The trial court imposed a thirty-year sentence for the habitual offender adjudication. In this direct appeal Dumas raises the following rephrased issues: (1) Did the State’s closing argument during the guilt phase of trial shift the burden of proof to Dumas thus resulting in prosecutorial misconduct; (2) Did the trial court allow improperly certified documents to be introduced into evidence at the habitual offender phase of trial; (3) Did the trial court err by allowing the introduction of hearsay evidence during the penalty phase of trial; and (4) Was the trial court’s sentencing order imposing life imprisonment without parole inadequate as a matter of law? To each issue we answer no and therefore affirm the judgment of the trial court.

State of Indiana v. Kerel L. Seabrooks (2/26/04 IndCtApp) [Criminal Law & Procedure]

In Re: C.A. and L.A. v. Cedric Adams (2/26/04 IndCtApp) [Family Law; Constitutional Law]
Mathias, Judge

We conclude that the use of contempt to enforce an order to pay child support arrearage after the child is emancipated is prohibited by Article One, Section Twenty-Two of the Indiana Constitution, and affirm the trial court in all respects. * * *

While we recognize the importance of providing appropriate tools to enforce child support orders, so too do we recognize that these enforcement tools must be constitutional. Our supreme court’s holding in Corbridge, contrary to the State’s arguments, derives from our constitution’s prohibition against imprisonment for debt. Therefore, despite the 2002 amendment to Indiana Code section 31-16-12-1, we must conclude that the use of contempt to enforce an order for child support arrearage after a child is emancipated is prohibited by Article One, Section Twenty-Two of the Indiana Constitution under the reasoning set forth in Corbridge.

Paula Jo Wagner, et al. v. Roy E. Spurlock, Jr., et al. (2/26/04 IndCtApp) [Civil Procedure]

Sally R. Riley v. Heritage Products, Inc. [Worker's Compensation]

John Cho, et al. v. Purdue Research Foundation, et al. (2/26/04 IndCtApp) [Mechanic's Lien]

Posted by Marcia Oddi on Friday, February 27, 2004
Posted to Indiana Decisions

Thursday, February 26, 2004

Law - Well, This Caught My Eye!

"Company Offers Outsourcing Brief Writing, Legal Research to India," is the headline to this story from the Texas Lawyer [via Jurist]. The lead:

As a law clerk for U.S. District Judge Jerry Buchmeyer of Dallas, Abhay "Rocky" Dhir was as bright and eager as they come, attracting the attention of a couple of big firms that wanted to hire him as an associate. But Dhir knew he would take a different career path.

When the clerkship ended in 2000, the comfortable salaries firms offered were certainly tempting for the University of Michigan Law School graduate. But they didn't sate the entrepreneurial thirst Dhir had since childhood.

So the next year, Dhir founded Dallas-based Atlas Legal Research, a legal business that provides affordable services such as brief writing to small firms and solo practitioners. But it's a business with an unusual twist — the bulk of the research is performed by lawyers in Dhir's native India. Dhir and his family immigrated to the United States in 1976 and became U.S. citizens.

[Unfortunately, it appears most of the story is inaccessible unless you sign up.]

Posted by Marcia Oddi on Thursday, February 26, 2004
Posted to General Law Related

Law - GAO Reports on Private Sector Use of Social Security Number

"Social Security Numbers: Private Sector Entities Routinely Obtain and Use SSNs, and Laws Limit the Disclosure of This Information," is the title of this 35-page GAO report issued 2/24/04. a one-page "highlights" sheet may be accessed here.

Page 24 of the GAO report states:

At least six states have enacted their own legislation to restrict private sector uses of SSNs. Based on our review of select legislative documents within 18 states, California, Missouri, Arizona, Georgia, Utah, and Texas had enacted laws to restrict either the display or the use of SSNs.
What about Indiana? In 1978 the State of Indiana enacted a law providing that "No individual may be compelled by any state agency, board, commission, department, bureau, or other entity of state government to provide the individual's Social Security number to the state agency against the individual's will, absent federal requirements to the contrary." This law was the result of 12/1/76 recommendations of Governor Otis Bowen's Commission on Individual Privacy. This group was charged with investigating and making recommendations on, among other things, "the use of social security numbers, license plate numbers, universal identifiers and other symbols to identify individuals in data bases and to gain access to, integrate or centralize information systems and files."

Take a look at that same law as it exists today, IC 4-1-8-1 (go to version b). Today, twenty-six years later, the law has been amended over and over and now contains a list of dozens of exemptions, which appear to exclude most state government functions from the prohibition against requiring an individual to provide her social security number.

Posted by Marcia Oddi on Thursday, February 26, 2004
Posted to General News

Wednesday, February 25, 2004

Environment - Contentious Air Permit Hearing in NW Indiana

This story today (note - the paper does not archive its stories) in the Gary Post-Tribune begins:

OGDEN DUNES — A state official charged with setting pollution limits for industrial smokestacks found himself trying to keep a meeting of people worried about their health from boiling over Tuesday night.

“I grew up 10 miles from here,” said Paul Dubenetzky, chief of IDEM’s permits branch, trying to calm one outburst. A voice from from the back of the audience came at once, “We still live here!”

Over 70 town residents packed the Ogden Dunes Volunteer Fire Station to testify on the application by steel waste processor Amrox for a permit to operate its facility, which is under federal investigation for emitting too much hydrochloric acid into the air, under the updated Title V of the Clean Air Act.

Here is a map showing the location of Ogden Dunes in the Indiana Dunes National Lakeshore.

Another story about the same meeting appeared in the Munster Times. Some quotes:

ODGEN DUNES -- Residents told tales of acid clouds so large they couldn't hold their breath long enough to pass through. * * * "We used to ride our bicycles down Route 12 until it got so difficult to breathe," Cordelia Swanson told an Indiana Department of Environmental Management official Tuesday night during a public hearing on the issuing of a Title V permit to American Iron Oxide, or AMROX. * * * The company, located within U.S. Steel Midwest plant property in Portage, is a pickle liquor recycling plant that takes waste and regenerates it into hydrochloric acid and iron oxide. It began operations in 2000. * * *

While Dubenetzky said he could listen to the residents, they really didn't have any bearing on his decision to issue the permit to the company; neither does the fact that the plant currently has an enforcement case pending against it by the Environmental Protection Agency dating back to December 2001. At that time, the EPA cited the company for numerous violations.

"I don't think I have the right to deny a permit because they haven't figured out how to come into compliance," Dubenetzky said. Residents questioned Dubenetzky about why the company has continued to be allowed to operate, since it has not been able to comply with emission requirements more than two years after the EPA was called in to test emissions. "The EPA is the lead agency in bringing them into compliance," he answered.

A copy of the 56-page draft Title V permit may be accessed here. Here is some information from page 2, the preliminary findings:
Notice is hereby given that the above-mentioned company, located at 6300 U.S. Highway Route 12, Portage, Indiana, 46368, has made application to the Indiana Department of Environmental Management (IDEM), Office of Air Quality (OAQ) for a Part 70 Permit for an iron oxide and hydrochloric acid regeneration and recovery plant.

A Part 70 permit consolidates all of a source’s applicable air pollution control requirements into one permit. This proposed Part 70 permit includes provisions that ensure that compliance with these requirements can be determined.

This proposed Part 70 permit does not contain any new proposed emission units.

This proposed Part 70 permit contains provisions intended to satisfy the requirements of the construction permit rules for certain existing unpermitted emission unit(s).

Posted by Marcia Oddi on Wednesday, February 25, 2004
Posted to Environmental Issues

Indiana Decisions - Two New Court of Appeals Rulings Posted

Ann and Jeff Willis v. Christopher Westerfield (2/25/04 IndCtApp) [Civil Procedure]

Includes discussion of the affirmative defense of sudden emergency.

Joe M. Cummins v. Brent R. McIntosh, M.D. (2/25/04 IndCtApp) [Civil Procedure]
Brook, Chief Judge

Here, the master commissioner found only that McIntosh’s motion for summary judgment should be granted without informing the trial court judge of the facts upon which her decision was based. ... This finding was insufficient to inform or assist the trial court judge in determining whether there was a genuine issue as to any material fact and whether McIntosh was entitled to judgment as a matter of law. ... Given that the trial court judge relied on and adopted this insufficient finding in entering summary judgment in favor of McIntosh, we conclude that remanding for more specific findings is the appropriate means of ensuring that the master commissioner complies with both the letter and the spirit of Indiana Code Section 33-5.1-2-11(e) and that the trial court judge is fully informed before she enters an order on McIntosh’s motion for summary judgment. ... The master commissioner’s amended findings need not be exhaustive, but they must be sufficient to inform the trial court judge of the basis for her recommendation. Remanded.
ROBB, J., concurs. SULLIVAN, J., dissents with opinion.
* * * In the case before us, the release itself is the sole piece of relevant evidence designated by the parties. Its legal effect is apparent upon the face of it. The magistrate’s failure to state the obvious in findings submitted to the court is at worst harmless because on its face the summary judgment is unassailable and is correct as a matter of law. I would affirm the summary judgment in favor of McIntosh.

Posted by Marcia Oddi on Wednesday, February 25, 2004
Posted to Indiana Decisions

Environment - DC Circuit Rejects Incinerator Rules

According to this story today in the Washington Post:

The U.S. Court of Appeals in Washington rejected federal rules governing incinerator emissions as inadequate yesterday, forcing the Environmental Protection Agency to rewrite the regulations.

A troika of environmental groups had challenged the rules, established in 2000, arguing that they were not preventing dangerous toxins from being released into the air across the country. An industry organization had also sued, arguing that the rules treated similar companies inconsistently. * * *

In yesterday's ruling, the three-judge panel wrote that given the emission levels coming out of incinerators, it could not uphold EPA's currently mandated levels as complying with the Clean Air Act.

The decision, NE Md. Waste Disposal Authority v. EPA, may be accessed here.

Posted by Marcia Oddi on Wednesday, February 25, 2004
Posted to Environmental Issues

Law - "Law and Order" has Nothing on this Proposed Show!

"Tonight in Los Angeles: Stories Ripped From the Federal Register! "

Imagine the pitch sessions: "SSA-CSI" -- Diligent clerks at the Social Security Administration team up with crime scene sleuths to crack cases. Or "HIPAA-SVU" -- Enforcers of the Health Insurance Portability and Accountability Act vigilantly protect the identities of victims of heinous crimes.
You'll find this exciting pitch for a new show ("Hollywood is America's storyteller, and there are a lot of great stories about government workers that haven't really been told ...") about half-way through today's Reliable Source column in the Washington Post.

Posted by Marcia Oddi on Wednesday, February 25, 2004
Posted to General Law Related

Law - Tennessee Supreme Court Holds its Own Rule Unconstitutional

The eye-catching lead to this story Saturday in the Nashville paper, The Tennessean, reads:

The state Supreme Court has declared one of its own rules unconstitutional, opening complaints against lawyers to greater public scrutiny.

In a case involving two unidentified lawyers, the court said its rule restricting public discussion of an official complaint against an attorney infringed on the free-speech rights guaranteed by the constitutions of the United States and of Tennessee.

In the case of the two lawyers identified only as John Doe v. Jane Doe, Jane accused John of unethical conduct and sent the letter to two other attorneys, a judge and a trial court clerk.

That was a violation of the state Supreme Court's rule regarding disciplinary proceedings for lawyers, which said none of the participants could discuss a complaint until it had reached a certain stage. This case was not there yet.

The case is titled John Doe v. Jane Doe (pdf). The Court's conclusion:
The State has failed to meet its burden of proving that the confidentiality requirement of section 25 is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Consequently, we conclude that section 25 violates free speech rights under Article I, section 19 of the Tennessee Constitution and the First Amendment to the United States Constitution. Because we further conclude that contempt sanctions are not appropriate under the circumstances of this case, the petition for contempt is denied. Filed contemporaneously with this opinion is an order publishing for public comment a proposed amendment to Rule 9, section 25 of the Rules of
the Tennessee Supreme Court. The proposed amendment addresses the constitutional concerns discussed in this opinion. The Court solicits comments from all interested parties. The proposed amendment shall serve as the interim rule until formal adoption of an amended rule.
Here is a link to the proposed amendment to Rule 9.

[See also this entry from ethicalEsq]

Posted by Marcia Oddi on Wednesday, February 25, 2004
Posted to General Law Related

Tuesday, February 24, 2004

Law - "Got Milk?" goes the way of "Got Pork?" and "Got Mushroom?"

Today in Cochran v. Veneman, a 3-judge panel of the USCA for the 3rd Circuit decided the question of:

whether a federal statute may compel a small dairy farm in Pennsylvania to help pay for the white-mustache milk advertisements and other dairy promotions. Implicated here are general First Amendment precepts that protect the right to refrain from speaking and the right to refrain from association, and the specific issue of whether the government may compel individuals to fund speech with which they disagree.
For background, see the Nov. 1, 2003 entry in the old Indiana Law Blog, discussing the 6th Circuit's opinion ruling that the pork checkoff program is unconstitutional.

[Update 2/25/04] Here is an AP story in the Boston Globe today headlined "'Got milk?' campaign dealt setback in court."

Posted by Marcia Oddi on Tuesday, February 24, 2004
Posted to General Law Related

Indiana Decisions - Two from Court of Appeals Posted Today

Jeffrey O. Butrum v. Kathy L. Roman (2/24/04 IndCtApp) [Family Law]
Vaidik, Judge

Jeffrey O. Butrum (“Father”) appeals the trial court’s order denying his petition to emancipate his daughter. Specifically, Father contends that because his daughter was eighteen years old, living with her boyfriend, working full-time, and not yet enrolled in college, she was emancipated pursuant to Indiana Code § 31-16-6-6. Because the daughter was still being financially supported by her parents, working full-time to save money for college, and living rent-free with her boyfriend, Father has failed to prove that his daughter was self-supporting or capable of supporting herself. Accordingly, we affirm the trial court’s order that daughter was not emancipated.
Jason L. Massey v. State of Indiana (2/24/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Tuesday, February 24, 2004
Posted to Indiana Decisions

Biotech - Seeds contaminated with engineered DNA

"Engineered DNA Found in Crop Seeds: Tests Show U.S. Failure to Block Contamination From Gene-Altered Varieties," is the headline to this story today in the Washington Post. The lead:

Much of the U.S. supply of ordinary crop seeds has become contaminated with strands of engineered DNA, suggesting that current methods for segregating gene-altered seed plants from traditional varieties are failing, according to a pilot study released yesterday.

More than two-thirds of 36 conventional corn, soy and canola seed batches contained traces of DNA from genetically engineered crop varieties in lab tests commissioned by the Union of Concerned Scientists, a Washington-based advocacy group.

The report concludes that "if federal rules and farm practices are not tightened ... the United States may soon find it impossible to guarantee that any portion of its food supply is free of gene-altered elements, a situation that could seriously disrupt the export of U.S. foods, seeds and oils."

The 70-page report, titled "Gone to Seed," may be accesed here. A story from Food Production Daily may be accessed here.

The Post has a special page devoted to Biotech Food, linking to all its earlier stories, including this one from January 23rd headlined "Rules on Biotech Crops to Be Revised: USDA Will Examine Environmental Impact of Genetic Engineering."

Posted by Marcia Oddi on Tuesday, February 24, 2004
Posted to Biotech

Monday, February 23, 2004

Indiana Decisions - Opinions Posted Today by Supreme and Appeals Courts

[Note that the date an opinion is posted by the Court may differ from the date the opinion was issued.]

Erick David Gameas-Castellanos v. Catherine Marie Gamas (2/20/04 IndSCt) [Family Law; Civil Procedure]

In a published order, the Court ruled:

Because this appeal involves an issue of child custody, the Court has elected to expedite the case by issuing this dispositive published order rather than an opinion. See Ind. Appellate Rule 21(A). In sum, we conclude that Louisiana exercised jurisdiction in substantial conformity with the UCCJA, and therefore under Indiana Code § 31-17-3-6, the Clark Circuit Court should not have also exercised jurisdiction over custody of the younger child. Further, even if Louisiana erred in determining which state was the home state for purposes of deciding custody of the younger child, because the issue was conclusively litigated in Louisiana with both sides fully participating, the decision of the Louisiana court system is entitled to full faith and credit in Indiana. See Lee v. DeShaney, 457 N.E.2d 604, 607-08 (Ind. Ct. App. 1983).

For the forgoing reasons, the judgment of the Clark Circuit Court is reversed in part. The matter is remanded to the trial court with directions to vacate its judgment to the extent it exercises home state custody jurisdiction over the parties’ younger child, and to take any other actions necessary and consistent with this order.

Velvet Imre & Gregory Gambill v. Lake States Insurance Company (2/23/04 IndCtApp) [Insurance]

James C. Mesarosh v. State of Indiana (1/12/04 IndCtApp) [Criminal Law & Procedure]

"The evidence clearly demonstrates that Mesarosh committed failure to return to lawful detention, a Class D felony. Thus, we reverse Mesarosh’s conviction for escape as a Class C felony and remand this case to the trial court with instructions to enter a judgment of conviction against Mesarosh for failure to return to lawful detention and impose sentence accordingly."

Posted by Marcia Oddi on Monday, February 23, 2004
Posted to Indiana Decisions

Environment - Indianapolis Neighborhood at Risk Part II

Today's Indianapolis Star has the second, and apparently final, part of its "Special Report: Neighborhood at Risk," about the air problems of south-west Indianapolis. Access today's lead story, "Residents confronted with air of indifference: Officials have done little to assess health concerns," here.

Again, today's Star devotes an enormous part of its first section "news hole" to this coverage, 3/5 of the front page and four full pages of the 14-page front section. Plus this editorial, titled "Unhealthy situation needs quick action." Some quotes:

Even more discouraging is the fact that state and local environmental and health officials have largely ignored the problems.

Some of the excuses for failing to act are frankly weak. State environmental officials, for example, say they don't have enough money to buy an air monitor for measuring heavy metals in the area. The Indiana Department of Environmental Management applied for a $70,000 federal grant last year but was turned down. No one bothered to ask state lawmakers for the money.

Regulations have forced industries to reduce pollution, and in fairness the air quality is significantly better in the city than in decades past. But by all indications there are still significant problems in the area, and the failure to confront them may be costing people their health and their lives. It also costs all of Marion County in the form of higher bills for public health care.

State and local leaders must insist that air quality is closely monitored in the area. They need to rethink zoning laws that allow homes to sit beside major industries. They also need to bring together residents, industry executives and public health officials to cooperatively confront the problems.

Posted by Marcia Oddi on Monday, February 23, 2004
Posted to Environmental Issues

Law - The Future is Now: Chicago Police Create Massive Relational Database

"Police Power Coming Up Behind You" is the title of the "From the Editor" section of the Feb. 15, 2004 issue of CIO Magazine. Some quotes:

THE GUY IN THE SUV in front of us, stuck in Chicago traffic with about a million other cars, lives in Virginia, has not been arrested in the past several years, has one outstanding ticket for speeding (in Virginia), and is six months delinquent in renewing his registration.

I know this because I'm in a cop car, right on his tail. We've just entered his plate number into the MicroSlate notebook mounted on the center console of our unmarked cruiser. A few more clicks, and we probably could have found out when he bought the SUV and what he paid for it. * * *

Chicago patrol officers and desk-based detectives now have at their fingertips access to 200GB and nearly 8.5 million records of arrests and other incidents. Type in an address—say, the Krispy Kreme on the corner or your neighbor's house—and up will pop a list of all reported incidents for that location. Access a known offender, and you'll get a list of his addresses and aliases, and high-res images of his mug shots and tattoos (tattoos are the criminal equivalent of bar codes and are put to the same use by the cops).

CIO is published "to meet the needs of CIOs (Chief Information Officers) and other information executives." It has awarded the CLEAR (Citizen Law Enforcement Analysis and Reporting) system, the Chicago Police Department's unique enterprisewide relational database, the first the Grand CIO Enterprise Value Award. Here are some quotes from the award story:
This sort of intelligence-driven police work is a strategic objective for most metropolitan PDs, since 9/11 launched a new era of crime-fighting, but the Chicago Police Department (CPD) is leading the way. And it's something of a miracle that it's happening here, in the country's second largest police force after New York City's.

Chicago's pursuit of IT value has been methodical and tenacious. Obtaining and maintaining funding, overcoming user resistance and laboring through drawn-out training sessions have been a continuous struggle. With nothing available to buy that met its vision, Chicago needed to partner with database giant Oracle. Three years and $40 million later, 50 percent of the original vision and applications have been implemented. But even at the half-way point, the CPD has proven to the city, county, state and beyond that IT can work in big city policing and does reduce crime.

For those reasons, the Chicago Police Department is this year's sole recipient of CIO's top enterprise value distinction—the Grand CIO Enterprise Value Award. "Enterprise value in its highest form is the opportunity for IT to transform a business, to bring a whole new model into existence," says Rebecca R. Rhoads, CIO of Raytheon and an Enterprise Value Awards judge. * * *

The CLEAR database, deployed in April 2000 and now topping 200GB, is the foundation for a growing set of integrated CLEAR applications used by all of the department's 13,600 officers and most of its 3,000 civilians, plus an exponentially expanding base of users outside the city limits. In fact, the state of Illinois' crime data system will be replaced by CLEAR, which will serve as the State Police's data repository. * * *

Further afield, Indiana has expressed interest in the source code, and the CPD has demonstrated CLEAR to the Los Angeles and Washington, D.C., police departments. * * *

Federal interest is growing too. The FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives, and Drug Enforcement Administration are all tapping into CLEAR. Oracle, which has worked with Chicago to demonstrate the system nationally, is seeing momentum building around a national model.

Here is a 2/17/04 Chicago Tribune story; a 2/10/04 Yahoo entry/press release; and here is yesterday's Slashdot entry.

Posted by Marcia Oddi on Monday, February 23, 2004
Posted to General Law Related

Sunday, February 22, 2004

Environment - Indianapolis Neighborhood at Risk

The Indianapolis Star this Sunday has devoted an amazing amount of its news space to the start of a series titled "Special Report: Neighborhood at Risk," targeting the neighborhoods located in the "industrial hub" of Indianapolis - the southwest side. How much space? Four-fifths of the front page, plus 5 full pages inside the front section. This includes a full-page graphic described as "A look at the southwest side neighborhoods at risk from toxic air pollution and a listing of major industries and the toxins they release."

The lead story, titled "Toxic air raises unhealthy odds: Lung cancer death rate in industrial hub far exceeds Marion County's as a whole," may be found here. It begins:

Tucked among the thicket of manufacturing plants on Indianapolis' southwest side is a patchwork of tidy homes -- oases of green softening the gritty, gray expanse.

Generations of working-class residents have raised families on streets where houses aren't fancy, but affordable, and people know their neighbors. There are no big shopping malls, no new subdivisions. But there are factories that make aircraft engines and automobile engine blocks, medicine and chemicals.

Some quotes from about two-thirds through the main story relate to reliance on a U.S. EPA study released "two years ago showing that residents on the southwest side had some of the highest cancer risks in the United States from hazardous air pollution emitted by major industries." One objection is that:
the data are from one year -- 1996 -- and don't reflect reductions made by industries since then.

Rolls-Royce, for example, stopped using the toxic chemical methylene chloride to clean grime from airplane engine parts by the end of 1998, reducing the use of that chemical by 11,000 gallons a year. It now uses mostly water-based solvents to do the job.

At Reilly Industries, tying chemical tanks together, sealing connections where pipes meet, putting in backup valves and numerous other steps have reduced emissions of formaldehyde, ammonia, benzene and other chemicals, said Reilly Vice President Jacqueline A. Simmons. Through changes to one process in 1996, the company said, it reduced benzene emissions by 14,000 pounds per year.

As to whether the State investigated the problems after the EPA report was released:
Janet McCabe, the environmental agency's [IDEM's] assistant commissioner for air quality, said the agency wants to determine whether the risks are accurate but doesn't have the money to buy an air monitor to measure for chromium and other heavy metals in the neighborhood. The agency applied for a $70,000 federal grant last spring but was turned down; she said it plans to apply again but has not asked lawmakers for the money.

Some local industry officials, though, said they would welcome air monitoring and might be willing to help pay. "We actually are in favor of more data-gathering," said Simmons, the Reilly vice president. "We believe the data would show that people are at much less risk than the modeling shows."

A follow-up EPA study, due out this summer, will calculate risks for more than 150 toxic pollutants, perhaps offering a clearer picture of the risks on the southwest side and across the nation.

As for other state and local officials, according to the Star:
The State Department of Health and city officials have said they see no immediate need for a closer look at the risks identified in the 2002 EPA report.

John B. Chavez, administrator of Indianapolis' office of environmental services, the Department of Public Works branch that ensures industries comply with state and federal environmental regulations, said he did not plan to try to investigate the findings.

"I'm not saying . . . that we should just say, 'OK, there's not an issue here' and walk away from it. But when you have a very limited amount of staff and a limited amount of resources, you need to make priorities," Chavez said. "We would need to just see if more readily available data would indicate that there is a problem. But at this point, I don't have it in my plans."

Coming Monday: "People living on the southwest side face health risks from pollution because industry and neighborhoods were allowed to grow together, and officials failed to respond to warnings and residents' concerns."

Posted by Marcia Oddi on Sunday, February 22, 2004
Posted to Environmental Issues

Saturday, February 21, 2004

Law - Elections With No Meaning

It is hard to think of a better headline than "Elections with no meaning" for this editorial in today's NY Times. A quote:

A major reason legislative elections are becoming a charade is that the parties that control the redistricting process now routinely follow the dictum of "pack, crack and pair." They pack voters from the other party into a single district and crack centers of opposition strength, dispersing opponents to districts where they will be in the minority. They redraw lines so two incumbents from the other party will wind up in one district, fighting for a single seat. Using powerful computers, line-drawers can now determine, with nearly scientific precision, how many loyal party voters need to be stuffed into any given district to make it impregnable.
This editorial is part of a series the Times is doing with the overall title: "Making Votes Count." The piece today also points out that:
[In 2002] in the United States, 80 of the 435 House races did not even include candidates from both major parties. Congressional races whose outcomes were in real doubt were a rarity: nearly 90 percent had a margin of victory of 10 percentage points or more. It is much the same at the state level, only worse. In New York, more than 98 percent of the state legislators who run for re-election win, usually overwhelmingly. Anyone who knows anything about New York's state government knows that's not because the populace is thrilled with the job they're doing. [emphasis added]
The Indianapolis Star today has several stories on the upcoming May 4th primary, as the filing deadline was noon yesterday, Feb. 20th. Reinforcing the NY Times is this lead from a story titled "Most legislative hopefuls are running unopposed":
Even though control of the Indiana House is at stake this election year, most legislative candidates are running unopposed in the May primary. Thirty of a possible 200 House primary races will be up for grabs May 4. In the Senate, there's even less competition -- four of 50 Senate nomination races will be contested. That's lower than in 2002, when there were 35 contested primaries out of a possible 250 races.

Posted by Marcia Oddi on Saturday, February 21, 2004
Posted to General Law Related

Not Law But Interesting - Ed Sullivan Meets the Beatles

Tom Shales had a great column yesterday in the Washington Post, with a wonderful headline: "Yesterday Came Suddenly: On DVD, Ed Sullivan Meets the Beatles." A quote:

For some of us, however, especially those who are baby boomers and older, the cultural significance and the tonsorial significance (such a fuss was made over their hair, which was long but impeccably kempt) are almost beside the point. There is in these sounds and images another opportunity to be teleported back in time. Improbable or even foolish as it sounds, I had tears in my eyes on the first few notes of "All My Loving," their first number. I didn't even know why.

Posted by Marcia Oddi on Saturday, February 21, 2004
Posted to General News

Environment - Interesting "Circa WWII" CERCLA Opinion; Reports of Superfund Funding Concerns

Western Properties Service Corp. v. Shell Oil (2/13/04 USCA 9th Cir.) is a CERCLA contribution case where the appellants were found to have arranged, during the early years of World War II, for the disposal of wastes from aviation fuel production. An introduction to this 25-page opinion:

The property at issue, near Corona, in Riverside County, California, was once a ranch owned by the Wardlows. Gravel had been excavated from the property in 1938 for a nearby dam, leaving four gravel pits. For $2,000, the Wardlows sold the right to dump “acid tar”—petroleum waste consisting in substantial part of sulfuric acid—into those pits. Oil refineries, for over a decade by then, had been going farther and farther afield from their Long Beach locations for disposal sites because the stink of acid tar was notoriously offensive to neighbors. This sludge could be smelled from almost a mile away. Burning did not solve the problem, and the fumes were so bad that they killed flowers and fruit trees. Runoff from the waste made farmland useless and killed fish in nearby streams.

Among the central difficulties in this case is that it is hard to say what the facts are, as the parties could find no living person who knows what happened, and documentary evidence supports nothing more than inferences. The actions giving rise to the claim were performed (if indeed they were) in 1941 and 1942.

Yesterday (2/20/04) the Washington Post reported here that:
A steady decline in Superfund funding has alarmed lawmakers and some Environmental Protection Agency officials, who argue dangerous sites are not being cleaned up because of a lack of funds. Sens. James M. Jeffords (I-Vt.) and Barbara Boxer (D-Calif.) released an updated General Accounting Office report yesterday showing that in inflation-adjusted dollars, the Superfund program has seen a 35 percent decline in funding, or $633 million, since 1993. Jeffords and Boxer are pushing for reauthorization of an environmental tax that expired in 1995 on all corporations. * * *

The report came as the National Environmental Trust released a rash of internal memos by EPA officials warning the lack of resources are impeding their ability to complete critical work. In one Aug. 12, 2002, memo, for example, a regional official wrote, "I am very concerned about mortgaging the program's future in favor of relatively small gains today." EPA officials countered that they are tackling more complex, larger sites than they did in the past. Last year, for example, 50 percent of the EPA's long-term cleanup budget was concentrated at eight sites. Seventy percent of all cleanup costs are paid for by the companies responsible for the pollution, EPA officials said.

Here is the updated GAO report referred to above. The highlights of the original, July 2003 report may be found here, along with a link to the full report.

Posted by Marcia Oddi on Saturday, February 21, 2004
Posted to Environmental Issues

Law - 7th Circuit Ruling Interesting on Several Levels; Including Comments re Unpublished Opinions

Sierra Club, Inc. v. EPA (2/19/04 USCA 7th Cir.)
Easterbrook, CJ

Petitions to Intervene. This 4-page opinion relates to a petition to intervene in a suit brought by the Sierra Club against the U.S. EPA:

After the Illinois Environmental Protection Agency issued a permit authorizing Indeck-Elwood LLC to construct a 660-megawatt coal-fired power plant in Elwood, Illinois, the Sierra Club filed a petition for review naming the United States Environmental Protection Agency as the sole respondent—even though it has taken no action in response to the state’s decision.
A builder and the state chamber of commerce petitioned to intervene. The builder's motion to intervene is granted because its legal interests are at stake.
Rule 15(d) does not provide standards for intervention, so appellate courts have turned to the rules governing intervention in the district courts under Fed. R. Civ. P. 24. Persons whose legal interests are at stake are appropriate intervenors, so we grant [the builder's] motion. * * * The Chamber, by contrast, lacks any direct interest in the outcome. Rule 24(a)(2) provides that, unless a statute governs (and none does so here), intervention is proper “when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The Chamber does not have “an interest relating to the property or transaction which is the subject of the action”; its concern is not a legal “interest” (the permit at stake affects only one power plant) but a political or programmatic one: the Chamber favors more business and less environmental regulation. That does not justify intervention. Indeed, it does not necessarily justify even a filing as amicus curiae.
Further, the Court states:
Even if the Chamber had a legal interest to protect, it could not intervene as long as that interest is “adequately represented by existing parties.” Indeck-Elwood [the builder] will defend the state agency’s decision, and the federal EPA is likely to do so. The Chamber says that it fears that the parties will settle the proceeding, but this is a reason to deny rather than allow intervention. Why should the Chamber receive an entitlement to nix a settlement (if one can be reached) that the Sierra Club, Indeck-Elwood, and the EPA all favor? Officious intermeddlers ought not be allowed to hijack litigation that the real parties in interest can resolve to mutual benefit.
Unpublished Opinions. The second reason this opinion is interesting is found in the closing paragraph, relating to unpublished opinions:
According to the Chamber, two courts of appeals—this circuit plus the D.C. Circuit—have permitted it to intervene in litigation against the EPA. None of these decisions provides an explanation, and none is published, so they have no precedential force. For all we can tell, in those cases the Chamber represented a member that would have been allowed to intervene on its own behalf. * * *
As reported by Howard Bashman's How Appealing here, "Seventh Circuit Judge Frank H. Easterbrook supports proposed Federal Rule of Appellate Procedure 32.1, which would allow citation to unpublished and non-precedential opinions in all federal appellate courts." Bashman continues with a link to: "this letter signed by a majority of judges serving on the U.S. Court of Appeals for the Seventh Circuit opposing proposed FRAP 32.1." Easterbrook's letter supporting the rule change is here. The key paragraph:
When the institution of unpublished opinions was created, these documents were unavailable to most lawyers. Local rules forbade citation in order to avoid the advantage that institutional litigants, such as the Department of Justice, otherwise could obtain. Today they are published on Westlaw, Lexis, and the Federal Appendix. Under recent legislation every circuit must post them online in searchable form. The original justification for not citing these documents no longer applies. Nor is it possible to justify a non-citation rule by reference to the difficulty in handling the greater volume of dispositions; computers build indexes on the fly and have made obsolete the old key number system that had been swamped by too many opinions. It is hard for courts to insist that lawyers pretend that a large body of decisions, readily indexed and searched, does not exist. Lawyers can cite everything from decisions of the Supreme Court to "revised and extended remarks" inserted into the Congressional Record to op-ed pieces in local newspapers; why should the "unpublished" judicial orders be the only matter off limits to citation and argument? It implies that judges have something to hide.
Indiana's Rule on Unpublished Opinions. Rule 65 of Indiana's Rules of Appellate Procedure provides as follows (emphasis added):
Rule 65. Opinions and Memorandum Decisions
A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:
(1) establishes, modifies, or clarifies a rule of law;
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.
Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.

B. Time to File Motion to Publish. Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication.

C. Official Reporter. West’s Northeastern Reporter shall be the official reporter of the Supreme Court and the Court of Appeals.

D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

E. Certification of Opinion or Not-For-Publication Memorandum Decision. The Clerk shall serve uncertified copies of any opinion or not-for-publication memorandum decision by a Court on Appeal to all counsel of record, unrepresented parties, and the trial court at the time the opinion or memorandum decision is handed down. The Clerk shall certify the opinion or memorandum decision to the trial court or Administrative Agency only after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification. If the Supreme Court grants transfer or review, the Clerk shall not certify any opinion or memorandum decision until final disposition by the Supreme Court. The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.

How available are the unpublished Indiana Court of Appeals decisions? My experience (please correct me if you have better information) is that paper copies of the unpublished opinions may be obtained from the Clerk of the Court. (Of course, you will need to ask for them by name.) The Indiana Tax Court posts both its published and unpublished opinions on line; the latter are designated "Not for Publication." The Court of Appeals does not post its not-for-publication opinions online, although I do believe that back in the pre-Internet days when the Supreme and Appellate opinions were available via a dial-up bulletin board system, not-for-publication opinions were included. Finally, it does not appear that West publishes the not-for-publication Indiana opinions, but simply notes the existence of each opinion. This is unlike the 7th circuit and other federal opinions which, as Judge Easterbrook notes in his letter, are made available "on Westlaw, Lexis, and the Federal Appendix."

Posted by Marcia Oddi on Saturday, February 21, 2004
Posted to General Law Related

Friday, February 20, 2004

How to Read a Blog

[I posted this entry and the update at the beginning of 2004 at the old blog location, and am repostng it here for new readers.]

The first time I looked at a web log ("blog") I was totally confused. Even after some time of reading blogs, I did not know all the ins and outs. I still may not know all the tricks, but I hope the following will be of help to many of you.

(1) When you go to The Indiana Law Blog, you see the Main Page. The wide left column contains my entries, with the most recent first. All the entries I've posted in any one day will appear under a heading for that day, such as "January 02, 2004."

If you scroll down the page you will see earlier entries, in reverse chronological order. The entries for the past 30 days will always appear here.

(2) Four things to know about the links that appear within an entry:

First, say an entry begins: "This story in today's NY Times...". The link for "this story" will lead directly to the story on the NY Times site. The link for "NY Times" will lead to the main page ("portal") of the NY Times site. Why both? This practice is a generally accepted courtesy, which I think derives from the objections some portal owners have had to what is called "deep linking" -- links that bypass the web portal. Nowadays it would seem to be less necessary, as all pages in major sites will generally identify that it is a page from, say, the NY Times and will provide links to get to other places on the Times site.

Second, particularly with newspaper stories, be aware that a link will not last forever. At some point, you may click on a link in any entry and get nothing, or a notice that the page is not available, or a link to "pay for view" archives. There is no general rule, some pages disappear the next day (eg the Gary Post Tribune's stories); some are good for a week or for months; some may be good forever.

Third, some links will lead to sites that require to you to register the first time you visit (on each different specific computer you use). The NY Times and Chicago Tribune are examples. Registration is free (I do not link to stories on pay sites, such as the Wall Street Journal), but some free sites may request what you may consider to be overly intrusive information and you may decide to forgo reading the story.

Fourth, how to open a link in a new window? If you want to click on a link and have it open a in new window, rather than replacing the screen you are viewing, do this if you are using MS Windows: right click the link; a box will appear; the second option down in the box will be "open in new window"; click it.

(3) What if you want to bookmark a specific entry, or send a link to it to someone? Go to the end of the entry. You will see, for instance, "Posted by Marcia Oddi at 03:37 PM" Click on the time link. That entry, and no more, will appear, filling the entire page (or you can right click, as above, to open it in a new window). You can bookmark this page (via "favorites"), or you can pull down "File" and select "Send" the page, or the link to the page, via email. Or you can highlight all or part of the entry, select "copy" from the Edit menu, then "paste" it into an email message box.

Once you are done with the entry, look at the top of the page, right below the blue title box, and select "Main" to return to the main page. Or use your browser's "back" arrow or command. Or, if you opened a new page, simply close it.

(4) What if you want to go back and read more than the past 30 days' worth of entries? (I'm flattered.) Look at the narrow green right-hand column, and scroll down until you see a list of the months, under the heading "Archives." If you click on "September 2003," for instance, all the entries for September 2003, beginning with the last one made on September 30, 2003, will appear. (This, incidentally, is the way to go if for some reason you should want to print out or save all the entries in this or a similar blog.)

(5) What is the Calendar for? The calendar highlights the days during the current month when at least one new entry has been posted. In this blog the color blue is the highlighter. Clicking on a highlighted date will take you to that day's entries. The calendar is probably most useful for blogs where entires are sporatic. You can tell at a glance whether the owner generally posts new material daily or weekly, or only once in a while.

(6) Two features I feel make this site much more valuable to the user are the "Categories" links and the "Search this Site" box.

Categories. Each time I post an entry, I categorize it. Generally I also identify the category at the beginning of the heading -- such as "Environment - Land Use and Water Quality in Floyd and Hendricks Counties." All my category headings are listed under the heading "Categories" in the right column. (I add new category headings occasionally - you may notice I just added one called "How to Use this Blog" so that you will always be able to quickly find this post.)

If you click on one of the category headings in the right column, such as "Indiana Decisions," you will get a list of every "Indiana Decisions" entry since this blog started, in reverse chronological order, along with the first few lines of the entry. A click will take you to the full entry.

Search! I use the search box all the time. If I'm posting an entry about X and I know (or don't recall whether) I've written about X before, I use the search box. The result I receive is a page listing every entry containing X, in reverse chronological order, with a few lines from the beginning of each such entry. If you wanted to see all the entries that included the term "eminent domain," regardless of category, you could use the search box.

(7) A few other features in the right column. "Other Law-Related Blogs," "Blog Tools," "Indiana Legal Resources," and "Tech and Biotech Blogs," are lists of links to sites I like or use frequently. Occasionally I go through these links and may toss out some or add others.

"Recent Entries" lists the headings of my last ten entries. This feature is, I feel, of questionable usefulness on my blog and I may discard it.

(8) Other information for you. Except for correcting grammar or spelling errors I may notice later, I generally do not change an entry once I have publicly posted it. However, I may add to it within the next day or two, generally via an addition at the end labeled "[Update]" if I obtain more information. Thus it may be useful to you to check back on an entry from yesterday that you found useful or interesting to see if I've added anything.

Most days I post a number of entries during the course of the day. If you want to check in several times during the day, remember that you may need to refresh your browser. In addition, some services, such as AOL, cache pages during the day on their own servers. So even if my page has been updated, the page AOL has cached and you access (if you are, for instance, an AOL user) may still be an earlier version. So you may be seeing one thing, while your friend on the phone who is looking at her computer may be seeing something else on the same main page. Yes, I've had this happen.

Finally, although I have several hundred visitors a day, I'm nowhere in the league of Howard Bashman (How Appealing). So tell your friends about this site. And let me know what you think -- my email address is right there, at the top of the green column.

And thanks for visiting the Indiana Law Blog!

Update: More on How to Read a Blog

A reader wrote to tell me that he enjoyed my "How to Read a Blog" entry, but added:

I use Netscape, not Explorer, and your blog is very strangely formatted when viewed in Netscape (I have to scroll to the bottom for the ad and related admin stuff), and I switch to Explorer to view it only when I need to access a link (which I can't do from your blog in Netscape, for some reason, though I can from Hasen, Still, Bashman, and SCOTUS blogs). That's why I had to smile -- and wince -- when reviewing your great user's guide this weekend . . .
Well, I hated to read that! I sent him a picture of what the Indiana Law Blog should look like (although the green column in the picture is somewhat truncated) and later received this response:
that was helpful. After viewing the .pdf, I was able to get your site to look like that in Explorer -- after I changed the size of the text to "smallest."

Looks great -- far better than the white on blue title box and white box with black text on ugly brown bkgd and bizarre formatting that I get in Netscape!

I mention this in case you too do not see the green column running down the right side of this blog, etc. If you think you may be missing something, check this picture. And please let me know (and tell me what browser you are using) so that I can attempt to make adjustments on my end.

Posted by Marcia Oddi on Friday, February 20, 2004
Posted to

Indiana Law - Bureau of Motor Vehicle Scandal

"Kernan vows quick BMV reform: GOP critics call review a 'whitewash'" is the headline to this above-the-fold front-page story this morning in the Indiananpolis Star. The Governor's press release may be found here. It includes a link to the brief (10 pp. in all, including 5 pp of Findings and Recommendations) Carrington Report.

[Earlier ILB coverage of this story may be found here, at the old ILB location.]

I took a look at the State's BMV website, as I was not clear as to who reports to whom at the BMV. The "About the BMV" page shows a picture of the resigned Commissioner, but does not explain the BMV structure. There is also a link to photos of the BMV Deputy Commissioners. But there does not seem to be any place on the web where the members of the Indiana BMV Commission (i.e. the "BMVC", as oppposed to the "BMV") are even named.

[Update: A kind reader has pointed me to the Roster of State and Local Officials for 2003, which turns out to be a 235 page pdf document. The following are listed as members of the BMVC: Gerald B. Coleman, Indianapolis: Adolfo "Rudy" Olivo, Bloomington: Raymond H. Schelle, Muncie: and Patzetta M. Trice, Indianapolis.]

I then turned to the Carrington Report, which provides some explanation of the structure:

The Carrington Report explains:
The Commissioner of the BMV serves as the chair of the BMVC along with four (4) Bipartisan voting members who are citizens appointed by the Governor. The BMVC under state law has considerable authority and responsibility for the operation of the one hundred seventy (170) BMV Branches and their one thousand six hundred (1,600) employees. The BMVC has recently not been as involved with Bureau policies and operations and only conducted meetings on a quarterly basis. Some meetings were cancelled because a quorum could not be reached. The perception of the BMVC is that it was a "rubber stamp" for the BMV.

All Branch managers and employees are BMVC employees. District managers and others "up the organizational lines" are BMV and regular state employees. BMVC employees and procedures are specific to the BMVC and differ in some respects from state procedures and policies. [see, eg, IC 9-16-4] * * *

Between $700 million and $800 million are handled by the Agency and over 10 million transactions take place each year. Fewer than twenty years ago Branches were operated by political parties. This Agency which can be compared to a large retail business needs to consider applying the most efficient structure, technology, and procedures now available.

Apparently "who works for whom" [i.e. the State (BMV) or non-State (BMVC)] is flexible, as the Star story today also reports:
In a related move, the commission that oversees the BMV's license branches [i.e. the non-state BMVC, which is headed, if I undertstand this correctly, by the head of the BMV, a state employee] voted to make 12 district managers commission employees rather than state employees. Commission members say that move, which will cost it about $500,000 annually, should improve accountability.

Posted by Marcia Oddi on Friday, February 20, 2004
Posted to Indiana Law

Indiana Decisions - Transfer List for Week Ending Feb. 20, 2004

Here is the Indiana Supreme Court's transfer list for the week ending Feb. 13, 2004.

For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column, or click here.

Posted by Marcia Oddi on Friday, February 20, 2004
Posted to Indiana Transfer Lists

Law - Outsourcing jobs, and data, to foreign counties

"Outsourcing: Danger to Privacy," is the headline to this story today at WiredNews.com. Some quotes:

Companies increasingly are outsourcing more than just programming jobs to places like India. They are using foreign accountants to prepare U.S. tax returns, foreign radiologists to examine X-rays and even foreign clerks to transcribe dictation of sensitive medical data from American doctors. In these cases, most Americans have no idea that someone outside the United States handled private information about them. More worrisome, Americans might not be able to sue or collect damages from foreigners who misuse the information.

Last year a medical transcriber in Pakistan threatened to post patients' medical records online unless the University of California at San Francisco Medical Center settled a financial dispute. Lubna Baloch, the transcriber, claimed she hadn't been paid the 3 cents a line reportedly promised by a Texas man, who, in turn, had subcontracted the work from a Florida woman.

The Florida woman herself had subcontracted the work from Transcription Stat, a firm in Sausalito, California, that was paid 18 cents a line by the medical center for the work. The owner of Transcription Stat said she couldn't respond to questions due to a pending lawsuit in the case. A hospital spokeswoman said the medical center didn't know or approve of more than one level of subcontracting and was not aware that work was being sent outside the country.

More:
Democratic Sen. Dianne Feinstein warned the chief executives of banks and credit companies this week that she would crack down on them if they didn't take steps to protect their customers' private data, such as medical and financial information, which is increasingly being handled by clerks working abroad. In a letter to the CEOs of Citigroup, Bank of America, Equifax and TransUnion, Feinstein (D-California) said she might introduce federal legislation to protect the personal data of Americans if the companies don't establish safeguards.
Meanwhile, Computerworld is running a story headlined: "Bank of America creates Indian outsourcing subsidiary: The wholly owned subsidiary will process some of the bank's back-office operations."

"Outsourcing another chapter in an old story," is the headline to this editorial in the Daily Trojan (student newspaper of the U. of S. Cal.). The Economist has an interesting feature on outsourcing headed "The great hollowing-out myth." This issue of The Economist also carries several related stories.

Posted by Marcia Oddi on Friday, February 20, 2004
Posted to General Law Related

Thursday, February 19, 2004

Environment - Farmer gulps manure water to prove his point

That is the headline to this story in the Muncie Star-Press today.

Air Pollution. The Evansville Courier&Press has a long story today on Vanderburgh County, titled "County pollution problem growing: Noncompliance status may spread."

Indiana officials are recommending that Vanderburgh County be designated as not in compliance for another kind of air pollution.

The county, already out of compliance with new federal standards for ozone pollution, is now poised to be declared in violation of new standards for fine particulate matter - another pollutant linked to significant health problems.

The Indiana Department of Environmental Management is recommending to the U.S. Environmental Protection Agency that six counties be designated as violating the standard. Vanderburgh, Dubois, Clark, Marion, Lake and Elkhart are the only Indiana counties among the 19 with particulate matter monitors that recorded levels in excess of the 15 micrograms per cubic meter standard.

The Louisville Courier Journal also has a story.

Posted by Marcia Oddi on Thursday, February 19, 2004
Posted to Indiana Law

Indiana Decisions - Bob Knight Drops Appeal

"Knight drops appeal: Former coach terminates case against University," is the headline to this story in the Indiana Digital Student today. The lead:

Former IU men's basketball coach Bob Knight dropped his lawsuit against the University this week, terminating a legal battle that spanned several years.

Monroe County Circuit Court Judge Kenneth Todd previously struck down the case, which was filed in November 2002. Todd ruled IU was allowed to fire Knight either "for-cause" or without cause, as specified by the terms of his contract. Knight's lead attorney, Russell Yates, filed an appeal against that judgment in the Indiana Court of Appeals Jan. 19.

WISHTV.com Indianapolis has this story. This story ran in the Indianapolis Star.

Posted by Marcia Oddi on Thursday, February 19, 2004
Posted to Indiana Decisions

Indiana Decisions - Three Court of Appeals Opinions Posted Today

Metropolitan School District of Lawrence Township v. Linda J. Carter (2/19/04 IndCtApp) [Worker's Compensation]

Marvin L. Conklin v. Betty Fisher (2/19/04 IndCtApp) [Civil Procedure]
May, Judge

Marvin L. Conklin filed suit against Betty Fisher for negligence. A jury found Conklin 85% at fault and Fisher 15% at fault and the trial court entered judgment for Fisher. The trial court ordered Conklin to pay $1,033.58 to White County for jury per diem/mileage costs, jury lunch and dinner costs, and bailiff reimbursement for jury expenses. See footnote Conklin raises two issues, which we consolidate and restate as whether the trial court properly could assess jury costs against the losing party. * * *

The jury costs the trial court assessed were not filing fees nor were they statutory witness fees. As a result, the trial court erred in assessing jury costs and expenses against Conklin in the absence of authorization by statute or court rule. Reversed.

In a footnote the Court states: "Because we resolve the case on this ground, we need not address Conklin’s alternative argument the imposition of costs was unconstitutional because it would force a civil litigant to pay for exercising his right to trial by jury."

Cardiology Associates of Northwest Indiana, P.C., and JCPN, LLC v. Tracy Collins, M.D. (2/19/04 IndCtApp) [Civil Procedure]
May, Judge

In the instant case, the parties have proceeded under the presumption that the trial court’s order denying summary judgment is a final appealable order under T.R. 54(B) and T.R. 56(C). * * * Contrary to the parties’ arguments or the trial court’s finding, an order denying a motion for summary judgment is not a final appealable order, as no rights have been thereby foreclosed. The denial merely places the parties’ rights in abeyance pending ultimate determination by the trier of fact. Id. Thus, a party seeking review of a denial of a motion for summary judgment must do so by way of interlocutory appeal in accordance with Ind. Appellate Rule 14.

We conclude the trial court’s ruling was interlocutory in nature, despite the trial court’s certification and the subsequent mischaracterization by the parties. Furthermore, we are not bound by the trial court’s determination on the issue of certification. Because this is not a final appealable judgment and the parties did not follow the proper procedure for bringing an interlocutory appeal, see App. R. 14, we do not have jurisdiction over this appeal. We therefore dismiss this appeal and remand to the trial court for further proceedings. [citations omitted]

Posted by Marcia Oddi on Thursday, February 19, 2004
Posted to Indiana Decisions

Wednesday, February 18, 2004

Law - Who Owns Your Phone Number?

Unbeknownst to many of us, eBay has been auctioning "famous" phone numbers. According to this report from wnbc.com:

In this case, the phone number in the vintage 80s Tommy Tutone title “867-5309/Jenny" has to belong to someone and that someone claims to be putting it up for auction.

We dialed the number, 212-867-5309, but all we heard was a recording directing us to the Internet auction site, eBay.

The story goes on to say that Verizon is "singing a different tune."
And when we clicked on to eBay, we found the bids are ringing up to more than $65,000. The potential buyers apparently believe they can purchase the number under the Federal Communication Commission's new portability rules.
Today a Jackson Sun (Tennessee) headline reads: "eBay auction of 'eight-six-seven-five-three-oh-nieeine' on hold." Some quotes:
The phone number popularized by 1982's one-hit wonder Tommy Tutone - Eight-six-seven-five-three-oh-nieeine - rings into a Murfreesboro used-car dealership in area code 615.

Tuning in to national attention for the auction of New York's 212 version of the number on eBay, the dealership put its number on the Internet auction block Monday.

However Tuesday afternoon, David Ludwig, general manger of Auto Outlet, said he got an e-mail from eBay notifying him that his "Jenny" auction had been canceled for being "inappropriate." The other phone numbers being also sold disappeared from the Web site.

The auctions were put on hold until eBay could determine whether they fell within the company's guidelines, a spokesman said Tuesday night. "People are really creative," said spokesman Henry Gomez. "And this one had us scratching our heads a bit."

Posted by Marcia Oddi on Wednesday, February 18, 2004
Posted to General News

Law - Federal Do-Not-Call List Upheld by 10th Circuit

Here is Tuesday's decision upholding the validity of the national do-not-call registry: Mainstream Marketing Services v. FTC (2/17/04 USCA 10th Cir.)

Of course we have our own effective list in Indiana. Here is a page from Attorney General Steve Carter's site comparing the two laws. Here is more information. Here is the law itself, IC 24-4.7 (inconveniently spanning four chapters, which you need to access one by one).

Here is the NY Times and Washngton Post coverage.

Posted by Marcia Oddi on Wednesday, February 18, 2004
Posted to General Law Related

Indiana Decisions - Judge Crone appointed to Court of Appeals

Here is the press release issued Tuesday by Governor Kernan:

Gov. Joe Kernan has appointed St. Joseph Circuit Court Judge Terry A. Crone as judge of the Indiana Court of Appeals. He will succeed Chief Judge Sanford M. Brook, who has resigned.

Judge Crone has presided over the St. Joseph Circuit Court since 1989. He was master commissioner of the court before being appointed to the judgeship by Governor Evan Bayh. He was elected judge in 1990 and re-elected in 1996 and 2002. As judge, he has presided over hundreds of civil and criminal trials in all areas of law. Before his judicial service, Judge Crone was a lawyer in private practice and part-time city attorney for South Bend and county attorney.

“I am proud to appoint someone of Terry Crone’s caliber to the Court of Appeals,” Kernan said. “He is a brilliant judge who understands the practical implications of his decisions. He will have great success on the Court of Appeals.”

Judge Crone is a graduate of DePauw University and the University of Notre Dame Law School. He and his wife Cheryl currently live in Lakeville. They are the parents of three daughters, Jennifer, Michelle and Kathryn. As circuit court judge, Crone oversees the Public Defender’s Office, Adult Probation Department, and Domestic Relations Counseling Bureau.

He is a member of the Supreme Court Committee on Character and Fitness (evaluating applicants for bar admission), the Alternative Dispute Resolution Committee of the Indiana Judicial Conference, and helped found a program in South Bend to expose minority high school students to the law and related fields. He is a founding member of the South Bend Commission on the Status of African-American Males and the St. Joseph County Coalition Against Drugs. He is a frequent speaker at legal education programs.

“A number of extremely qualified people were considered for this open seat on the Court of Appeals,” Kernan said. “It’s just further evidence that we have an abundance of talented men and women in our state.

“Finally, I would like to thank Judge Brook for his many years of service to Indiana,” Kernan added. “Hoosiers have valued his sound judgment and dedication to the judicial system. I wish him well in his future endeavors.”

Posted by Marcia Oddi on Wednesday, February 18, 2004
Posted to Indiana Decisions

Indiana Law - Another Take on Governor's Race Issues

"Indiana Governor’s Race Turns to Issues: Triple Es – education, energy, and economy – fuel the campaign," is the headline to this story dated Monday, Feb. 16 in the on-line news magazine, Indianapolis Eye.

Posted by Marcia Oddi on Wednesday, February 18, 2004
Posted to Indiana Law

Indiana Law - Updates on Earlier Legislative Entries

Time. "Indiana time falls in twilight zone: Politicians wind up and make another pitch for Hoosiers to accept daylight-saving time," is the headline to this story today in the Indianapolis Star. Some quotes:

Rep. Chet Dobis, D-Merrillville, introduced a resolution last week that would have most of Indiana observe daylight-saving time in the Central time zone. He hopes to bring the issue to a vote in the House on Thursday.

"My objective is uniformity, 365 days a year -- with Chicago," says Dobis. (Merrillville is near Chicago and already observes Central Daylight Time in the summer months.) The state could exempt five southeastern Indiana counties and let them stay in the Eastern time zone.

House Speaker B. Patrick Bauer, who could prevent the resolution from being voted on by the House, is cool on the subject. "Not too many people in my district are happy about it," says Bauer, a South Bend Democrat. "I don't see advantages or disadvantages." He says it's "really up in the air" whether there will be a floor vote on Dobis' resolution.

Hoosiers have been fighting over how to set a clock for more than 50 years, the daylight-savers losing every time. But this time, both major gubernatorial candidates, Democratic incumbent Joe Kernan and Republican Mitch Daniels, have weighed in on daylight time, both in support, both leaning away from Eastern time and toward Central. Eric Miller, who's also seeking the Republican nomination, has said he'd put the matter up for a referendum.

The story includes a good side-bar showing how the actual times of Sunrise and Sunset would correspond with the various combinations of Daylight v. Standard time and Eastern v. Central time.

Another story in today's Star, labeled "A brief history of time (in Indiana)," gives just that (which was also covered in the Indiana Law Blog entry of Feb. 4, 2004. See also our Feb. 9 and Feb. 12 entries.

One thng I remember, but the Star doesn't mention, is that sometime in the mid-to-late '60s the General Assembly passed a law saying that the "official time" in Indiana corresponded with the federal law. The clock that you still see when you enter the StateHouse from the main west door was labeled "Official Indiana Time" and followed the law. The rest of the State, including the rest of the StateHouse, however, followed Indiana's traditional time variations.

[See also this 2/19/04 Star editorial: "We've been frozen in time long enough."]

Seatbelts. "An effort to extend Indiana's seat belt law to pickups and SUVs stalled Tuesday in the Indiana House," is the lead to this story in today's Star. More:

It's an election year, and legislators in competitive districts could be in peril if they have to vote on controversial issues that result in major changes to state policies. The entire House is up for re-election in November, and Democrats are trying to cling to their 51-49 majority.

Also suffering the same fate Tuesday as the seat belt bill were proposals that would toughen Indiana's open container law and shut down Internet gambling sites.

See the earlier IBL seat belt entry here.

[See also this 2/19/04 Star editorial: "Buckling under with lives at stake."]

Guns. This Star story reports:

An Indiana Senate committee on Tuesday scaled back a proposal that would protect gun owners from lawsuits over injuries or deaths caused by their weapons.

House Bill 1349 would have provided the nation's most sweeping protections, and safety groups had warned that Hoosiers no longer would be held responsible for failing to safeguard their guns.

As amended Tuesday, the protections would apply only to owners of weapons that had been stolen and misused, causing injuries or deaths. The bill is headed for a vote next week in the Indiana Senate.

See the earlier ILB entry here.

Posted by Marcia Oddi on Wednesday, February 18, 2004
Posted to Indiana Law

Indiana Decisions - Three Court of Appeals Opinions Posted

Mark Polinsky, et al. v. Frank Violi (2/18/04 IndCtApp) [Employment; Arbitration; Contracts]

Appellants-defendants Mark Polinsky and Allen Sutker (collectively, the appellants) appeal the trial court’s denial of their motion to compel arbitration between TotalEMS and appellee-plaintiff Frank Violi. Specifically, the appellants argue that they are in privity with TotalEMS and that Violi’s claims against them arise solely from TotalEMS’s alleged breach of Violi’s Employment Agreement (“Agreement”), which requires him to arbitrate “all disputes” that arise from his employment terms. Finding that the appellants stand in privity with TotalEMS and that these disputes arise out of the Agreement, we reverse the decision of the trial court.
Thomas Van Etten v. Kosta L. Fegaras, et al. (2/18/04 IndCtApp) [Criminal Law & Procedure] [Civil Procedure]
We recognize that under the federal summary judgment standard that was proposed by Fegaras and the Steakhouse in their second motion for summary judgment and apparently employed by the trial court in granting that motion, this case would be a good candidate for summary judgment. Under the federal standard, “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Sedwick, 92 F. Supp. 2d at 816. Thus, if it appears unlikely that the non-movant will win the case, summary judgment may be granted in federal court.

However, the Indiana standard sets a higher bar in order to win summary judgment. It is entirely the burden of the movant to demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence. Little Beverage, 777 N.E.2d at 77-78. Additionally, we construe the evidence liberally and in a light most favorable to the nonmoving party. Id. There is no requirement that the non-movant produce sufficient contrary evidence to allow the possibility that he will win his case. He merely must show that there is some admissible evidence that creates a genuine issue of material fact to prevent the trial judge from granting summary judgment in an Indiana court. As demonstrated above, Van Etten has carried that burden in this case.

We therefore reverse the decision of the trial court and remand the cause to the trial court for further proceedings consistent with this opinion.

Jeremy L. Vennard v. State of Indiana (2/18/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Wednesday, February 18, 2004
Posted to Indiana Decisions

Tuesday, February 17, 2004

Indiana Decisions - One Court of Appeals Decision Posted Today

Strack and Til, Inc. v. Sharon Carter (2/17/04 IndCtApp) [Torts]
Ratliff, Senior Judge

At around midnight on October 31, 1998, Carter entered Strack’s store to pick up some groceries. As Carter proceeded around the corner of an aisle to procure a box of cereal, she slipped and fell to the floor. Carter sustained numerous injuries, and she brought suit against Strack on the basis that Strack’s negligence caused her fall. The jury found that Strack was ninety-percent at fault and awarded Carter $504,000.00 in damages. Strack now appeals.
The court here affirms the trial court, saying it committed no reversible error. An interesting footnote:
We agree with Judge Miller’s observation that the provision of Evid.R. 407 allowing a witness to be impeached by the party calling him “carries the seeds of the Rule’s self-destruction.” Indiana Practice: Courtroom Handbook on Indiana Evidence § 407.101, p. 499 (2000 ed). We further agree that “the trial court must carefully apply the relevancy test of Rule 401 and the balancing test of Rule 403 to evidence purportedly offered for a purpose other than that forbidden by Rule 407.” Id. at 500. There was no request in the present case that the trial court make such an application. We will not do so sua sponte.

Posted by Marcia Oddi on Tuesday, February 17, 2004
Posted to Indiana Decisions

Law - NY upholds law to compel mentally ill to comply with treatment

The AP is reporting this afternoon:

The state's highest court on Tuesday upheld "Kendra's Law," which allows caseworkers, family members and even roommates to seek a court order to force a mentally ill patient to comply with treatment.

At least 40 other states have similar statutes, according to Tuesday's Court of Appeals decision. The law was named for Kendra Webdale, 32, who died in January 1999 after she was pushed in front of a New York City subway train by a schizophrenic who did not take his medicine.

Access the opinion, In the Matter of K.L. (Anonymous), here. As for whether Indiana has a version of "Kendra's Law" - I located this article that categorizes Indiana and other states based on a report.

Posted by Marcia Oddi on Tuesday, February 17, 2004
Posted to General Law Related

Environment - States concerned that EPA Rules on Emissions from Diesel-Fueled Trucks and Buses May be Delayed

This story in the Washington Post reports that state air pollution officials are worried that:

the nation's trucking industry is trying to delay an Environmental Protection Agency rule that is supposed to clean up emissions from diesel-fuel engines used in trucks and buses. The EPA put out the final rule in January 2001. It doesn't start going into effect until 2007, but state air guardians are rattled because they say they have seen industry groups seek help before in recent years to weaken environmental regulations.
(This is the third entry I've posted this morning, and all three relate to motor vehicles - interesting.)

Posted by Marcia Oddi on Tuesday, February 17, 2004
Posted to Environmental Issues

Law - Online company gives advice on parking tickets

This story today in the Washington Post is about ParkingTicket.com, "the first Internet company to help drivers contest parking tickets online." A quote:

On the ParkingTicket.com Web site, clients who get tickets in the District, New York or San Francisco are guided through 30 to 50 questions about the circumstances of their tickets -- whether the meter was broken, what the parking sign said, did they have a medical emergency, etc. They transfer details from the ticket to a look-alike online version. Then they key in their credit-card data to pay for the service -- if the ticket is dismissed. No dismissal, no charge.

ParkingTicket.com's computers analyze the data in search of grounds for dismissal. If there are none, clients get an e-mail recommending that they pay the ticket promptly. It's free advice. But if the computer finds a loophole, technicality or error, or a compelling reason to contest, the client is e-mailed a customized dismissal-request letter, with instructions on what proof to attach and where to mail it.

Because her car was disabled, Austin's ticket was dismissed. ParkingTicket.com charged her half of what the ticket would've cost her -- $25. Case closed.

More from the story:
Glen Bolofsky, founder and president of ParkingTicket.com, says drivers increasingly are turning to his Web site for help. When his site launched its toll-free phone service two weeks ago in New York, 1,000 calls came in the first day. Phone service for the District and San Francisco will be up soon, he says.

Determined to beat City Hall, practically obsessed, Bolofsky says people are fed up with unfair parking tickets and ever-increasing fines. "People here in New York City and in major cities throughout the country, like in Washington, D.C., have very limited places to park," says Bolofsky, whose corporate headquarters is in Paramus, N.J. "But instead of fixing the real problem , the cities found a whole new way to print money by issuing parking tickets." * * *

Bolofsky says ParkingTicket.com, whose brain trust includes a former judge, traffic agents and police officers, gets 75 percent of the tickets submitted dismissed or reduced. "The real reason why most tickets are dismissed is because the law allows it," says Bolofsky. "But people don't know the rules. They don't know technically if they are guilty or not."

Here is the ParkingTicket.com website.

Some observations:

Indianapolis' parking tickets are currently $12.00, rather than the $50.00 apparently charged by New York, Washington, D.C. and San Francisco, where ParkingTicket.com operates.

The bottom of each page of the Washington Post story contains "google-generated" links to advertisers who pay Google to place their ads on topic-related Post stories, per a Google arrangement with the Post. These may be randomly-generated if Goggle has a number of ads related to the story (i.e. there may be different ads each time you reload the page). The ads that appeared with my hit included one for a lawyer in New York City who fights traffic tickets and represents taxi drivers and one that says "Why go to court? Fight your CA traffic ticket from home."

Posted by Marcia Oddi on Tuesday, February 17, 2004
Posted to General Law Related

Indiana Law - Seat Belt Law May be Extended to Pickups, SUVs and Back Seats

"Changes urged in seat belt statute: House committee will vote on measure that would remove pickup exemption," reads the headline to this story in the Indianapolis Star this morning. Some quotes:

Today the committee is expected to vote on Senate Bill 40, which would remove the pickup exemption from Indiana's 1991 seat belt law. * * *

Indiana and Georgia are the only states that exempt those in pickups from wearing their seat belts. A recent Indiana Court of Appeals decision extended that exemption to SUVs whose owners have chosen to register the vehicles as trucks rather than cars.

In addition to requiring those who ride in trucks and SUVs to wear seat belts, the bill would require those who ride in the back seat of a car to buckle up. Now, the law applies only to those who ride in the front seat. Breaking that law would continue to be an infraction of $25. * * *

Changing the law to require that seat belts be worn in pickups has met resistance from farmers who said they shouldn't have to buckle up each time they get in and out of their trucks while doing farm work. The proposal has also drawn scattered opposition from Hoosiers who say they object to more government interference in their lives.

Rep. Markt Lytle, D-Madison, said his committee may make changes today to give it a greater chance for success when considered by the full House. Legislators are talking about keeping "primary enforcement" for front seat violations -- which means law enforcement can stop motorists solely if they spot a seat belt violation. Legislators are thinking about designating back seat -- and maybe truck -- violations as "secondary enforcement," which means motorists can be ticketed for a seat belt violation only if they are stopped for some other reason.

Access SB 40 information here. As reported by the Star, the bill is currently in House Committee in this version.

Here is the Indiana Law Blog's October 5, 2003 entry on the Indiana Court of Appeals ruling that the seat belt law does not appy to vehicles with truck plates, including SUVs. [This entry is on the old site; use your browser back key to return.]

Posted by Marcia Oddi on Tuesday, February 17, 2004
Posted to Indiana Law

Monday, February 16, 2004

Indiana Decisions - Latest decisions posted by courts

Valentin Jaramillo v. State of Indiana (2/11/04 IndCtApp) [Criminal Law & Procedure]

Tyler Lawson v. State of Indiana (2/11/04 IndCtApp) [Criminal Law & Procedure]

Indiana Department of Environmental Management v. Boone County Resource Recovery Systems (2/16/04 IndCtApp) [Administrative Law]

Involves application of good character law and definition of "responsible party" in a permit denial. Court here holds that the trial court erred when it reversed the OEA’s grant of summary judgment.

Michael Weiss d/b/a Weiss & Company, Inc., et al. v. Warren Harper, et al. (12/4/03 IndCtApp) [Contracts]

Don R. and Dale R. Lowe v. Department of Local Government Finance (2/13/04 IndTaxCt) [Valuation of Real Property; Not for Publication]

Posted by Marcia Oddi on Monday, February 16, 2004
Posted to Indiana Decisions

Law - "Shared-in-savings" contracts tried by feds

This story today in the Washington Post talks about the federal government's venture into a new contract model. Some quotes:

The Bush administration is encouraging cash-strapped government agencies to fund expensive technology upgrades essentially by handing out IOUs: Consulting companies agree to build computer systems now, and the agencies promise to pay later with the money they save by using modern systems. If an agency does not save any money, it does not pay. It is a good deal for government and a risky, but potentially lucrative, bet for technology companies.

That, according to government officials, is exactly the point. With major modernization projects at such agencies as the Internal Revenue Service, the Federal Aviation Administration and the FBI stretching out years longer than planned and coming in millions of dollars over budget, rewarding contractors only for results, not their effort, is long overdue, they say. In fact, the "share in savings" contract model is the culmination of a shift in the government's attitude toward buying goods and services that began two decades ago. Before, the government searched for the cheapest widget; now it looks for the best one.

"The traditional way is low risk and low profit for the contractor and high risk to the government," said Steven Kelman, a public management professor at Harvard and former chief of procurement policy under President Bill Clinton. But share-in-savings contracts are the opposite, said Kelman, who likens payments under the novel agreements to the contingency fees of trial lawyers.

In theory, the idea seems like a win-win solution. Poor agencies can ask huge computer services companies to foot intimidating upfront costs, and the companies get business that otherwise would not exist. A successful project will yield savings, and thus guaranteed revenue for several years for the contractor. The companies build in fatter profit margins when negotiating with the government, to compensate for the delay in payment and the possibility that a project may bomb.

But in practice, the concept has proved tricky to sell.

Although states have long used these deliver-now, pay-later contracts to buy automated tax systems -- the contractor collects a fee for every tax return processed -- the federal government has employed this type of contract only a few times to fund technology upgrades. Congress granted agencies the authority to use the contract model in 1996, but budget surpluses created few incentives to try it then. In fact, no one in the government is tracking how much agencies are spending under these contracts.

Here on more stories on this approach, from GovExec.com, Government Computer News, Washington Technology, and the Tallahassee Democrat.

Posted by Marcia Oddi on Monday, February 16, 2004
Posted to General Law Related

Indiana Law - State Sex Offender REgistry Not Yet Comprehensive

"State sex-offender registry still missing many names: Lacking manpower, funds, some counties struggle to track down convicts after release," is the headline to this story this morning in the Indianapolis Star. The source is the Muncie Star Press, which ran two stories on the topic last Friday, this lengthy piece, and this backgrounder.

Posted by Marcia Oddi on Monday, February 16, 2004
Posted to Indiana Law

Law - Same-sex marriage and conflicts of law issues

"Same-Sex Marriage Raises Legal Questions," is the title of this comprehensive legal analysis published yesterday in the Washington Post Sunday Outlook section by Lea Brilmayer, the Howard Holtzmann Professor of International Law at Yale University School of Law, and the author of several books on conflict of laws issues.

[More: 2/18/04] The Indiana Digital Student editoralizes today (access it here) on the efforts of some members of the Indiana General Assembly to amend Indiana's state constitution to ban same-sex marriages.

The NY Times today has this lead editorial that begins: "Lately it has seemed as if gay marriage was taking over the national policy debate."

Posted by Marcia Oddi on Monday, February 16, 2004
Posted to General Law Related

Sunday, February 15, 2004

Environment - Followup on Coal Ash; More on Mercury

The Gary Post-Tribune has a lengthly story today on the contamination of water wells in the Town of Pines, titled "Arsenic, boron, lead, manganese." (Unfortunately, the Tribune takes down its stories at the end of each day, so few of you will have a chance to read it.) Some quotes about the history of the area:

More than two decades ago, ash ponds at NIPSCO’s Michigan City generating station were overflowing with coal ash, a waste product from burning coal in power plants. Roughly 1 million tons of the waste was moved to Brown’s Yard 520 in the Pines. “The ash ponds were intended to be temporary holding areas for ash as permitted by IDEM,” said NIPSCO spokeswoman Regina Biddings in an e-mail.

Jeff Stant, a coal consultant for the Clean Air Task Force, has another theory. Testing in the late 1970s and early 1980s at the Michigan City plant revealed arsenic levels at 500 times today’s EPA standard, Stant said. Stant said his figures come from a 1988 report presented to Congress by the EPA. “They started dumping it out in nearby hamlets,” Stant said. “I definitely suspect Beverly Shores got a good bit of it, too. It appears they were just engaging in a shell game.”

The waste was transported to the Pines with the permission of IDEM, Biddings said.

It wasn’t until 1983 that Yard 520 was licensed by the state to receive power plant waste. Before that, regulations for the waste didn’t exist, said Amy Hartsock, public information officer for IDEM. IDEM itself wasn’t formed until the mid-1980s. Prior to then, the Indiana Department of Health oversaw environmental issues, Hartsock said.

NIPSCO also rids itself annually of 200,000 tons of fly ash to the concrete industry, Biddings said.

Besides the landfill, low areas of the community were filled in with fly ash. To complicate matters, the ash material is in back yards, under driveways, and forms the base of roads snaking through the town. The ash was dumped there at a time before regulations and before people knew what the ash could do.

“Prior to 1974, people were taking their garbage to the dump and setting it on fire. Our methods of disposal weren’t really sanitary,” said Bruce Palin, deputy assistant commissioner for IDEM’s office of land quality. “Industrial waste didn’t get a lot of attention until later,” he said. “They had this ash; it looked like black sand. It was innocuous looking. They said, 'This makes great fill because it’s similar in consistency to sand there.’”

State and federal environmental officials discovered on the Brown property deposits of ash that pre-dated the permitting process. That ash was not within the boundaries of the landfill, Palin said. “At the time we issued the permit in 1983, I don’t believe we were aware of this ash material at the boundaries of the property,” Palin said. “Monitoring wells on site weren’t established to monitor (the) other ash area,” he said.

An earlier ILB entry on this topic was published Feb. 10 - scroll down to read it.

[Update 2/16/04] Today's Indianapolis Star's top story is headlined "Indiana lets feds deal with mercury: Critics decry lack of action by state to cut emissions." A quote:

Indiana power plants released 5,728 pounds of mercury into the air in 2001, the fourth-highest amount in the United States, according to the most recent federal emissions figures.

But state officials say the responsibility for curbing those emissions should fall on the federal government's shoulders, not the state's.

"We really have been focused on participating in the development of a national policy," said Janet McCabe, assistant commissioner for the office of air quality at the Indiana Department of Environmental Management.

The U.S. Environmental Protection Agency recently proposed new rules that would cut mercury emissions 29 percent by 2007 and 70 percent by 2018. But environmental groups and some states say the regulations won't do enough to reduce the toxic pollutant and are likely to face legal challenges, which could delay implementation.

[Update 2/17/04] The Indianapolis Star has this editorial today titled "Don't wait to attack mercury pollution." A quote:
Indiana is one of those worst cases, ranking fourth in the amount of mercury emissions, thanks mainly to its reliance on coal-fired power plants for generating electricity. Yet the Indiana Department of Environmental Management says it will content itself with contributing to the Bush administration's development of a national policy. Now in its proposal stages, that policy has been criticized by environmental groups and some states as taking too long to reduce a toxic chemical linked to brain, kidney and fetal damage. Even when finalized, it is expected to be delayed in implementation by legal challenges.

Posted by Marcia Oddi on Sunday, February 15, 2004
Posted to Environmental Issues

Not Law but Interesting

"As Tobacco Fades, Barns Wilt," is the headline to this interesting feature story today in the Washington Post. A quote:

Some people can't imagine the landscape without old tobacco barns -- whether a bright red box popping out of a field in Virginia or an open barn up on a hill by the water in Southern Maryland, there to catch the winds that would cure the tobacco leaves and, in the old days, provide an easy slope for rolling the barrels down to the wharf. Sun glints off the tin roofs and casts angular shadows. Ivy creeps up the walls like flourishes of calligraphy on the wood.

Posted by Marcia Oddi on Sunday, February 15, 2004
Posted to General News

Saturday, February 14, 2004

Environment - More on Fort Wayne's Slater Steel Site

This Feb. 2, 2004 ILB entry referenced a story in the Fort Wayne News-Sentinel on Slater Steel and the possibility of the Indiana Department of Environmental Management placing a $500,000 cap on the site's future cleanup costs. I ended the entry with this: "The story does not discuss whether the "cap" would mean that no future cleanup would be required beyond that amount, or that future costs beyond that amount would paid by the taxpayers, rather than by the company."

This story Friday, Feb. 13th in the Fort Wayne Journal Gazette provides a partial answer, along with the good news that the site has found a buyer:

The Fort Wayne city government will offer about $500,000 in economic incentives such as tax abatements, environmental cleanup assistance and infrastructure grants. The incentives will be performance-based and hinge on meeting employment and investment goals, Young said.

In addition, the state could help Valbruna with workforce training and other assistance, Young said.

The century-old Slater plant has soil and groundwater contamination because of the industrial nature of the operation, said Amy Hartsock, spokeswoman with the Indiana Department of Environmental Management. Slater has been cleaning up the site for several years.

Based on a proposed agreement, IDEM will cap Valbruna's cleanup costs to $500,000 to encourage the company to continue the cleanup operations, Hartsock said. If cleanup costs exceed that amount, IDEM would work with Valbruna to find additional financing to pay for the cleanup, she added.

Despite the proposed agreement, IDEM has the right to seek cleanup damages from parties that contaminated the property before Valbruna's purchase.

Also of interest is this "Look Back" at the Slater site, where steel has been made for over 100 years, from the News-Sentinel.

[Update] Here is the IDEM press release, issued Feb. 13, 2004. A quote:

Under the agreement with IDEM, which is expected to be executed early next week, Valbruna is required to set aside $500,000 to clean up existing environmental problems. IDEM will work with the new owner to find funding sources for long-term cleanup needs. The agreement does not release the parties that caused the contamination from the requirement to pay for cleanup in the future. * * *

In its agreement with IDEM, Valbruna commits to take action to renew operation at the plant and to operate for at least three years. The agreement requires Valbruna to submit a proposed scope of cleanup work to IDEM within 180 days of signing the final paperwork to own the plant. The company has another 120 days after IDEM approves that scope of work plan to submit a remediation work plan. IDEM will work with the company to monitor cleanup activities to ensure goals are met.

I have contacted IDEM for a copy of the agreement document itself. I hope to post it here.

Posted by Marcia Oddi on Saturday, February 14, 2004
Posted to Environmental Issues

Law - More on electronic voting machine

Here are a couple interesting stories I've run across recently on electronic voting machines: This story in the Baltimore Sun reports that officials in Maryland are having trouble recruiting election judges and attribute the trouble to touch-screen voting systems:

Officials around the region are trying to recruit new election judges. But they're also fighting to retain longtime judges by convincing them that managing a precinct full of computer voting machines won't be too challenging.

Top election officials say the hardest sell has been to senior citizens such as Ruggles who never warmed to computers. Retirees comprise the most reliable labor pool for elections officials -- some estimate the average election judge age at 70 -- though they aren't the only ones reluctant to embrace the new voting system. "It's scaring the heck out of people," says Barbara Fisher, the election director in Anne Arundel County. "It's a real problem all across the state."

This story in the SF Chronicle is headlined "More voters to use electronic voting systems, but reforms not enough." It points to a study by Election Data Services "of voting equipment used by election jurisdictions across the United States shows that just over 50 million registered voters are expected to cast ballots on electronic equipment this fall. Another 55 million voters will be using optical scan systems, while 32 million will still be using punch cards." You may also want to take a look at the Election Data Services (a political consulting firm specializing in redistricting, election administration, and the analysis and presentation of census and political data with GIS) main site for additional interesting material.

Finally, here is a cautionary opinion piece published in the Kansas City Star, headed "Opponents of change a threat to electronic voting."

[Update] Here is a story from Florida titled "State bans recounts of touch-screen ballots." Access it here from the Sun-Sentinel [link via How Appealing]. The lead:

State elections officials banned any attempt to recount votes cast on touch-screen voting machines Friday, reversing an earlier decision as counties prepare for the presidential primary less than a month away.

During the recount of January's close legislative election in Broward and Palm Beach counties, the state decided to leave it up to each county whether to print out images of each ballot from the voting machines.

But that led to concern among county officials that candidates could challenge election results and lead to uncertainty if each county handled a recount differently during a major election. The U.S. Supreme Court ruled at the end of the 2000 election that the differing standards used in Florida's highly watched recount violated the Constitution.

Under its new ruling, the state Elections Division concluded that counties are not permitted to print out ballots. State law requires uniform standards and sets none when it comes to counties with touch-screen ballots because there is no way to discern voter intent other than what is registered on the computer, the state concluded.

Posted by Marcia Oddi on Saturday, February 14, 2004
Posted to General Law Related

Friday, February 13, 2004

Indiana Decisions - Three Court of Appeals Opinions Posted Today

State of Indiana v. Joseph Molnar (2/13/04 IndCtApp) [Criminal Law & Procedure]

The State brings this interlocutory appeal to challenge the trial court’s granting of Joseph Molnar’s motion to suppress results from a breath test. * * *

We, therefore, conclude that the trial court’s decision to grant the motion to suppress was an abuse of discretion. Sufficient foundation for the test results was established to render the test results admissible.

Conclusion. We conclude that the trial court’s decision to grant the motion to suppress was an abuse of discretion because it contravenes the plain language of the regulation. We reverse.

Don Merritt v. State of Indiana (2/13/04 IndCtApp) [Criminal Law & Procedure]

Michael Shirley v. State of Indiana (2/13/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Friday, February 13, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer List for Week Ending Feb. 13, 2004

Here is the Indiana Supreme Court's transfer list for the week ending Feb. 13, 2004.

Posted by Marcia Oddi on Friday, February 13, 2004
Posted to Indiana Transfer Lists

Indiana Law - Lilly Trial Goes to Judge

Following up on our Feb. 8 entry about this trial (scroll down), the Indianapolis Star reports here this morning:

A federal trial over the validity of Eli Lilly and Co.'s most valuable patent ended Thursday with a Lilly attorney describing the stakes in stark terms to the judge. * * *

Closing comments before U.S. District Court Judge Richard L. Young lasted about three hours and summarized testimony from some two dozen witnesses and more than 500 exhibits entered into evidence during the trial in the federal courthouse Downtown. The case began about 21/2 years ago when Lilly sued for patent infringement the first of three generic drug firms that have sought approval to sell non-brand versions of Zyprexa in the United States.

A quick ruling by the judge isn't likely in the nonjury case. Both sides want to submit post-trial briefs to the judge, summarizing the voluminous trial evidence. After attorneys agreed Wednesday to a schedule that would see the final post-trial brief filed June 4, Lipsey told Young Thursday that Lilly wants that schedule shortened. He said a stay order expires March 30 that prevents one of the generic firms from selling generic Zyprexa while the infringement case is ongoing.

Because "I cannot leave Lilly exposed" to possible generic competition after March 30, Lipsey said he wants briefs filed before then. Young ordered both sides to agree by Feb. 20 to a new schedule for submitting post-trial briefs or he will set the dates himself.

[Update 2/16/04] "Lilly fared well in trial, analysts say," is the headline to this story in the Business Section of the Indianapolis Star. The lead:
The generic drug firms that want to undercut Eli Lilly and Co.'s chief asset, its U.S. patent on Zyprexa, went into trial against Lilly knowing they had a high legal hurdle to jump: Present "clear and convincing" proof to the judge that the patent is invalid. They failed to clear that hurdle, according to two patent attorneys who were among a small number of experts paid to follow the three-week case for investors.

Posted by Marcia Oddi on Friday, February 13, 2004
Posted to Indiana Law

Thursday, February 12, 2004

Law - Another Circuit Weighs in on the Interstate Sale of Wine

The 2nd Circuit today in a long-awaited ruling upheld the challenged New York restrictions against the direct shipment of wine to New York consumers by out-of-state wineries and retailers. The Court said:

We do not approach this case with a blank slate. Five other circuits have decided similar cases; a common thread runs throughout. Each challenged a state regulatory scheme that prohibited out-of-state wineries from importing and selling wine directly to consumers, but permitted local wineries to avoid the three-tier distribution system with direct sales to consumers. Four circuits have struck down the regulatory schemes in question, utilizing a two-step analytical framework, similar to that used by the district court here, in which the statute is first examined in the context of the dormant Commerce Clause. Heald v. Engler, 342 F.3d 517, 524 (6th Cir. 2003); Dickerson v. Bailey, 336 F.3d 388, 400 (5th Cir. 2003); Beskind v. Easley, 325 F.3d 506, 514 (4th Cir. 2003); Bainbridge v. Turner, 311 F.3d 1104, 1108 (11th Cir. 2002). * * *

A second mode of analysis recognizes that “[b]oth the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution,” and considers each “in the light of the other, and in the context of the issues and interests at stake in any concrete case.” * * * We adopt this approach acknowledging that only one other circuit court has employed it in a similar case. See Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000) (upholding an Indiana statute restricting the direct shipment of wine on the ground that it was a permissible expression of the state’s authority under section 2 of the Twenty-first Amendment).

Access the 2nd Circuit opinion here: Swedenburg v. Kelly.

[Update 2/13/04] The NY Times has a very brief story on the decision this monring. A somewhat longer story appears here in Newsday.

A story published Feb. 12, 2004 (but before the NY decision was announced) in the San Franscisco Chronicle, reports:

The battle over direct-to-consumer wine shipping may be headed for the big leagues -- the Supreme Court of the United States.

On Jan. 30, Michigan petitioned the high court to overturn a ruling that would let Michiganders order wine from out of state and have it delivered to their homes -- something that seems perfectly innocent to us here in California, but which is illegal in 24 states and a felony in seven. Prohibitions on direct shipping have been the subject of lawsuits in 11 states, but this is the first serious run at the high court. * * *

Pro-shipping forces hope the Supreme Court won't take the case and leave their appellate victory standing. They also want more time to build on their successful record -- four out of the five appeals courts that have heard anti-shipping cases have found the laws discriminatory, while several additional state legislatures, seeing the direction the courts were taking, have passed laws allowing interstate wine deliveries.

In just the last few months, wineries and enophiles have filed new lawsuits in Ohio, Rhode Island, New Jersey and Arizona. A New York court has ruled against that state's shipping ban and last month, shortly after meeting with Wine Institute president Robert Koch and several California wineries, Gov. George Pataki issued a proposal to legalize interstate shipping.

Here are links to some earlier IBL interstate wine entries [on old site, user browser back key to return], latest first: 12/22/04, 9/15/03, 8/29/03.

[Update 2/14/04] Here are stories from the LA Times and Wine Spectator.

Posted by Marcia Oddi on Thursday, February 12, 2004
Posted to General Law Related

Indiana Law - Update on Time Issue

Updating our Feb. 4th and Feb. 9th Indiana Law Blog entries on Time in Indiana (scroll down), the Indianapolis Star this afternoon is carrying this AP story that reports:

A leading lawmaker expects the House to vote next week on a resolution asking the federal government to move most of Indiana to the Central time zone and have it observe daylight-saving time. Rep. Chet Dobis, D-Merrillville, said today that he senses more legislative momentum now behind making a time switch than there has been in his 34 years in the General Assembly. He also said he believed the resolution would pass. * * *

Dobis said the resolution would ask the U.S. Department of Transportation, which regulates time zones, to move all but five counties in southeastern Indiana to the Central time zone. He said the agency would then hold field hearings in the state and consider moving the time zone boundary.

Apparently Dobois' concurrent resolution is not yet available. [A concurrent resolution is a simple resolution that is passed by both Houses, and accordingly represents the majority opinion of the General Assembly. It may be referred to a committee, but is generally adopted or rejected upon introduction, by a voice vote. It is unlike a Joint Resolution, which is mentioned in the Constitution and observes all formailites except presentment to the Governor (Art. 4, ss. 18, 25). The use of the joint resolution is generally reserved to proposing or agreeing to amendments to the Constitution.]

As explained in an rtv6 story earlier this week:

A resolution, if it passes the House and Senate, would ask the federal Department of Transportation to hold hearings on the issue. If the federal government determines that Hoosiers prefer Central time, it could put Indiana in the Central zone. Indiana law already stipulates that any county observing Central time must also observe daylight-saving time.
Here is precisely what the current Indiana law, IC 1-1-8.1, provides:
Sec. 1. This state hereby exempts itself from observation of advanced time between 2 a.m. of the first Sunday in April and 2 a.m. of the last Sunday in October in each calendar year.
(Formerly: Acts 1972, P.L.7, SEC.1. As amended by P.L.3-1989, SEC.1.)

Sec. 2. In the event that the Congress of the United States or the Department of Transportation should permit any state which is divided by a time zone line to exempt less than a whole state from the observance of advanced or Daylight Savings Time, then in such event this chapter shall not apply to that portion of the State of Indiana that is in the Central Time Zone.
(Formerly: Acts 1972, P.L.7, SEC.1.)

Posted by Marcia Oddi on Thursday, February 12, 2004
Posted to Indiana Law

About this Blog - Indiana Law Blog in Good Company

The Indiana Law Blog is in good company this morning. An article by legal technology expert Dennis Kennedy, titled "2004 Legal Technology Trends: Do We Stand on the Threshold of the Next Legal Killer App?" (available here), includes this mention:

4. Blawgs and RSS Feeds. How many of these names are familiar to you? "Ernie the Attorney," "Bag and Baggage," "NetLawBlog," "Inter Alia," "beSpacific," "LawTech Guru," "ethicalEsq?", "tins," "My Shingle," "The Trademark Blog," "George's Employment Law Blog," "GrepLaw," "LawSites," "Stay of Execution," "How Appealing," "The Indiana Law Blog," "Copyfight," and "DennisKennedy.Blog."

These are names of a relatively small sampling of the blawgs that have given the legal profession a new and vibrant image among the growing number of influential opinion-leaders who have flocked to the world of blogging. A blog, as you may know, is a new kind of content-focused web site, typically built with blog authoring software, that displays new content as postings or articles in a reverse chronological order. They are cheaper, easier and, arguably, more effective than most standard web sites. * * *

[Link via How Appealing]

Posted by Marcia Oddi on Thursday, February 12, 2004
Posted to About the Indiana Law Blog

Indiana Law - "Bill targets suits against gun owners"

"Bill targets suits against gun owners: Passage would eliminate most civil liability cases," is the headline to this front-page story this morning in the Indianapolis Star. Some quotes:

Indiana lawmakers want to grant gun owners almost complete protection from lawsuits -- an effort that has alarmed national safety groups and local advocates who say Hoosiers should be held responsible if they don't take reasonable steps to safeguard their weapons.

House Bill 1349, which is expected to be considered today in a Senate committee, would give Indiana the most sweeping gun immunity law in the country, according to the Washington-based Brady Center to Prevent Gun Violence. * * *

This legislation seeks to undo an April 2003 Indiana Supreme Court decision in which the five justices unanimously said gun owners must safely store their firearms or could be held liable for failing to do so.

Under HB 1349, only gun owners who give their gun to someone else -- and know that the person is going to commit a crime with it -- can be held liable. * * *

In addition to providing broad immunity to gun owners, the legislation could help the gun industry fight a pending legal challenge.

[The bill's sponsor, Senator Robert Meeks, R-LaGrange], plans to ask the Senate Criminal, Civil and Public Policy Committee to add a proposal that would halt the city of Gary's lawsuit against gun manufacturers and dealers.

This would undo another Indiana Supreme Court ruling from December. Then, the court unanimously gave the go-ahead so Gary could sue gun dealers and distributors over claims that they sold handguns they knew would end up in the hands of criminals.

After the city filed its lawsuit in 1999, the General Assembly voted in 2000 to ban lawsuits by other municipalities in the state. Meeks wants to make that ban retroactive and stop the Gary lawsuit.

The gun proposals are tucked into legislation that seeks to cut down on lawsuits by prison inmates. The broad civil immunity proposal was inserted into that legislation during a late-night session of the House last week, and the bill passed that chamber 77-4.

Access the latest printing (House-passed version) of HB 1349 here. Follow the action on the bill here.

Earlier Indiana Law Blog entries on the "April 2003 Indiana Supreme Court decision in which the five justices unanimously said gun owners must safely store their firearms or could be held liable for failing to do so" mentioned above are available (earliest first) here and here. The decision is Estate of Eryk T. Heck v. Stoffer.

The Supreme Court's December 2003 ruling allowing Gary's suit against gun dealers to proceed is City of Gary v. Smith & Wesson Corp. (12/23/03 IndSCt). The initial Indiana Law Blog entry is here, a more complete entry is here; more here.

The otherwise excellent and comprehensive Star story today unfortunately continues one error from the earlier stories by stating "After the city filed its lawsuit in 1999, the General Assembly voted in 2000 to ban lawsuits by other municipalities in the state." Is was instead a 2001 law, HEA 1043. A complete discussion of the 2001 legislation is found near the end of this earlier ILB entry.

[Note that the above links are to the old Indiana Law Blog site, and you will need to use your browser back key to return here.]

[Update] The Star's website is reporting here that "A Senate committee delayed voting on a controversial bill that would grant sweeping immunity from civil lawsuits to Hoosier gun owners."

Posted by Marcia Oddi on Thursday, February 12, 2004
Posted to Indiana Law

Wednesday, February 11, 2004

Rulemaking - Feds look at game developers for ways to enhance their online rulemaking comments process

This story today at Wired News reports that:

Sometime in the next year or so, at least 180 federal agencies will bring their websites together in a new portal that may well end up owing an important part of its utility to a constituency not generally associated with the workings of government: video-game developers. The so-called eRulemaking project seeks to dramatically increase public comment and participation in the process of crafting and drafting legislation.
If you are not aware of the current federal government project, regulations.gov, take a look. Here is the onsite description:
Regulations.gov is the U.S. Government web site that makes it easier for you to participate in Federal rulemaking - an essential part of the American democratic process.

On this site, you can find, review, and submit comments on Federal documents that are open for comment and published in the Federal Register, the Government’s legal newspaper. As a member of the public, you can submit comments about these regulations, and have the Government take your views into account.

This site is a work in progress. Here is a story from the 1/13/04 Washington Post. Some quotes:
The Bush administration's e-rulemaking project, which is being run by the Environmental Protection Agency, the Office of Management and Budget and a committee of agencies, is a multimillion-dollar replacement for the patchwork of rulemaking systems and document repositories, or dockets, that some 180 federal agencies, boards and commissions now use.

The change has created tension among the agencies over whether the choice will be to run a giant, centralized docket or one that allows agencies with highly developed electronic systems -- such as the Department of Transportation, the Food and Drug Administration and the Federal Communications Commission -- to keep what they have built and link themselves to a larger system. So far, only the first "module" of the project has been developed: www.regulations.gov, which is capable of displaying all the regulatory proposals from federal agencies and taking comments on them.

The next generation, which is under consideration, will also have to be able to display underlying studies and analyses, and offer users lots of other electronic bells and whistles for searching and retrieving documents online.

Conference discussion centered on new technology, the operation and future of the federal government's efforts to use the Internet for rulemaking, expansion of the public's role in rulemaking, and how electronic systems might be evaluated for their effectiveness.

And here is another story, published yesterday, that begins: "Lockheed Martin recently landed a $98 million contract for E-Rulemaking, which itself is one of the 24 e-government initiatives under the aegis of the Office of Management and Budget (OMB)."

Posted by Marcia Oddi on Wednesday, February 11, 2004
Posted to Administrative Law & Decisions

Law - FBI Ballistics Test Questioned by Science Group

More CSI stuff. "Study shoots holes in bullet analyses by FBI," is the headline this morning to this story in the Chicago Tribune. The lead:

A group of experts Tuesday called for an overhaul of the FBI's process of analyzing the chemical makeup of bullets to try to link them to specific crimes, citing, in part, broad overstatements examiners have made in criminal cases that had no scientific basis.

The National Research Council study said the 4-decade-old technique of analyzing the chemical content of a bullet's lead was still permissible for use in court, even before recommended changes are implemented, though such evidence at best should be considered circumstantial.

The NY Times today has this story. A quote:
After a yearlong study, a scientific panel of the National Research Council found that the Federal Bureau of Investigation's scientific method for comparing bullets was generally sound but that its examiners had sometimes overstated its reliability in court testimony and had played down the likelihood of false matches.

The F.B.I. asked the research council to conduct the independent study after a metallurgist who had worked at the bureau publicly challenged the process used for comparing and "matching" bullet fragments at crime scenes to bullets found in the possession of suspects. The study cost the bureau $300,000.

It found that although expert witnesses for the bureau had sometimes asserted in court that chemical analysis could trace a bullet fragment to a factory batch or even a single box of bullets, the data did not appear to support such a specific conclusion. In fact, millions of bullets could have similar or nearly indistinguishable characteristics, panel members said.

A 4-page summary of the report may be accessed here. The entire nearly 200-page report may be accessed here.

[Update] Here is an update to the entry Monday (scroll down) on digital evidence, an AP story titled "Digital evidence raises doubts" at CNN.com.

Posted by Marcia Oddi on Wednesday, February 11, 2004
Posted to General Law Related

Tuesday, February 10, 2004

Environment - Coal Ash

"More than 130 groups across the nation, including some from Indiana and Kentucky, petitioned the federal government yesterday to stop allowing waste ash from coal-fired power plants to be dumped where it can come into contact with drinking water supplies." This was the lead to this story today in the Louisville Courier-Journal. More:

The environmentalists point to 74 cases in 23 states where they believe ash has contaminated drinking water — including Pines in Northern Indiana, where the EPA has connected 130 homes with contaminated drinking water wells to Michigan City waterlines. The agency is seeking to connect about 200 more homes. "They've got to get some legislation to stop this stuff," said Jan Nona, a Pines resident still awaiting city water.

Industry representatives have long held that the environmentalists exaggerate the ash threat. "Certainly nobody wants to contaminate somebody's drinking water supply," said Vince Griffin, who follows environmental issues for the Indiana Chamber of Commerce. While coal ash contains trace levels of heavy metals, pollutants in most cases don't get into drinking water supplies, Griffin said. * * *

The problem at Pines predates more stringent state rules, said Tim Method, deputy commissioner of the Indiana Department of Environmental Management. But the issue has been especially controversial in Indiana, where the state allows ash to be placed in strip mines and in contact with ground water. Kentucky's General Assembly banned the practice in the 1990s.

Nat Noland, president of the Indiana Coal Council, said companies are not allowed to pollute their neighbors' drinking water supplies.

The petition also seeks to end power companies' use of unlined settling ponds that spill over into waterways. The practice is common in both states, which rely heavily on coal.

This story, headed "Boron prompts EPA emergency response - BEVERLY SHORES, NATIONAL LAKESHORE: Residential and National Lakeshore wells contaminated," appeared in the Munster Times Feb. 3, 2004. Some quotes:
Four contaminated wells in this lakeshore community have prompted the U.S. Environmental Protection Agency to take emergency response action. EPA sampling of 12 wells last month revealed that three residential wells and one owned by the Indiana Dunes National Lakeshore had concentrations of the metal boron above the agency's "removal action level" of 900 parts per billion. * * * The affected wells lie less than 2 miles to the west of Yard 520, the Pines landfill owned by Brown Inc. That landfill has been identified as a source of the town's boron contamination from fly-ash coal combustion waste deposited there by the Northern Indiana Public Service Co. Elevated levels of boron and other contaminants have been recorded in Brown Ditch, which flows east past the landfill and into another ditch emptying into Lake Michigan.
And this story today from the Munster Times reports:
Contamination of the groundwater aquifer that supplies The Pines' drinking water has been cited as one of 65 cases nationally of EPA-recognized damage from fuel waste. The EPA has determined that power plant flyash dumped at Yard 520 is a source of the contamination, and the location is an EPA Superfund cleanup site.
A story in the Gary Post Tribune Feb. 3 (unfortunately no longer available) reported that "A landfill filled with more than 1 million tons of coal ash — and a 1970s road program that used the ash as a road base — are being blamed" for the Pines problem. Meanwhile, this story from the Terre Haute Tribune Star reports that:
Motorists along U.S. 41 will still see a lot of work continuing this spring on the first phase of the bypass. "We still have dirt fill to put in" between U.S. 41 and Woodsmall Road, said Brad Thompson, area engineer for INDOT's Crawfordsville District. "We have brought the fill up to ground level and have a good base, but we still have fill to put in." In addition, fly ash, a coal byproduct, will be used in a test site on a bridge embankment, he said. [emphasis added]
[Update 2/11/04] Some quotes from this story today in the Louisville Courier Journal:
The U.S. Environmental Protection Agency is putting off a decision on any new rules for dumping coal ash in old mines for at least 18 months and said states may be doing a sufficient job in regulating ash disposal in landfills and ponds. * * *

A statement from the EPA addresses the practice of putting ash in old mines separately from disposing of the material in landfills or sending it to settling ponds. Several southwestern Indiana coal mines accept the ash, while the practice is limited in Kentucky because of more stringent state restrictions aimed at protecting ground water from trace amounts of heavy metals.

Posted by Marcia Oddi on Tuesday, February 10, 2004
Posted to Environmental Issues

Indiana Law - Justice Sullivan Chairs National Program Urging Minority Law Students to Seeek Judicial Clerkships

This release was just issued through Chief Justice Shepard's office:

Fifty-one minority law students from 14 law schools throughout the country were urged to seek judicial clerkships in a special program at the American Bar Association's Mid-Year Meeting in San Antonio, Feb. 5-Feb. 7, 2004. The fourth annual Judicial Clerkship Program was organized and conducted under the co-sponsorship of the ABA's Commission on Racial and Ethnic Diversity in the Profession and its Judicial Division, and with the generous financial support of LEXIS-NEXIS.

Justice Frank Sullivan, Jr., of the Indiana Supreme Court chaired the program on behalf of the Judicial Division. Sylvia A. Bier, Arlene Brens, Robyn N. Carr, and Lu-celly Duenas, students at the Indiana University School of Law—Bloomington, were among the students participating.

“The ABA launched the Judicial Clerkship Program three years ago in response to a study by the National Association of Law Placement that showed minority representa-tion among judicial clerks generally lower than in the law school population and to pub-licity over the absence of minority clerks at the U.S. Supreme Court,” Justice Sullivan said. “Feedback from the participating law students, judges, and former clerks has been extremely positive. Many past participants have pursued clerkships and virtually all of this year’s participating students said they intended to seek clerkships.”

Over parts of three days, the Program brought the minority law students together with 30 judges and several former law clerks for panel discussions, a research exercise, and informal social events, Sullivan said. These activities were designed to introduce and then reinforce reasons for pursuing a judicial clerkship: (1) allowing a new lawyer to de-velop a close personal working relationship with a judge; (2) improving a new lawyer's legal research, analytical, and writing skills; (3) enhancing a new lawyer's career oppor-tunities; and (4) permitting a new lawyer to participate directly in the process of shaping the law.

Both ABA President Dennis W. Archer and ABA President-elect Robert J. Grey addressed the students, congratulating them on their participation and encouraging them to seek clerkships.

This was the third consecutive year that Sullivan has chaired the Judicial Clerk-ship Program on behalf of the Judicial Division. In 2002, the Program won the ABA Section Officers’ Conference Meritorious Service Award as the best program sponsored by an ABA subdivision that year. Sullivan himself received the Indiana State Bar Asso-ciation’s 2002 Rabb Emison Award which honors demonstrated commitment to promote diversity and equality in the legal profession, in part for his work on the Judicial Clerk-ship Program.

Posted by Marcia Oddi on Tuesday, February 10, 2004
Posted to Indiana Law

Indiana Decisions - Court of Appeals Decisions Posted Today

The Estate of Robert W. Hunter by Nina Jean Hunter v. Charles L. Young, Jr. (2/10/04 IndCtApp) [Estates & Trusts; Civil Procedure]

Marshall Randolph v. State of Indiana (2/10/04 IndCtApp) [Criminal Law & Procedure]

Traci Jacobs v. State of Indiana (2/10/04 IndCtApp) [Criminal Law & Procedure]

Deals with applicability of the incredible dubiosity rule.

Danny & Cindra O'Brien v. Watco Contract Switching, et al. (2/10/04 IndCtApp) [Civil Procedure; Public Utilities]

On November 18, 1999, O’Brien and his wife, Cindra, filed a complaint against Watco to recover damages for O’Brien’s injuries under the Federal Employer’s Liability Act, 45 U.S.C. §§ 51-60 (“FELA”). On August 31, 2001, Watco filed a motion for summary judgment, alleging that the “undisputed material facts of this case demonstrate that Watco is an intra-plant switching service, not a common carrier subject to [FELA]. Thus, Plaintiffs’ FELA claims against Watco fail as a matter of law, and summary judgment in Watco’s favor should be granted.” The trial court granted Watco’s motion for summary judgment, finding that Watco “is not a common carrier by railroad as required in order [for it to be subject to] an action under [FELA], 45 U.S.C § 51.” * * *

Accordingly, the trial court did not err as a matter of law by holding that Watco is not a common carrier for purposes of FELA, and the trial court did not abuse its discretion by granting Watco’s motion for summary judgment.

Posted by Marcia Oddi on Tuesday, February 10, 2004
Posted to Indiana Decisions

Indiana Law - Where are we on the 2003 vetoed environmental bills?

Six 2003 bills were vetoed by the Governor; here is the 2004 action so far:

HB 1525 - Criminal law matters (Veto sustained by House 1/26/04, pending in Senate)
HB 1660 - Abuse of endangered adult (Veto overriden by House 1/26/04, also overriden by by Senate) NOW LAW, effective 7/1/2004
HB 1798 - Various environmental (Veto overriden by House 1/26/04, also overriden by by Senate) NOW LAW, effective as detailed below
SB 337 - Native American affairs commission (Veto overriden by Senate, pending in House)
SB 440 - Air pollution (Veto sustained by Senate)
SB 533 - Confined feeding (Veto sustained by Senate)

HB 1798 has been called "the wetlands bill," but contains a number of environmental provisions.

SECTION 1 - Deals with storm water facilities in third class city (Eff. 07/01/2004)
SECTIONS 2 through 5 - More on local storm water (Eff. 01/27/2004)
SECTION 6 - More on local storm water (Eff. 07/01/2004)
SECTIONS 7 through 25 - More on local storm water (Eff. 01/27/2004)
SECTION 22 through 25 - Wetlands related (Eff. 01/27/2004)
SECTION 26 - Periodic vehicle inspection definition (Eff. 07/01/2004)
SECTIONS 27 through 34 - Wetlands related (Eff 01/27/2004)
SECTIONS 35 - Environmental rulemaking notice (Eff 01/27/2004)
SECTIONS 36-37 - Motor vehicle inspection (Eff. 7/1/2004)
SECTION 38 - Adds new wetlands chapter (Eff 01/27/2004)

Here is a link to the wetlands bill pending in the 2004 session, HB 1277.

The Fort Wayne Journal Gazette had an editorial Feb. 2 titled "Fixing a bad wetland vote." Some quotes:

The legislature's override of the late Gov. Frank O'Bannon's veto of a bill weakening protections against development of Indiana's disappearing wetlands should not be the last word on the subject.
Proposed legislation aimed at fixing the bill's flaws deserves passage. Failure to address those problems will leave wetlands facing new threats when the bill becomes law. O'Bannon accurately described the bill in his veto message as "unsatisfactory even as a starting place for state regulation." * * *
[The] bill's most glaring shortcomings lie in a crude, oversimplified classification system for wetlands. The focus is on isolated wetlands, areas that may be dry intermittently and are not directly connected to lakes, rivers or streams. The bill includes three classifications giving varying degrees of protection based on the size of wetlands, an emphasis that fails to reflect other factors that may be more important in determining the quality of a wetland.

Many isolated wetlands will fall under a classification that exempts property owners from obtaining a permit from the Indiana Department of Environmental Management for dredging, filling or discharge of pollutants. "Size is really a minor part of the value of wetlands, and those size exemptions are just too high," said Tim Maloney, executive director of the Hoosier Environmental Council.

Environmental lobbyists say some poor wording has already been removed that would have placed almost all the state's wetlands under a classification with the least amount of protection. But many wetlands remain vulnerable to unbridled development. Lynne Dennis, a lobbyist with the Nature Conservancy, said provisions exempting wetlands of up to a half acre from regulations in one category "At a minimum, we would like to see it lowered to at least a quarter acre," she said.

The veto override reflects a lack of appreciation for wetlands' importance in controlling mosquitoes, pollution and flooding. Although not linked on the surface to other bodies of water, wetlands are often connected through underground streams that play an important part in drainage and removing pollutants. The General Assembly made a mistake in overriding O'Bannon's veto. The lawmakers can reduce the new vulnerabilities they have created for wetlands with a tighter classification system that brings more of them under state protection.

This AP story tells of a different approach being proposed in Illinois. Some quotes:
CHICAGO - State lawmakers are slated to take up legislation soon that would help protect Illinois wetlands, which lost federal protection three years ago.

Under the legislation, developers would have to get the state's permission to dig up or fill in the ecologically sensitive areas. The developers also would have to make up for any loss by creating replacement wetlands or paying someone else to do the job. * * *

Many of the wetlands that would be covered under the legislation are squeezed between subdivisions or close to shopping centers, away from lakes and streams. Most are a half-acre or less in size and some are dry for part of the year.

A related story Sunday in the Munster Times tells of the incredible redtape involved in dealing with Indiana state agencies on some environmental projects.

Posted by Marcia Oddi on Tuesday, February 10, 2004
Posted to Indiana Law

Monday, February 09, 2004

Law - "Digitally enhanced" may pose a problem

Some quotes from an article today in Newsday titled "Digital Photos Pose Issues in the Courts":

[I]n the words of Mary DeFusco, head of training for the Philadelphia public defender's office: "I thought digital was better, but apparently it's not. We're definitely going to take a look at it." As more police departments abandon chemically processed film in favor of digital photography, the technology could be confounding for the justice system. Film images are subject to darkroom tricks, but because digital pictures are merely bits of data, manipulating them is much easier. * * *

Courts have consistently allowed digital photographs and enhancement techniques. But some observers say such methods should endure a more thorough examination, as have technologies such as DNA analysis. "There have been relatively few challenges to the use of digital technology as evidence and in most of them the courts have looked at them in a fairly superficial way," said Edward Imwinkelried, an evidence expert at the University of California-Davis law school.

Concerns about the impeachability of digital photographs are one reason many police departments have been hesitant to ditch film for crime scene photographs and forensic analysis. In fact, some people who train law enforcement agencies in photography estimate that only 25 to 30 percent of U.S. police departments have gone digital -- despite the huge cost benefits of no longer having to buy film and the ease with which digital pictures can be captured and disseminated.

The police department in Santa Clara, Calif., bought 30 digital cameras recently but is holding off on giving them to detectives and technicians until the department specifies ways to lock away the original photos as evidence "so there can be no question that anything was changed," said Sharon Hoehn, an analyst for the department.

The story also provides a link to the "Recommendations and Guidelines for the Use of Digital Image Processing in the Criminal Justice System."

A link to the website of the product mentioned in the article, More Hits, described as a "forensic digital imaging processing solution" (warning - this is one of those sites with music, etc.), leads to fascinating tutorials (at least to the occasional viewer of CSI), such as this one on creating a court exhibit that begins:

A subpoena for a fingerprint case used to mean spending the better part of a day or even longer working in the darkroom and then in front of a drafting table preparing a court display to help the jury better understand how the identification was made.

The first step was to photograph both the latent print and the inked print using 4 x 5 film. Then the film had to be processed and the negatives masked so both prints would be the same size. Once the negatives had been masked, there was yet another trip into the darkroom to print the negatives. The prints were then mounted onto mat board in preparation for the addition of lines and text. If you made a mistake at any point, it generally meant that the damaged print had to be redone — a lot of work just to illustrate how you determined that this particular individual left this faint pattern on an object at the crime scene.

The chart is only part of the process, but it is also one of the more effective techniques used to explain the identification process to a group of individuals that have probably never even noticed that they have their own individual characteristics.

Adobe® Photoshop® makes the task of creating a court display almost pleasurable. It also makes it possible to produce a chart in less than an hour, and after some practice, you’ll be able to “knock one out” in about 20 minutes. The techniques used to produce a digital chart are very similar to the taught at schools and seminars around the country by the FBI Latent Section — using film negatives.

Posted by Marcia Oddi on Monday, February 09, 2004
Posted to General Law Related

Indiana Law - More on Time in Indiana

The Indianapolis Star is reporting here this afternoon:

Republican candidate for governor Mitch Daniels today called for the state to adopt one time zone. On the politically sensitive topic, Daniels said Indiana should observe Daylight-Savings Time and would be best served under Central time, which is what is observed in Chicago and Northwest Indiana.
This rtv6 story from theIndyChannel.com has it a little different:
Republican gubernatorial candidate Mitch Daniels said Monday he wants to move most of Indiana to the Central time zone and have it observe daylight-saving time statewide.

Daniels' statement was part of a series of economic development initiatives he announced. He said the time change would put Indiana within two hours of everyone in the continental United States and make it easier for companies inside and outside the state to do business. [emphasis added]

13 Eyewitness News adds:
Daniels says he's convinced Indiana would have at least one major airline hub today if not for what he called the "time zone thing," which he says keeps us out of touch with the world and each other.
You know we have problems in Indiana explaining our time situation when you see that we need a page like this, which happens to be on the official "Welcome to Indianapolis" site, or like this.

Access the Indiana Law Blog's Feb. 4th entry, "What Time is it in Indiana?", here, or simply scroll down this page.

Posted by Marcia Oddi on Monday, February 09, 2004
Posted to Indiana Law

Indiana Decisions - All Three Appellate Courts Post New Decisions Today

In the Matter of Michael E. Allen & In the Matter of Patrick W. Young (2/9/04 IndSCt) [Disciplinary Action]

The Disciplinary Commission has charged respondent attorneys Michael E. Allen and Patrick W. Young with attorney misconduct arising out of factually similar but unrelated incidents involving failure to deliver settlement funds to a third party entitled to receive them or to hold disputed funds separate. The Commission has charged each with violating Ind.Professional Conduct Rule 1.15(b). The respondents have agreed with the Commission upon resolution of the charges. * * *

It is, therefore, ordered that the respondents, Michael E. Allen and Patrick W. Young, are hereby reprimanded and admonished for their misconduct. The Clerk of this Court is directed to provide notice of this order in accordance with Admis.Disc.R. 23(3)(d), to the hearing officer, and to the clerk of the United States Court of Appeals for the Seventh Circuit, the clerk of each of the United States District Courts in this state, and the clerks of the United States Bankruptcy Courts in this state. Costs of this proceeding are assessed against the respondents.

Cathy & William Brady v. Brown Township Lifestar Ambulance (1/9/04 IndCtApp) [Medical malpractice]
The Bradys’ raise three issues on appeal, which we restate as follows: Whether the trial court properly granted summary judgment on Lifestar’s Second Motion for Summary Judgment on the issue of Lifestar’s assessment and subsequent transport of Brady as a Basic Life Support patient; Whether the trial court properly granted summary judgment on Lifestar’s first Motion for Summary Judgment on the issue that Lifestar transported Brady to a proper facility; and Whether the trial court properly granted summary judgment on Lifestar’s Second Motion for Summary Judgment on the issue that Lifestar did not delay Brady’s transport nor did the forty-nine minutes that Brady was in its care cause or aggravate her injuries. * * *

Reversed and remanded.

Jomokenyatta N. Dorsey v. State of Indiana (1/9/04 IndCtApp) [Criminal Law & Procedure]

American Family Mutual v. Eugene H. Ginther, et al. (2/9/04 IndCtApp) [Insurance]

Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor (49T10-0206-TA-61) (1/6/04 IndTaxCt) [Valuation of Real Property]

Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor (49T10-0206-TA-59 ) (1/6/04 IndTaxCt) [Related matters; Not for Publication]

Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor (49T10-0206-TA-60) (1/6/04 IndTaxCt) [Related matters; Not for Publication]

Posted by Marcia Oddi on Monday, February 09, 2004
Posted to Indiana Decisions

Sunday, February 08, 2004

Indiana Law - Federal Judge Young featured in STAR story today about Lilly bench trial

U.S. District Judge Richard L. Young is featured in this story today in the Indianapolis Star. The lead:

A patent trial that could cripple Eli Lilly and Co. is in the hands of an Evansville judge who ruled against another Indianapolis-area company in a patent case three years ago.

An adverse ruling could cause Lilly to lose the exclusive U.S. rights to sell Zyprexa, its blockbuster schizophrenia drug that accounts for a third of the company's sales and a reported one-third of profits. It is one of the most high-stakes patent battles the pharmaceutical industry has seen.

The federal courthouse trial, which is expected to last another week, could result in a decision that would affect the city because of Lilly's size as its largest private employer and its endowment's contributions here.

Although this interesting story focuses more on Judge Young himself than on the trial, it also serves as a wrap-up of the trial's second week. This story, published last Sunday, related the trial's first week highlights. The lead:
It is Lilly's legal Waterloo, the trial the Indianapolis drugmaker must win if it wants to protect the U.S. patent on its No. 1 drug.

Sometimes, though, as the case of Eli Lilly and Co. vs. Zenith Goldline Pharmaceuticals got under way last week, it was hard to keep in mind the gravity of it all.

Everyday concerns kept intruding, from the hardness of the church pew-like wooden benches that prompted some trialgoers to smuggle in Indianapolis Colts bleacher cushions, to the brisk temperatures in Judge Richard L. Young's courtroom that had people edging away from drafty windows in the century-old Federal Courthouse.

The humanity that broke through the courtroom demeanors of witnesses and lawyers also had the effect of softening a high-stakes trial where literally billions of dollars in drug sales are up for grabs in a potentially defining case for Lilly.

Posted by Marcia Oddi on Sunday, February 08, 2004
Posted to Indiana Law

Saturday, February 07, 2004

Law - Several interesting law-related stories today in the NY Times

"Irwin Schiff, the nation's best-known promoter of claims that no law requires the payment of income taxes, suffers from delusions including a fantasy that he alone can properly interpret the tax laws, according to papers that he had his lawyers file in Federal District Court in Las Vegas." So reads the lead to this story today in the NY Times.

Another Times story today, also on the front page of the Business Section, headlined, "Asian-Americans Take Offense at a Law Firm Memo," begins:

Responding to a note seeking someone to adopt a puppy, a partner in the London office of the law firm of Dewey Ballantine wrote, "Don't let them go to a Chinese restaurant."

Some of the firm's associates found the message offensive and said so; dozens of Asian-American law student associations and bar associations have criticized it as well. Senior partners at the firm almost immediately sent out a firmwide apology. So did the author of the message.

The firm had already put its lawyers through sensitivity training in the wake of a skit performed at a dinner last year when lawyers mocked stereotypical Asian accents to the tune of "Hello, Dolly," singing that they were "so solly" that the firm was closing its Hong Kong office. The firm no longer even holds that annual dinner.

A third Times story deals with the problems of growth in Boise, Idaho<
As isolated as Boise is, at the nexus of the high desert and the western edge of the Rockies and still close to the middle of nowhere, it became a migration magnet in the 1990's. It drew scores of jobless people from California and other depressed states to what was, until recently, an economic oasis.

Micron Technologies, now one of the world's leading manufacturers of superconductors and Idaho's largest private employer, was founded here in 1978. Hewlett-Packard is here, and Boise's other high-tech companies were spared much of the strangulation from the dot-com bust that left most of the Northwest in the dumps.

Recreation, the weather and the outdoor life are other big lures. Boise is known as the City of Trees, because the French-Canadian fur traders who came through the desert and discovered it in the early 1800's were delighted to find a cottonwood forest flanking what is now the Boise River. ("Les bois!" they shouted. The woods!) * * *

The Treasure Valley has a growing air quality problem because of smog resulting from cars. And its temperate inversions, once beautiful, now troubling — this happens when cold air gets trapped under warm air in the valley — are trapping pollution with them.

Growth is a topic everywhere these days, especially in the West. But the unusual thing about what is happening in Boise is that city officials and other concerned citizens are examining the problems of growth before they are full-blown problems.

Posted by Marcia Oddi on Saturday, February 07, 2004
Posted to General Law Related

Law - More on Bob Knight Incident

An interesting AP piece yesterday on the Bob Knight incident last week leads to a file of documents, including "Chancellor David Smith's version of the infamous salad bar incident." All are available here on the Lubbock KCBD website.

Posted by Marcia Oddi on Saturday, February 07, 2004
Posted to General Law Related

Friday, February 06, 2004

Indiana Decisions - Four from Court of Appeals

Conzalos Glasco v. State of Indiana (2/6/04 IndCtApp) [Criminal Law & Procedure]

"The sole issue we need to be decided in this case is whether or not the decision of our supreme court in Ross v. State, 729 N.E.2d 113, (Ind. 2000) has retroactive effect. We hold that it does not."

Judston McClure v. State of Indiana (2/6/04 IndCtApp) [Criminal Law & Procedure]

Pedro Sanchez v. State of Indiana (2/6/04 IndCtApp) [Criminal Law & Procedure]

Ten Cate Enbi, Inc. v. Julie Metz (2/6/04 IndCtApp) [Contracts]

Employment contract.

Posted by Marcia Oddi on Friday, February 06, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer List for Week Ending Feb. 6, 2004

Here is the Indiana Supreme Court's transfer list for the week ending Feb. 6, 2004.

My most current information is that the Court is not scheduled to have conference next week (ending Feb. 13th), but has scheduled a 2-day conference for the week of ending Feb. 20, 2004.

Posted by Marcia Oddi on Friday, February 06, 2004
Posted to Indiana Transfer Lists

Environment - More on Local Stormwater Boards

Last month the ILB posted a story on the impact of environmental compliance on a small municipality, about Decatur Indiana's (population 10,000) new the Department of Stormwater Management. Access it here (use your browser's back link to return - it is on the old site).

Wednesday an interesting followup story was published here in the Decatur Daily Democrat.

This story in the Munster NWI Times reports on a local stormwater board, from Valparaiso in Poter County, in action. Some quotes:

"It's one of the oldest parts of city and records on the storm, sanitary and combined sewers are very complex. We are piecing together data from many decades. The city has gone out and done extra work to help us, and I think everybody is pleased with the progress we're making," Walesh said.

The original concept was to spend about $1 million to put in storm sewers on Union Street, Brown Street and others in the area to drain the water into the Crosby Ditch and, eventually, Salt Creek. Then the city got complaints from residents of Franklin Street concerned the project would dump the water on them.

The city had hoped to do most of the work itself but discovered the project potentially could be much more complicated than originally envisioned and involve a much larger area. The project was included in the board's priority list to be completed using funds from a $3.5 million bond issue approved in the fall of 2002.

Posted by Marcia Oddi on Friday, February 06, 2004
Posted to Environmental Issues

Thursday, February 05, 2004

Indiana Decisions - Three from Supreme Court Posted Today

MPACT Construction Group, LLC v. Superior Concrete Constructors, Inc. (2/4/04 IndSCt) [Contracts]
Sullivan, Justice

When the owner failed to pay for work and supplies on its travel plaza, a subcontractor foreclosed on its mechanic’s lien. The general contractor sought to compel arbitration among the owner, general, and all subcontractors. While we acknowledge arbitration’s utility in this kind of multiparty dispute, our inspection of the contract documents indicates that the subcontractors did not agree to arbitrate the issues in dispute here. * * *

Dickson and Rucker, JJ., concur. Boehm, J., dissents with a separate opinion in which Shepard, C.J., joins.

I respectfully dissent. This is a typical multiparty construction litigation, where various parties are pointing fingers in various directions and claiming that whatever went wrong with the project is somebody else’s—anybody else’s—problem. I agree that state law governs the formation of the contract and that nothing in the Federal Arbitration Act requires that these disputes between subcontractors and the general contractor be arbitrated unless the parties agreed to that method of dispute resolution. I believe, however, that these agreements do call for arbitration of the entire multiparty dispute among the owner, the general contractor, and these several subcontractors. * * *

Barry Daugherty v. Industrial Contracting & Erecting (2/5/04 IndSCt) [Workers' Compensation]

William S. Bennett v. State of Indiana (2/5/04 IndSCt) [Criminal Law & Procedure]

Posted by Marcia Oddi on Thursday, February 05, 2004
Posted to Indiana Decisions

Environment - NW Indiana's Porter County, and More

The Munster NWI Times reported here yesterday that "Porter County's commissioners on Tuesday gave their support to the hiring of an Indianapolis firm to help prepare the county's case against the proposed landfill in Porter Township." More:

According to Planner Robert Thompson, who brought the proposal before the commissioners during their regular meeting Tuesday, the firm, Sommer Barnard Ackerson, is reported to be experienced in landfill litigation.

The law firm is expected to review the original proceedings before the Porter County Board of Zoning Appeals, which eventually denied the required special exemption to the landfill developer, Porter Development LLC. The firm's attorneys will consult with BZA attorney Lily Schaefer on matters before the trial court and any potential appellate proceedings.

According to the firm's proposal, the county could incur costs of $10,000 to $15,000 for the trial court phase and between $15,000 and $30,000 for a potential appeal. Hourly rates for the two attorneys are $350 for Robert Clark and $300 for Scott Alexander.

At last accounting, landfill litigation has cost the county about $16,000 so far. It's unclear what the county has spent on a second lawsuit launched by Porter Development in connection with a proposed waste transfer station just outside Valparaiso city limits.

A story published today in the Munster Times reports that "The ongoing legal warfare between the landfill firm of Porter Development LLC and Burns Harbor-based Eagle Services Corp. has ensnared a prominent area law firm, Hoeppner Wagner and Evans."

The Muncie Star Press reports here today on the use of brownfeilds funds in East Central Indiana.

"An expired environmental permit won't keep Bremen Technologies from operating, the Indiana Department of Environmental Management announced in a statement this week." That is the lead to this story published Jan. 30, 2004 in the South Bend Tribune.

Posted by Marcia Oddi on Thursday, February 05, 2004
Posted to Environmental Issues

Wednesday, February 04, 2004

Indiana Decisions - Four from Court of Appeals Today

David Copeland v. State of Indiana (2/4/04 IndCtApp) [Criminal Law & Procedure]

Kevin L. McCarty v. State of Indiana (2/4/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

The State appeals the trial court’s grant of Gary Hanley’s motion to suppress evidence collected from his home. The State raises four issues; however, because the State fails to argue the evidence was admissible under the Indiana Constitution, we affirm the trial court on that basis.
State of Indiana v. Gary Hanley (2/4/04 IndCtApp) [Criminal Law & Procedure]

Kevin E. Smith v. State of Indiana (2/4/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Wednesday, February 04, 2004
Posted to Indiana Decisions

Indiana Decisions - Two from Supreme Court Posted Today

Time Warner v. Whiteman (2/3/04 IndSCt) [Contracts]
Sullivan, Justice

Two customers of a cable television company who paid the “late fees” imposed on their bills sued to get back a portion of the money they had paid, arguing that the fee imposed exceeded the cable company’s cost of collection. The Court of Appeals held that they were not entitled to recover because they had made the payments voluntarily. We hold that the “voluntary payments doctrine” is not applicable here.
Lake County Auditor v. Lonnie Burks (2/4/04 IndSCt) [Taxation; Property & Real Estate; Estates & Trusts]
Boehm, Justice
The Lake County Auditor sold the home where Lonnie Burks lived to satisfy delinquent taxes on the property. The property brought a price greater than the delinquency and Burks sued for the surplus. Burks was not the record owner. Rather, she was intestate heir and a beneficiary of the unprobated will of the deceased record owner. We hold that a person is not required to be the “record owner” of the property to claim the surplus from a tax sale if he or she can establish ownership of the property sold.

Posted by Marcia Oddi on Wednesday, February 04, 2004
Posted to Indiana Decisions

Indiana Law - Gay Marriage and Civil Unions Update

The Supreme Judicial Court of Maine ruled today, as reported by the Massachusetts Lawyers Weekly, "that only full, equal marriage rights for gay couples -- rather than civil unions -- would meet the edict of its November 'Goodridge' decision, erasing any doubts that the nation's first same-sex marriages would take place in the state beginning in mid-May." Here is the Court's opinion. [Update: Here is a better version.] Note that it appears to be an advisory opinion, an answer to a question propounded to them by the Massachusetts Senate about a pending piece of legislation, and begins:

To the Honorable the Senate of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit their answers to the question set forth in an order adopted by the Senate on December 11, 2003, and transmitted to the Justices on December 12, 2003. The order indicates that there is pending before the General Court a bill, Senate No. 2175, entitled "An Act relative to civil unions." A copy of the bill was transmitted with the order. As we describe more fully below, the bill adds G. L. c. 207A to the General Laws, which provides for the establishment of "civil unions" for same-sex "spouses," provided the individuals meet certain qualifications described in the bill.

The order indicates that grave doubt exists as to the constitutionality of the bill if enacted into law and requests the opinions of the Justices on the following "important question of law":

"Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all 'benefits, protections, rights and responsibilities' of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?"

The Court's November 18, 2003 ruling in Goodridge v. Department of Public Health is available here. The Mass. Lawyers Weekly also has a FAQ about the Goodridge decision.

Last month the Indiana Law Blog posted this overview of what was going on in the various states. [Note - be sure to use your browser's back key to return, as this link is on the old site.]

Since then, the Indiana General Assembly has moved on the constitutional amendment front. As reported here today in the Louisville Courier-Journal:

The Senate voted yesterday to amend the Indiana Constitution to ban same-sex marriages, but the proposal is unlikely to gain much traction in the House. The amendment, Senate Joint Resolution 7, passed 42-7. * * *

Indiana law already defines marriage as the legal union of one man and one woman. The state also passed a "defense of marriage" law in 1997 that says Indiana does not recognize same-sex marriages or civil unions that take place in other states.

But last year a group of homosexual couples sued the state, asking for the right to marry. A Marion Superior Court judge dismissed the case, saying state law defined marriage as one man and one woman, but the group has appealed. * * *

However, Democrats who control the Indiana House have refused to hear a similar proposal by state Rep. Dennis Kruse, R-Auburn, even though a majority of the chamber's members have signed on as co-authors.

House Rules Committee Chairman Scott Pelath, D-Michigan City, said the proposal "is not a priority" for the House. A handful of senators yesterday agreed.

This story in the South Bend Tribune today reports:
[T]he vote followed the trend set by Indiana's original "defense of marriage act," which also bars marriage by homosexuals. That law is being challenged in the Indiana Court of Appeals, and a similar measure was overturned last year by Massachusetts' highest court. The Massachusetts decision is not binding outside of that state.
Meanwhile, in the Indiana House, according to this story reported Jan. 30, 2004 in the Indianapolis Star:
A majority of lawmakers in the Indiana House want to amend Indiana's Constitution to ban same-sex marriage and are urging House leadership to let the matter come up for a hearing and vote. House Speaker B. Patrick Bauer, D-South Bend, said that won't happen this session. "It is not a critical issue," Bauer said. "It is not an emergency."

But the House author of the proposed amendment, Rep. Dennis Kruse, R-Auburn, says that's exactly what it is. * * * Five Democratic lawmakers have joined with all 49 Republicans in the 100-member House as co-sponsors of Kruse's proposal, House Joint Resolution 6. Kruse is proposing a one-sentence addition to the state constitution: "Only marriage between a man and a woman is valid in Indiana." To be added to the constitution, it must pass two different General Assemblies and then be approved by Hoosier voters.

Earlier ILB coverage of the challenge to the current Indiana statutory provision may be found here, here and here. [Again, these links lead to the old site, so use your browser's back key to return.]

[Update 2/5/04] Coverage today of the Mass. court's advisory opinion includes: Charles Lane's report in the Washington Post; the LA Times story, available here, headlined "The landmark court ruling makes it the first state to uphold full marriage rights for same-sex couples, not civil unions and similar separate arrangements;" this story from the NY Times; and extensive coverage from the Boston Globe, including stories titled "Court deems civil unions insufficient," and "Justices' opinions reveal deep division."

Posted by Marcia Oddi on Wednesday, February 04, 2004
Posted to Indiana Law

Indiana Law - What Time is it in Indiana?

An Indianapolis Star/Eyewitness News 13 Poll of 704 Indiana residents in January "found that 58 percent of Hoosiers think the entire state should be on the same time, compared with 38 percent who are satisfied with the current arrangement," according to this story reported 1/25/04 in the Indianapolis Star. More from the story:

One of the most complicated questions in Indiana is also one of the simplest: What time is it? To answer that you need a clock -- and sometimes a map -- to navigate the state's odd patchwork of time zones.

Most of the state is in the Eastern time zone all year. Some northwest and southwest counties near Illinois are in the Central zone. Some southeastern counties are in the Eastern time zone -- but observe daylight-saving time, unlike most of the state. * * *

OK, so we should all be on the same time -- but whose time?

The poll found that 48 percent of Hoosiers prefer the Central time zone, with its orientation to Chicago. And 40 percent prefer Eastern, or New York time. Twelve percent are not sure.

The greatest support for Central time, 66 percent, was in northwest Indiana near Chicago. Only 20 percent of those respondents favored Eastern time.

The time zone preference was about evenly split in the rest of the state except for southern Indiana, which showed a 48 percent to 42 percent preference for Central time over Eastern.

The Star story also describes that the Indiana time situation is even more complicated than it seems:
So for now, Indianapolis and most of the state, 77 counties, observe Eastern Standard Time all year. Five counties in the northwest near Chicago and five counties in the southwest around Evansville remain on Central time.

The time question is more complicated in southeast Indiana. Five counties near Louisville, Ky., and Cincinnati are officially on Eastern Standard Time all year. But in practice those southeastern counties observe daylight-saving time along with their neighbors in Kentucky and Ohio.

Here is a website devoted to daylight saving time. Re the evolution of daylight savings time in the United States, the site reports:
In the early 1960's, observance of Daylight Saving Time was quite inconsistent, with a hodgepodge of time observances, and no agreement when to change clocks. The Interstate Commerce Commission, the nation's timekeeper, was immobilized, and the matter remained deadlocked - until 1961. Many business interests were supportive of standardization, although it became a bitter fight between the indoor and outdoor theater industries. The farmers, however, were opposed to such uniformity. State and local governments were a mixed bag, depending on local conditions.

Efforts at standardization were encouraged by a transportation industry organization, the Committee for Time Uniformity. They surveyed the entire nation, through telephone operators, as to local time observances, and found the situation was quite confusing. * * *

By 1966, some 100 million Americans were observing Daylight Saving Time based on their own local laws and customs. Congress decided to step in to end the confusion and establish one pattern across the country. The Uniform Time Act of 1966 (15 U.S. Code Section 260a) [see law] which was signed into Public Law 89-387 on 12 April 1966, by President Lyndon Johnson, created Daylight Saving Time to begin on the last Sunday of April and to end on the last Sunday of October. Any State that wanted to be exempt from Daylight Saving Time could do so by passing a State law.

The Uniform Time Act of 1966 established a system of uniform (within each time zone) Daylight Saving Time throughout the U.S. and its possessions, exempting only those states in which the legislatures voted to keep the entire state on standard time.

In 1972, Congress revised the law to provide that, if a State was in two or more time zones, the State could exempt the part of the State that was in one time zone while providing that the part of the State in a different time zone would observe Daylight Saving Time. The Federal law was amended in 1986 to begin Daylight Saving Time on the first Sunday in April.

The site devotes half-a-page here to the Indiana time situation.

Indiana's statute exempting the State from daylight savings time is found at IC 1-1-8.1. It also provides that: "In the event that the Congress of the United States or the Department of Transportation should permit any state which is divided by a time zone line to exempt less than a whole state from the observance of advanced or Daylight Savings Time, then in such event this chapter shall not apply to that portion of the State of Indiana that is in the Central Time Zone."

A treasure trove of information on the law of time in the United States, titled "24/7: A Resource Guide to the Law of Time Standards," is found here at the excellent legal research site, LLRX.com. Supplementing this is a paper prepared by Bob Rudolph of the Indiana Legislative Services Agency titled "Indiana Daylight Saving Time and Time Zone History."

What about change in Indiana? An article dated 1/24/04 in the Munster Times explains why change may be difficult:

Currently, five Northwest Indiana counties and five southwestern counties stay on Central zone time all year, five southeastern counties remain on Eastern time, and 77 counties do not follow daylight savings time. The result is that most of the state switches time zones rather than clocks twice a year, and many people can't figure out what time it is in Indiana.

[Rep. Chet Dobis, D-Merrillville] thinks the solution is simple: The whole state should follow daylight savings time -- in the Central zone. But some other interests in the state, especially an Indianapolis business group and suburbs of Louisville, want Indiana to follow Eastern daylight time.

Northwest Indiana lawmakers won't let the region become separated from Chicago, however, because of the commuters that daily cross state lines for work and play. So this and every year, Dobis files his bill to follow daylight savings time -- and nothing happens. On purpose.

"That bill is going nowhere," Dobis said this week. "But if you know the rules of the game, you can play within them." Dobis' solution works because no one else can pass a bill, or amend the daylight savings change into another bill, as long as his bill on the same topic is pending. The blocking strategy works so well, it has forced critics to throw in the towel.

The Daylight Savings Coalition disbanded in August because House members like Dobis kept stifling their effort, said Terri Pizzano, its former director. The group's Web site, www.hoosierdaylight.com [no longer working], said businesses lose piles of money from missed meetings and phone calls stemming from the time confusion. * * *

Dobis said maintaining the status quo is better than allowing others to put most of, or eventually, the whole, state in Eastern time all year. His ultimate goal is to negotiate the whole state into uniform Central daylight time, he said. "What do we have in common with New York?" Dobis said. "The Chicago market is 150 miles from Indianapolis."

Rep. Dobis' bill this year is numbered HB 1060; it is a one line bill that would repeal IC 1-1-8.1. The bill is still in first house committee.

Finally, the Terre Haute Tribune Star reported here yesterday that Lt. Gov. Kathy Davis, speaking Monday to members of the Greater Terre Haute Chamber of Commerce during its annual Groundhog Economic Forecast breakfast at ISU's Hulman Memorial Student Union, said:

Indiana's time zone is a key factor that Davis said must be changed to improve the state's business environment.

Davis referred to an Indianapolis trucking executive who said his company created 200 jobs last year, but none in Indiana. Davis said she contacted the company to find out why.

"Indiana needs to be on central time. [The company official] said that a transportation company cannot compete in Indiana if it is five hours to Detroit part of the year and six hours to Detroit the rest of the year, where Indiana is the only state where the [trucking] schedules need to be reprinted," Davis said.

The company official said "that last year the time change cost his company $250,000 correcting the errors that were made in the transition," Davis said.

"Certainly over the years the confusion that our lack of changing time creates with those who make a judgment about us has shown that not changing our time is more costly than we can afford," Davis said.

Terre Haute's WTWO 2 contains a similar report of the Lt. Gov's position.

[Update] The rtv6 Evening News is reporting here that: "Indiana Rep. Julia Carson is asking the federal government to investigate whether the state is losing money by not adopting daylight-saving time. Carson asked Congress' General Accounting Office to look into the economic costs of Indiana's time zones."

Posted by Marcia Oddi on Wednesday, February 04, 2004
Posted to Indiana Law

Tuesday, February 03, 2004

Sports Law - Bob Knight Suit Against IU

Today's stories about Bob Knight's suspension at Texas Tech after he "got into a verbal spat with the university chancellor at a grocery store Monday" give me a reason to go back to last week's stories about the Knight decision (or not) to appeal the Monroe County Circuit Court's dismissal of his suit against Indiana University's firing procedures.

But first, re the Lubbock story, here is a quote from KCBD in Lubbock, via 14 WFIE in Evansville:

Lunchtime at Market Street. Coach Bob Knight, Chancellor David Smith, Athletic Director Gerald Myers and one other man, standing at the salad bar, when havoc breaks loose.

According to an eyewitness, Knight and Smith exchange words. With Knight's demeanor described as, "Mad as a hornet. His face was bright red." Knight then allegedly threw his salad. The argument between the two men possibly getting physical.

The four then leave the store, where Knight's temper continues to boil in the parking lot. A second eyewitness sees Myers grab Knight by the shoulder, pulling him away from Smith, ostensibly to prevent any physical violence. The chancellor's reaction described as dismayed.

As Knight walks to his car, he reportedly stops at least twice, glancing back at Smith, "sizing him up" according to the witness. He then gets in his vehicle and leaves.

According to ESPN:
Pat Knight said that his father was very upset over the incident and that his knee-jerk, heat-of-the-moment reaction was to quit. But Pat told him "you've gotta stay the rest of the season" and then decide. * * *

One eyewitness told the Lubbock Avalanche-Journal that Knight raised his voice to Smith after the chancellor approached him at a salad bar to compliment the coach on his recent good behavior.

Pat Knight said his father and Smith have had a strained relationship, divided mostly by "petty" issues, but that ultimately the chancellor felt slighted, Katz reported.

The witness told the paper that Knight flew into a rage and accused Smith of being a liar, saying that there had been nothing wrong with his demeanor this year.

But back to the lawsuit against Indiana University. Here are some quotes from a comprehensive 1/29/04 story in the Indiana Digital Student, reporting that Knight will review his chances before appealing, contrary to earlier coverage:
A week after asking the Indiana Court of Appeals to review his lawsuit against the University, former IU Basketball Coach Bob Knight and his legal counsel are taking a closer look at their chances of overturning a judge's decision to dismiss the case.

Knight's attorney, Russell Yates, said he will use the next 10 days to reconsider Knight's chances of winning the appeal. In October, Monroe County Circuit Judge Kenneth Todd dismissed the suit Knight levied in November 2002 against the University, which claimed IU violated the terms of his contract by not following proper firing procedures. * * *

There are two types of clauses in Knight's contract. The provision in question specifies a "for-cause firing," which required a formal hearing by the University before termination, a hearing Yates said Knight never received. His contract also included a "no-cause" clause.

Knight has 30 days from the date of the appeal to file a brief to the state appellate court. Yates said the process could take up to two years from that point. *** [IU's counsel] told the IDS in September that Knight's contract allowed IU to terminate him for any reason, provided the University continued paying his salary until the end of his contract. If Knight indeed had been fired "for cause," as Yates alleged, that payment would have immediately ceased and a hearing would have commenced.

IU released a statement following Knight's Sept. 10, 2000, firing in which it claimed the University could fire Knight under paragraph nine of his contract. The excerpt specifies "if the University at any time desires, Coach shall cease to serve as head basketball coach when so advised in writing." A hearing would then purportedly be held to discuss the option to fire the coach.

Knight's contract also specified that a quorum of members of the Board of Trustees could fire Knight through a majority vote. * * *

"I am disappointed that Coach Knight's representation at that time would allow such a poorly drafted contract," [Yates] said. "Coach did what most people would do -- he relied on his lawyer to make sure the contract was drafted in such a way that he would be protected. Well, it wasn't."

[Update (already)] Howard Bashman has a link to a Lubbock Avalanche-Journal report that "U.S. Supreme Court Justice Clarence Thomas arrived in Lubbock on Monday afternoon to attend a series of events. Thomas is in town as a guest of Texas Tech men's basketball coach Bob Knight." He is scheduled to attend tonoght's game, but Patrick Knight, rather than his father, will now be coaching because of the suspension.

[More - 5:45 EST] ESPN's Jay Billus just talked to Knight. Knight will not be suspended. He will receive a letter from the university. Justice Thomas will be able to watch Bob Knight coach tonight. Here is a slightly earlier ESPN report.

Posted by Marcia Oddi on Tuesday, February 03, 2004
Posted to General Law Related

Law - Copy of Court's Ruling on Government's In Limine Motion in Martha Stewart Case

This interesting ruling of Judge Cedarbaum in the Martha Stewart trial grants the Government's motion in limine to preclude the defendants from arguing in opening statements or presenting evidence re four points, all four of which we've heard discussed frequently in pre-trial coverage.

Posted by Marcia Oddi on Tuesday, February 03, 2004
Posted to General Law Related

Indiana Decisions - Court of Appeals Opinions Since 1/24/04

Working backwards from today, here are the latest opinions and the catch-ups dating back to the Indiana Law Blog's entry of 1/24/04.

Carlin Krieg v. Donald Hieber (2/3/04 IndCtApp) [Contracts; Property & Real Estate]

Gilbert R. Augspurger v. Julie E. Hudson (1/30/04 IndCtApp) [Family Law & Procedure]

Ezell Neville v. State of Indiana (1/30/04 IndCtApp) [Criminal Law & Procedure]

Michael Ray Minton v. State of Indiana (1/29/04 IndCtApp) [Criminal Law & Procedure]

Arthur John Bryant v. State of Indiana (1/29/04 IndCtApp) [Criminal Law & Procedure]

Matthew Glass v. Trump Indiana, Inc. (1/28/04 IndCtApp) [Torts]

Claim of malicious prosecution.

Ronald L. Hunter v. State of Indiana (1/28/04 IndCtApp) [Criminal Law & Procedure]

Mildred Rawls v. Marsh Supermarkets, Inc. et al. (1/28/04 IndCtApp) [Torts]

Slip and fall in front of ATM.

PSI Energy, Inc. v. William Lee Roberts, et al. (1/28/04 IndCtApp) [Torts]

Duty of landowner to keep its property in a reasonably safe condition for independent contractors invitees. Premises liability; asbestos. Footnote of interest:

Due to the voluminous record and complexity of this case, the parties participated in a pre-appeal conference with Judge Paul D. Mathias pursuant to Ind. Appellate Rule 19. As a result of the conference, the parties were ordered to submit their briefs on CD ROMS in either Microsoft Word or Corel Word Perfect format and in Adobe PDF format along with the regular hardcopy format. Additionally, the parties were ordered to submit the Appellant’s Appendix and the transcript in Adobe PDF format along with the regular hardcopy format. Source citations in the briefs were also to be linked to Lexis/Nexis, Westlaw, the Appellant’s Appendix, and the transcript on appeal. See Pre-Appeal Conference Order dated February 28, 2003.

We thank the parties and amici curiae, Indiana Manufacturing Association and O’Malia Food Markets, for their extra effort in preparing their electronic submissions. The electronic submissions, especially the linked source citations, greatly assisted in our review of this matter. We encourage other parties with voluminous records and complex cases to consider such electronic submissions with linked source citations in addition to the regular hardcopy submissions.

Posted by Marcia Oddi on Tuesday, February 03, 2004
Posted to Indiana Decisions

Monday, February 02, 2004

Environmental - Cap proposed to Fort Wayne Steel Mill's Environmental Costs

"Environmental issues are a hurdle any buyer must clear if production is to resume at the mill," is the headline to this lengthy story today in the Fort Wayne News-Sentinel. The story reports that the City:

is going to bat to smooth a major obstacle facing potential buyers of Slater Steel's Fort Wayne operations -- environmental costs. Arlington Capital is negotiating with the state to cap its future environmental liabilities at $500,000, a proposal the city is backing. * * *

Environmental issues are a big hurdle any buyer must clear if production is to resume at the stainless steel mill at 2400 W. Taylor St. Arlington's purchase agreement with Slater, filed as part of the bankruptcy case, refers to efforts to reach an agreement between Arlington and the Indiana Department of Environmental Management which would set a $500,000 cap on any future liabilities. If a settlement is reached, that would become part of the sale documentation, according to the court records.

IDEM has sent a letter to Arlington's lawyers saying the agency is interested in working with the potential buyers in setting that sort of cap, said Amy Hartsock, spokeswoman for the state environmental agency. No agreement has been reached yet, she said last week.

The city has let IDEM know resolving environmental questions are crucial to give new owners a chance, said Ron Fletcher, Fort Wayne Redevelopment director. In return, those new owners would commit to an environmentally responsible operation. "Arlington would work with (IDEM) in cleaning up and not causing any more problems," Fletcher said. The city views this as an economic development issue.

The story reports that groundwater issues are the most serious environmental problems facing the company:
Slater has had under way a $1.9 million project to prevent the future release of hazardous materials at the site, following a 1996 study finding contaminants which affected groundwater. The company had spent $1.36 of that total by last March, court documents say.

More liabilities might lie ahead, according to the court records. From the 1950s through the early 1980s, slag from the mill was hauled to a local salvage yard. Although IDEM has not required that yard to undertake remediation, that could still lie ahead. Slater estimates its liability would not exceed $500,000

Transformers containing PCBs are being used at the plant. Building materials using asbestos are found in a variety of places including floor tile, roofing, siding and pipe insulation. Neither has to be removed now, but do present future possible liabilities, the court documents say.

The story does not discuss whether the "cap" would mean that no future cleanup would be required beyond that amount, or that future costs beyond that amount would paid by the taxpayers, rather than by the company.

Posted by Marcia Oddi on Monday, February 02, 2004
Posted to Environmental Issues

Indiana Decisions - Supreme Court Opinions

Since our last posting of Indiana Supreme Court decisions, the Court has released three opinions online, all dated Jan. 29, 2004.

State of Indiana v. Robert Bulington (1/29/04 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice

The police asked a Meijer Superstore to report every customer who bought three or more packages of cold medicine. Acting on such a report, the police stopped and searched defendant Robert Bulington's truck and discovered various other substances used to produce methamphetamine. He was charged with the crime of “Possession of Precursors of Methamphetamine.” We affirm the trial judge's decision that there was insufficient evidence to create the reasonable suspicion necessary to justify stopping defendant's truck. * * * Dickson and Rucker, JJ., concur. Boehm, J., dissents with separate opinion in which Shepard, C.J., joins:

As the majority notes, we review these reasonable suspicion determinations de novo. Under that standard, I have no trouble finding that the information supplied by the Meijer store employees provided the officers with grounds for reasonable suspicion that a crime was afoot. The police were told that two men lingered in front of the cold remedy section of the store where one finds products containing ephedrine, a widely known ingredient of methamphetamine. Each selected the maximum number of packages that the store is to sell to one customer without notifying law enforcement. The two then separated and checked out individually. They are then observed emptying the pills into bags of loose pills. Of common human activities of which I am aware, I can think of nothing these actions suggest except preparation to cook these pills into some broth. It seems to me that the police had a moral certainty, not just reasonable suspicion, that they had some unregulated pharmaceutical manufacturers on their hands. I would reverse and remand for trial.
Shepard, C.J., joins.

Chad E. Vicory v. State of Indiana (1/29/04 IndSCt) [Criminal Law & Procedure]
Shepard, Chief Justice

This case deals with "the right of allocution." The Court holds that the right extends to include probation revocation hearings.

Indiana Department of Natural Resources and Larry D. Macklin v. Newton County, Indiana (1/29/04 IndSCt) [Constitutional Law; Administrative Law]
Boehm, Justice

The Court here reverses the judgment of the trial court in this important opinion. Because the trial court held a state statute unconstitutional, this appeal was taken directly to this court pursuant to Appellate Rule 4(A)(1)(b):

Newton County adopted two ordinances purporting to impose requirements on purchases of land in the County by government agencies. The trial court found that the acquisition of land by the Department of Natural Resources violated the ordinances and set aside the transaction. The trial court also held unconstitutional the Game Bird Habitat Act, which gave the agency the authority to purchase the land. We hold that the ordinances are invalid exercises of county authority and that the Game Bird Habitat Act is constitutional.
After finding that the County had standing to raise the issue of the constitutionaility of the Game Bird Habitat Act, the Court states [important citations mostly omitted here]:
In order to constitute a valid delegation of authority to a state agency, legislation must provide sufficient standards to guide the agency in its exercise of that authority. Newton County argues that the Act fails this test. First, the County contends the terms “willing seller” and “game bird habitat” lack sufficient definition. Second, the County points out that the terms have not been refined by any regulations. Third, the County points out that the legislature failed to provide any specific procedures for acquiring game bird habitats.

We do not agree that the legislature must supply more specific definitions for the terms “willing seller” and “game bird habitat” to guide the agency. To be sure, statutory terms must be understandable, but they need not be rigorously precise. Newton County sets out a parade of horribles that it contends may constitute examples of a “willing seller” under the statute. * * * Newton County points to no evidence whatsoever that DNR has wasted public funds, purchased land for wrongful uses, or coerced residents into selling their land. More importantly, there is no such evidence as to the Brandt sale. To be sure, there may be litigable issues on the fringes of the term “willing seller”, but there is no doubt that Brandt is one. He approached DNR and proposed the sale.

The term “game bird” is defined by statute to mean pheasant, quail, grouse, wild turkey, and Hungarian partridge. Ind. Code § 14-22-8-2 (1998). A particular bird is a “game bird” or it is not, and a “potential habitat” is a place where a game bird can live. We see no need to define the terms with any greater specificity. The birds are identified with precision. “Habitat” as we take it, means these creatures may reasonably be expected to occupy the site in the course of their natural activity. “Game Bird Habitat” may present some issues if, as the County posits, DNR attempts to use this statute to buy an asphalt parking lot. Courts can deal with these if they occur. The terms are sufficiently specific to have content. This regulatory framework may be less than wholly precise, but perfection has never been required of administrative bodies. Chem. Waste Mgmt., Inc., 643 N.E.2d at 340.

We also find unpersuasive Newton County’s argument that the terms “willing seller” and “game bird habitat” need definition by DNR regulations. Newton County cites the following passage in Indiana Dep’t of Envtl. Mgmt.: “Such terms get precision from the knowledge and experience of men whose duty it is to administer the Statutes, and then such Statutes become reasonably certain guides in carrying out the will and intent of the Legislature.” 643 N.E.2d at 340. We do not take this to require DNR to promulgate rules or guidelines to interpret statutory terms. Rather it merely acknowledges that regulations may fulfill that purpose. If no ambiguity exists within the statute itself an agency may determine if “facts or circumstances exist upon which the law makes or intends to make its own action depend” so long as the agency does not make the law itself.

Posted by Marcia Oddi on Monday, February 02, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer List for Week Ending Jan. 30, 2004

The Indiana Supreme Court did not have conference last week so there was not a transfer list for the week ending 1/30/04.

The Court is scheduled to have conference later this week (week ending Feb. 6th), but not the week ending Feb. 13th. The Court has scheduled a 2-day conference for the week of ending Feb. 20, 2004.

Posted by Marcia Oddi on Monday, February 02, 2004
Posted to Indiana Transfer Lists

We are back! Well, almost

The good news is the Indiana Law Blog site is up, right here, on its new server! The bad news -- a little more fiddling is needed to get it perfect. I'm trying to recreate all the little tweeks I did to the blog over the past 11 months to get it back to the way it was. The bottom line - it may be midweek before it looks and acts right -- there is a lot more to do than I remembered.

I hope to be able to import the past ten months' worth of entries, as much of the value of this site lies in its reservoir of information. Unfortunately "import" is not the correct term in this case, as the company I had the site with managed to wipe-out the entire database for the Indiana Law Blog. Rather than importing, I will be recreating. It will take some time to recreate the database from the still-existing html files. Meanwhile, for the forseeable future, you can continue to access the old, and now hobbled (no search capability, no updating capability, etc.), but still valuable, site at marciaoddi.com/indianalawblog.

Posted by Marcia Oddi on Monday, February 02, 2004
Posted to About the Indiana Law Blog