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.Here are two articles Lovins published in The American Prospect in 2002: "Mobilizing Energy Solutions," and "Energy Forever."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."
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 . * * *Lawrence Thomas v. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]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.
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.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:"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."
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.This lengthy story from last Sunday's LA Times focuses on the legal strategies being followed by opponents and proponents. A quote: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.
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.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:"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.
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.[Link via Ernie the Attorney]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.”
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.Here is the current site of the Court of Appeals, New York State's highest court.A NY Times story reports: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.
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. * * *Newsday reported yesterday, here: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."
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.Ronald E. Dumas v. State of Indiana (2/26/04 IndSCt) [Criminal Law & Procedure]Conclusion. We reverse the judgment of the trial court and remand this cause for a new trial.
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.[Unfortunately, it appears most of the story is inaccessible unless you sign up.]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.
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.Here is a map showing the location of Ogden Dunes in the Indiana Dunes National Lakeshore.“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.
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. * * *A copy of the 56-page draft Title V permit may be accessed here. Here is some information from page 2, the preliminary findings: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.
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.The decision, NE Md. Waste Disposal Authority v. EPA, may be accessed here.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.
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.The case is titled John Doe v. Jane Doe (pdf). The Court's conclusion: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 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 ofHere is a link to the proposed amendment to Rule 9.
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.
[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.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."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 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).Velvet Imre & Gregory Gambill v. Lake States Insurance Company (2/23/04 IndCtApp) [Insurance]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.
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.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: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).
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.Here is a 2/17/04 Chicago Tribune story; a 2/10/04 Yahoo entry/press release; and here is yesterday's Slashdot entry.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.
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.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: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.
the data are from one year -- 1996 -- and don't reflect reductions made by industries since then.As to whether the State investigated the problems after the EPA report was released: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.
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.As for other state and local officials, according to the Star: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.
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.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."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."
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.Yesterday (2/20/04) the Washington Post reported here that: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.
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. * * *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.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.
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 DecisionsHow 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."
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;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.
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.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.
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.(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.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.
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."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.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!
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:
- Under I.C. § 9-15-1-1, the Bureau of Motor Vehicles Commission is a body corporate and politic, and though separate from the state, the exercise by the commission of the Commission's powers constitutes as essential governmental function.
- I.C. § 9-15-1-2 provides that the BMVC consists of the following five (5) individuals: four (4) individuals, not more than two (2) of whom may be members of the same political party, who: (A) shall be appointed by the Governor; (B) serve for a term of four (4) years; (C) may not hold other public office or serve as a state or local employee while serving as a Commission member; and (D) shall devote as much time as is needed to carry out their duties, but are not required to devote full time to their duties.
- The duties of the Commission are set out in I.C. § 9-15-2-1. The Commission shall do the following: (1) develop and continuously update the Bureau's policies; (2) recommend to the Governor legislation that is needed to implement the policies developed by the Commission; (3) recommend to the Bureau proposed rules that are needed to implement the policies developed by the Commission and require those proposed rules to be adopted under I.C. § 4-22-2; (4) revise, review, adopt, and submit to the Budget Agency budget proposals for the Commission, the Bureau, and the license Branches operated under I.C. § 9-16 including the budget required by I.C. § 9-16-3-3; (5) establish the determination criteria and determine the number and location of license Branches to be operated under I.C. § 9-16. * * *
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.Apparently "who works for whom" [i.e. the State (BMV) or non-State (BMVC)] is flexible, as the Star story today also reports: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.
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.More: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.
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 Louisville Courier Journal also has a story.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.
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.WISHTV.com Indianapolis has this story. This story ran in the Indianapolis Star.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.
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. * * *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."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.
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.The story goes on to say that Verizon is "singing a different tune."We dialed the number, 212-867-5309, but all we heard was a recording directing us to the Internet auction site, eBay.
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.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."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.
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.See the earlier IBL seat belt entry here.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 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.See the earlier ILB entry here.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.
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