The Indiana Law Blog: March 2004 Archives

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Wednesday, March 31, 2004

Environment - US EPA Bad Marks Hit Home

Updating our entry from earlier today, titled "Environment - US EPA gets bad marks in two reports," (scroll down to read it) is this story today in the Gary Post-Tribune [note that the Post-Tribune does not archive its stories]. Some quotes:

East Chicago�s municipal sanitary treatment plant led the state in water pollution permit violations, according to a report released today called �Troubled Waters.� Compiled by the Public Interest Research Group, a not-for-profit environmental advocacy group, the report analyzed data from the U.S. Environmental Protection Agency, which monitors compliance with the Clean Water Act. The PIRG report�s data, which spanned an 18-month period from Jan. 1, 2002, to June 30, 2003, said East Chicago�s plant exceeded discharge limits 56 times into the Grand Calumet River into Lake Michigan. The most numerous of the pollutants discharged were sulfates and chlorides. In addition, there were one-day discharges of cadmium and chromium, considered more dangerous heavy metal pollutants.

The report also listed municipal treatments plants in Hammond, Gary, Chesterton, Crown Point, Lowell, Michigan City, Portage, South Haven and Valparaiso for exceeding permit standards. Companies with permit violations were the BP refinery in Whiting, ISG Burns Harbor and Indiana Harbor, Ispat Inland in East Chicago, NIPSCO generating stations in Gary, Michigan City and Wheatfield, and U.S. Steel in Gary and Portage. The report said U.S. Steel�s Gary Works discharged cyanide on 16 different days during the 18-month period. Cyanide is a byproduct from metal processing in coke plants. * * *

Tim Method of IDEM downplayed the report�s findings. �It�s a very oversimplified report, you can read a lot into it,� Method said. Method said Indiana follows the U.S. Environmental Protection Agency�s process for determining significant water quality problems. �The system used by the EPA for determining a significant problem is a much smaller subset. It depends on how you do the stats.�

Posted by Marcia Oddi on Wednesday, March 31, 2004
Posted to Environmental Issues

Indiana Decisions - Impact of Supreme Court's decision not to review landfill case

The LaPorte Herald-Argus reports in this story today on the impact of the Indiana Supreme Court's decision last week not to grant transfer in Bd of Comm. of LaPorte County, et al. v. Town & Country Utilities, Inc. , a 7/10/13 decision of the Indiana Court of Appeals. Some quotes:

A Gary company�s legal fight to site a landfill in Kingsbury Industrial Park is losing its punch.

The Indiana Supreme Court decided last week not to hear a petition from Town and Country Utilities, thereby upholding an earlier ruling by the Indiana Court of Appeals.

Town and Country wanted the state�s highest court to reverse the court of appeals� July 10, 2003, ruling that local communities have the authority over the state in deciding if there�s a need for a landfill.

In its 4-1 vote, the Indiana Supreme Court voted to deny Town and Country�s petition to transfer the case to its court.

Indiana Decisions - Two Supreme Court rulings posted today

Louis Simon, et al. v. United States (3/31/04 IndSCt) [Conflict of Laws]
Shepard, Chief Justice

The U.S. Court of Appeals for the Third Circuit has certified two questions regarding Indiana�s choice-of-law rules. We hold that there is a true conflict between the choice of law rules of Indiana and the District of Columbia because Indiana does not engage in d�pe�age and has not adopted the policy analysis component of the Restatement (Second) of Conflict of Laws approach. In so saying, we restate the Indiana choice of law analysis outlined in Hubbard Manufacturing Co. v. Greeson, 515 N.E.2d 1071 (Ind. 1987). * * *

D�pe�age is the process of analyzing different issues within the same case separately under the laws of different states. Although Indiana allows different claims to be analyzed separately, it does not allow issues within those counts to be analyzed separately. For example, an Indiana court might analyze a contract claim and a tort claim independently but would not separately analyze and apply the law of different jurisdictions to issues within each claim. D�pe�age has not been part of Indiana�s lexicon. [In a footnote the Court adds: "In fact, we could find only one case decided in Indiana that even mentions the word, and it was decided by a federal district court applying Arizona conflict of law rules under the Federal Tort Claims Act. See Estate of Sullivan v. United States, 777 F. Supp. 695, 698 (N.D. Ind. 1991)."] * * *

In conclusion, a true conflict exists between the choice-of-law rules of Indiana and the District of Columbia, and assuming that Indiana choice-of-law rules apply, Indiana would apply Indiana substantive law.

Amy M. Rhodes, et al. v. Mark D. Wright, et al. (3/31/04 IndSCt) [Torts]
Sullivan, Justice

This is the Tyson Chicken case. The 7/22/03 Indiana Law Blog entry on the Court of Appeals ruling in this case, captioned "Agriculture: Duty to business invitees," has been the most-read entry ever posted here.

The Court of Appeals panel last July affirmed the trial court grant of summary judgment for Defendants in a negligence action for the death of a worker on its premises. The Court of Appeals, as stated by the Supreme Court in today's opinion, held "that Defendants did not control the area where the accident occurred and that the danger was obvious. Finding genuine issues of material fact in this regard, we reverse."

The facts, as stated here by the Court:

On February 13, 2001, some time after 3:00 a.m., Dwaine D. Gurtz, a truckdriver for Tyson Foods, Inc., was struck and killed by a forklift while at Wright Brothers Farm. Defendants own the farm and raise chickens under a contract for Tyson. The accident occurred while Tyson employees were at the farm collecting some chickens. Gurtz parked his truck near one of the chicken houses and began unbooming chains from the trailer of the truck. Another Tyson employee who was in a chicken house picking up cages of chickens backed a forklift out of the chicken house. The forklift struck Gurtz from behind, pinning him between the back of the forklift and the trailer. He died approximately one hour later.

At the time of the accident, it was dark and foggy. The lights in the chicken houses were off and the outside of the chicken houses did not have any lighting to illuminate the loading area. Neither the backup lights nor the backup alarm on the forklift were working.

The Estate of Dwaine D. Gurtz sued Wright Brothers Farm for negligence in failing to light the loading area properly and failing to warn Gurtz of known dangers on the property. The trial court granted summary judgment for Wright Brothers Farm and the Court of Appeals affirmed. Rhodes v. Wright, 790 N.E.2d 577, 578 (Ind. Ct. App. 2003). We granted transfer pursuant to Ind. Appellate Rule 58(A) and now reverse.

In its analysis, the Court notes:

In negligence cases, summary judgment is �rarely appropriate.� Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996); accord Guy�s Concrete, Inc. v. Crawford, 793 N.E.2d 288, 293 (Ind. Ct. App. 2003), trans. denied, Modern Heating & Cooling, Inc. v. Crawford, 2003 Ind. LEXIS 1086 (Ind. Dec. 18, 2003). This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person � one best applied by a jury after hearing all of the evidence.

The conclusion:

These four grounds raised by Defendants in support of summary judgment cannot be resolved in such a hasty manner. The facts do not provide a clear answer as a matter of law, and a reasonable jury could find for either party on any of these issues. Summary judgment is therefore inappropriate.

Conclusion. Having previously granted transfer, we now reverse the judgment of the trial court. This case is remanded to the trial court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, March 31, 2004
Posted to Indiana Decisions

Indiana Law - Today's 7th Circuit Rulings

In GULEVSKY, SHMUEL E. v. BERKSON, BLAKE, an appeal from the ND Ill, ED, Judge Rovner writes:

Section 523(a)(2)(B) of the Bankruptcy Code makes nondischargeable debts procured by written misrepresentations of the debtor�s financial condition. But does � 523(a)(6) allow for debts procured by
oral misrepresentations of the debtor�s financial condition to be found nondischargeable? The bankruptcy court answered that question negatively and dismissed the complaint, and in a summary order, the district court affirmed. We agree with those courts and affirm the judgment of the district court. * * *

Finally, we note that in the conclusion of his brief, Gulevsky requests sanctions against Berkson for filing a frivolous appeal. The request will not be granted because it does not comply with the requirements of Federal Rule of Appellate Procedure 38, which requires sanctions requests to be presented in a �separately filed motion.� Although the rule does allow this court to sua sponte initiate sanctions proceedings, that power is discretionary. In any event, we do not believe that sanctions are warranted in this case. An appeal is frivolous when the appellant�s arguments are utterly meritless and have no conceivable chance of success. Berkson�s brief is relatively insubstantial but his argument is not so foreclosed by precedent that it warrants sanctions. [citations omitted; emphasis added]

A second decision by Judge Rovner today, USA v. RODRIGUEZ-CARDENAS, is also an appeal from the ND Ill, ED and deals with sentencing:

Alfonso Rodriguez-Cardenas pleaded guilty to conspiracy to distribute heroin and cocaine, 21 U.S.C. �� 846, 841(a)(1). At sentencing Rodriguez-Cardenas requested a two-level reduction for being a minor participant in the conspiracy, U.S.S.G. � 3B1.2, but the district court denied his request and sentenced him to 37 months� imprisonment. On appeal Rodriguez-Cardenas challenges the denial of the minor participant reduction, but the district court�s factual finding on that question is unassailable. We are publishing this opinion, however, to correct statements in several of our recent cases that might be read as inconsistent with a 2001 amendment that expressly rejected a limitation we had placed on eligibility for a mitigating-role reduction. U.S.S.G. � 3B1.2, App. C, amend. 635.

Posted by Marcia Oddi on Wednesday, March 31, 2004
Posted to Indiana Decisions

Environment - US EPA gets bad marks in two reports

"EPA Faulted on Clean-Water Violations: Consumer Interest Group's Study Details Lax Enforcement at Major Facilities" is the headline to this story today in the Washington Post. Some quotes:

The Environmental Protection Agency is failing to act against widespread violations of the Clean Water Act by plants and factories across the country, the U.S. Public Research Interest Group said yesterday based on a study it conducted.

More than 60 percent of all major facilities in the United States, or 3,700 out of 6,184, exceeded their Clean Water Act permit limits on discharges into waterways at least once between January 1, 2002, and June 30, 2003, according to the report. The facilities include manufacturing and electronic plants, as well as wastewater treatment and sewage plants.

"The numbers point out that enforcement is not a priority for this administration, and clearly little to nothing is being done to deter polluters from breaking the law," said Richard Caplan, the environmental advocate who authored the report for PIRG, a consumer advocacy group.

In addition, the Post reports that:

In a separate report, the public watchdog group Public Employees for Environmental Responsibility (PEER) found that EPA's enforcement actions have slowed under the Bush administration. In 2000, for example, the agency made 105 criminal referrals to the Justice Department. But in 2001, after the turnover in administrations, EPA made 42 referrals. The number dropped to 26 in 2002. "The enforcement doesn't come anywhere close to the extent of noncompliance," said Jeff Ruch, PEER's executive director. "There's high levels of violations, and the EPA's response has been anemic."

Here is the US PIRG press release for the report cited by the Post story. And here is the page from which you may access the March 2004 report, titled "Troubled Waters: An analysis of Clean Water Act compliance, January 2002-June 2003." In addition, you may from that page access an appendix for each state. Here is the link to the pdf Indiana Appendix, a 46-page document.

The other report referenced in the Post story, from Public Employees for Environmental Responsibility (PEER), is not yet available online. Here is the link to PEER's home page. The Wall Street Journal (paid subscription only) today has a story on page B2 today on the PEER Report. A quote:

In its report, PEER said Justice Department records show that overall, the department accepted and prosecuted 68% of the criminal cases brought to it by federal agencies last year. In contrast, only 33% of the cases referred by the EPA were accepted. The low prosecution rate means that "corporations who flout antipollution laws will continue to enjoy competitive advantages" said Jeff Ruch, executive director of the Washington-based group.

Posted by Marcia Oddi on Wednesday, March 31, 2004
Posted to Environmental Issues

Tuesday, March 30, 2004

Indiana Decisions - Oral argument scheduled for issues relating to release of counseling records of accused murderer

"St. Joseph County prosecutor has new hope of getting evidence," is the headline to this story today in the South Bend Tribune. Some quotes:

The Indiana Supreme Court has agreed to consider whether counseling records of accused murderer Jeffrey Pelley should be released to prosecutors. Oral arguments by the lawyers are scheduled for April 27 in Indianapolis.

Previously, a local judge and the Indiana Court of Appeals ruled the records should remain confidential under Indiana laws granting privilege to client communications of social workers and psychologists.

Deputy Prosecutor Scott Duerring, who is prosecuting the 15-year-old quadruple homicide, was very happy when he heard the news Monday. "It's encouraging," said Duerring, who has been trying to get access to the records for a year. "The (justices) obviously think it's an important issue and they must have something they want to do or they wouldn't have granted the petition for transfer," he added.

As to the issue on appeal, the story continues:

After the prosecution subpoenaed the counseling records, lawyers for the Family & Children's Center asked [St. Joseph Superior Court Judge Roland W. Chamblee Jr.] to quash or cancel the subpoena. The lawyers maintained the records should not be disclosed because of the confidentiality provision in the law pertaining to communications between social workers and psychologists and clients.

Chamblee reviewed the records privately last year and agreed the law protected their confidentiality and would not allow prosecutors to see them. The judge also found nothing that he believed qualified for a homicide exception in the law.

Chamblee and the appellate court agreed with the Family & Children's Center that the confidentiality provision applies to the social worker who counseled the Pelleys, even though the law extending privilege to social workers was not passed until 1990, a year after the final counseling sessions in question.

"The issue of retroactively applying the privilege is a case of 'first impression,'" Duerring noted.

There is more of interest in the story, which deserves a reading in full. The case is State of Indiana v. Robert Pelley. The 12/19/03 Indiana Court of Appeals opinion (now vacated) is available here. The Indiana Supreme Court oral argument is scheduled for Tuesday, April 27, 2004 at 9:45 a.m. Or you may watch it, live or archived, here.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Indiana Decisions

Indiana Law - Columbus attorney may have license suspended

The AP is reporting that:

A state disciplinary commission has recommended the Indiana Supreme Court suspend the law license of an attorney accused of helping to turn her law office into a front for a methamphetamine-dealing operation.

The court likely will decide during the week of April 12 whether to suspend Karon Perkins' license, said Seth Pruden of the Indiana Disciplinary Commission, which investigates misconduct by lawyers for the Supreme Court.

An emergency petition for an interim license suspension was filed Friday in Indianapolis, and Perkins has two weeks to respond, Pruden said.

View an earlier Indiana Law Blog entry here.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Indiana Law

Indiana Decisions - Four new Court of Appeals decisions posted today

Federated Rural Electric Insurance Exchange v. National Farmers Union (3/30/04 IndCtApp) [Insurance]

Gene and Carolyn Lasater v. Donald House, Sr. (3/30/04 IndCtApp) [Estates & Trusts]

Concerns admissibility of expert witnesses' testimony re "undue influence."

State of Indiana v. David Leon Jones (3/30/04 IndCtApp) [Criminal Law & Procedure]

"Concluding the jury instruction at issue does not entitle Jones to post-conviction relief and Jones� sentencing enhancements are not subject to [the double enhancement prohibition of Ross v. State], we reverse and remand."

Richard and Janet Orban v. Dana Krull, et al. (3/30/04 IndCtApp) [Torts]
Mathias, Judge

Richard and Janet Orban filed an accountant malpractice and a tortious interference with contract complaint against Dana Krull (�Krull�) in Kosciusko Circuit Court. Krull moved for summary judgment, and the Orbans moved for partial summary judgment. The trial court granted Krull�s motion and denied the Orbans' motion. The Orbans appeal, presenting the following restated issues for review:
Whether an accountant may be held civilly liable for releasing client information pursuant to an Indiana Department of Revenue (�IDR�) subpoena;

Whether the undisputed facts of the case establish Krull�s actions were not the proximate cause of the Orbans� alleged injuries;

Whether there was a contractual relationship for the Orbans to base their tortious interference with contract claim upon; and

Whether the only factually-disputed issue regarding the Orbans� malpractice claim is the amount of damages.
We conclude both parties have failed to meet their burden of establishing they are entitled to summary judgment. Accordingly, we reverse the trial court�s decision to grant Krull�s Motion for Summary Judgment, affirm the trial court�s decision to deny the Orbans� Motion for Partial Summary Judgment, and remand the case to the trial court for further proceedings.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Indiana Decisions

Indiana Decisions - Today's 7th Circuit Rulings

In CHUWAY, CALDEAN M. v. NAT'L ACTION FINAN, Judge Posner, writing for the panel, reverses and remands a decisions from the ND Ill., E.Div., concerning the Fair Debt Collection Practices Act. A quote: "Our conclusion does not place debt collectors on a razor�s edge, where if they say too little they violate the Act by failing to disclose the amount of the debt they are trying to collect and if they say too much they violate the Act by confusing the consumer."

In another Judge Poser-drafted ruling, CUYLER, GRETCHEN v. USA, the panel reverses the $4 judgment for the plaintiff and dismisses the suit in an appeal by the government of "a suit for wrongful death brought against the United States under the Federal Tort Claims Act, which, with limitations that we can ignore, makes the federal government liable for the torts of its employees to the same extent that they would be liable under the law of the place where the tort was committed, in this case Illinois."

MONTGOMERY, JERRY v. DAVIS, CECIL is an appeal from a decision by Judge Allen Sharp, ND Ind. This per curiam opinion begins:

Jerry Montgomery and Larriante Sumbry have long histories of filing frivolous lawsuits in this circuit. For this reason we have sanctioned both: in April 2000 we
fined Montgomery $500 and blocked future filings ... and Sumbry has both struck out under the Prison Litigation Reform Act, 28 U.S.C. � 1915(g), and been barred from filing civil suits until he pays all outstanding fees and sanctions ... . At issue now is whether additional sanctions are necessary.

After detailing the problem, the panel states:

This must stop. �Every paper filed . . . no matter how repetitious or frivolous, requires some portion of the institution�s limited resources. A part of the Court�s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.� In re McDonald, 489 U.S. 180, 184 (1989). Although McDonald refers to the Supreme Court�s responsibility to protect its own resources, the principle applies equally to us. * * *

Because both Montgomery and Sumbry have received federal habeas corpus review of their current convictions, they are effectively barred from filing any civil action in the district courts until they settle their debts to the federal judicial system.

We add for the sake of clarity that the prior orders sanctioning Montgomery and Sumbry remain in effect as written; this order does not abrogate any previously imposed sanctions. Additionally, the filing bar imposed by this order applies to any post-judgment motions Montgomery or Sumbry might try to file in any existing case. Finally, because this court disapproves of perpetual orders ... Montgomery and Sumbry may seek modification or rescission of this order, but not before two years have passed.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Indiana Decisions

Law - Lawyers' new means to track down clients

We have all heard stories of "ambulance chasers" and lawyers who sit by their police scanners, but this AP story may top them all. The lead:

Just as the work of police, college recruiters and employers is being transformed by ever-more efficient database technology, so is the legal profession.

Lawyers in many states can now track down the names and addresses of prospective clients�within hours of their legal entanglements�with the help of electronic records and information vendors.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to General Law Related

Indiana Economic Development - Indiana iron nuggets plant may be slipping away

Following up on the most recent (March 24th) Indiana Law Blog entry on the iron nugget plant that may be built in Indiana is this story published last weekend in the Duluth News Tribune, headlined "Nugget plant's site not ironclad: Officials will consider an alternate location in Minnesota for a commercial iron nugget plant." Some quotes [emphasis added]:

An alternative to the Northshore Mining Co. site will be considered for development of a $110 million, 500,000-ton-per-year commercial iron nugget plant.

The decision was made during a Friday conference call involving Gov. Tim Pawlenty, Iron Range Resources Commissioner Sandy Layman, Minnesota Pollution Control Agency Commissioner Sheryl Corrigan, Steel Dynamics Inc. president and chief executive officer Keith Busse, and Mesabi Nugget president Larry Lehtinen.

Construction of a commercial plant has been a topic of controversy for about a week after it was learned that Steel Dynamics, a Butler-Ind.-based minimill, might build the first large-scale plant in Indiana rather than at Northshore Mining Co. in Silver Bay, site of a successful 25,000-ton-per-year pilot-demonstration plant. That prospect might change if an alternate Minnesota site is identified.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Indiana economic development

Indiana Decisions - Court of Appeals to hear another chewing tobacco/breathalyzer case

A story today in the Terre Haute Tribune Star reports that the Indiana Court of Appeals will hear a case on the Indiana Statute University campus tomorrow, March 31st. The story reports that in the case, Fields v. State:

Fields, who was convicted in Shelby County of operating a vehicle while intoxicated, is appealing, claiming that the breath test he was given was invalid and inadmissible at trial because he had chewing tobacco in his mouth when the test was administered.

The prosecution has asked that Fields' brief be thrown out because Fields cited to and attached an article from a science journal to support his argument, but he did not present the article to the trial court.

The story notes that "Judge Ezra H. Friedlander is a member of the three-judge panel scheduled to hear the case." Judge Friedlander was also a member of the panel that last month ruled on another chewing tobacco/breathalyzer case, State v. Molnar (2/13/04). See the Indiana Law Blog entries here and here.

Re the "science journal" issue mentioned in the Tribune Star story, the docket in Fields v. State contains this order by Chief Judge Sanford Brook, dated 1/8/04:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS THAT THE APPELLEE'S MOTION TO STRIKE PORTIONS OF BRIEF OF APPELLANT IS HELD IN ABEYANCE TO BE DECIDED BY THE WRITING PANEL OF JUDGES AFTER THE CASE IS FULLY BRIEFED AND SENT TO THE COURT FOR DECISION. PERSONNEL IN THE OFFICE OF THE ADMINISTRATOR OF THIS COURT ARE DIRECTED TO MARK THEIR DOCKETS, TO BRING THE MOTION TO STRIKE TO THE ATTENTION OF THE WRITING PANEL OF JUDGES.

Further, an order by Acting CJ John Sharpnack, dated 2/24/04, states:

THE COURT SET THIS CASE FOR ORAL ARGUMENT FOR THE TIME AND PLACE TO-WIT: 10:00 A.M., LOCAL TIME WEDNESDAY, MARCH 31, 2004 AND THE COURT HEREBY DESIGNATES DEDE I. INDIANA STATE UNIVERSITY TERRE HAUTE, INDIANA AS THE PLACE FOR HOLDING SAID ARGUMENT. DIRECTION'S TO ISU FROM INDIANAPOLIS ARE ATTACHED.

THE COURT IS PARTICULARLY INTERESTED IN THE PARTIES ADDRESSING THE JUDICIAL NOTICE ISSUE AT THE BEGINNING OF THE ARGUMENT. EACH SIDE IS ALLOTTED TWENTY MINUTES FOR ARGUMENT.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Indiana Decisions

Environment - Indiana Wetlands Reserve Program participation

"Farmers support wetlands program: Feds plan to lease flood-prone property in northwest Indiana, reclaim lost marshes." This is the headline to a brief AP story today in the Indianapolis Star. A quote:

HEBRON, Ind. -- A year after the federal government gave up on a controversial wildlife refuge along the Kankakee River, officials are exploring another approach to re-establishing wetlands along the waterway.

Farmers and other landowners are being offered a chance to participate in the Wetland Reserve Program, in which the federal government leases flood-prone property and converts it into wetlands.

Already, so many northwest Indiana farmers have signed up that there is a waiting list for approval.

For more about the Indiana Wetlands Reserve Program, check here. [Unfortunately, the page indicates it was last updated 12/8/00.]

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Environmental Issues

Law - Alien Tort Claims Act

NPR's Nina Totenberg this morning examined the history behind Tuesday's Supreme Court hearing in the "Alien Tort Claims Act. If a lower court decision is upheld, the act would make government agents accountable for kidnapping suspects from foreign nations and putting them on trial in the United States." Listen here.

Earlier Indiana Law Blog coverage of this issue may be found here.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to General Law Related

Indiana Economic Development - NPR report features Indiana economy

NPR this morning had an interesting report on how states were dealing with budget shortfalls. The State of Indiana was featured. Listen here.

Posted by Marcia Oddi on Tuesday, March 30, 2004
Posted to Indiana economic development

Monday, March 29, 2004

Indiana Decisions - 7th Circuit issues two decisions today

BEISCHEL, KAREN v. STONE BANK SCHOOL DISTRICT, from the ED Wis., involves a school principal's employment contract.

In LID ELECTRIC INC v. INT'L BROHD ELEC 134, from the ND Ill, ED, Judge Easterbrook rules:

No matter when negotiations begin, however, bargaining�and either an agreement or an impasse�must precede any change in terms and conditions under which the operating engineers are employed. To the extent that the EJAB�s order requires Lid to implement drug testing for employees represented by Local 150, without first bargaining collectively with that union, it commands a violation of federal law and must be set aside.

The judgment of the district court is vacated, and the case is remanded with instructions to enter an order enforcing the arbitral award, except to the extent that it requires Lid to violate the bargaining rights of workers represented by other unions.

Posted by Marcia Oddi on Monday, March 29, 2004
Posted to Indiana Law

Indiana Law - Another Tale of Reassessment Woes

The Michigan City New-Dispatch has a story today reporting that the LaPorte County/Michigan Twp. 2003 property tax reassessment must be redone. The story reports that the company hired to do the reassessment didn't fulfill the contract and the payments were held back. More:

What exactly was wrong with Michigan Township's reassessment?

The simple question to answer would be, what was right? And that answer would be not much at all.

"There were problems all over with the land values," McDaniel said.

Neighborhoods in the lakefront area were drawn perpendicular instead of parallel to the lakefront. So a house three blocks back from the lake would be paying the same as one on the beach.

With parallel neighborhoods, lakefront property would have one rate, and those a few blocks away would be at a different rate. McDaniel said there also were many errors in the commercial properties.

Posted by Marcia Oddi on Monday, March 29, 2004
Posted to Indiana Law

Indiana Decisions - Supreme Court accepts certified questions from federal district court

Patricia Gribben v. Wal-Mart Stores, Inc. (3/26/04 IndSCt)

This Order deals with two certified questions of state law from the USDC, SD Ind.

The questions arise in Patricia Gribben v. Wal-Mart Stores, Inc., case no. 1:03-cv-1411-VSS/SEB. The Order announces that the questions, as framed by the federal district court, are:

1. Does Indiana law recognize a claim for �first-party� spoliation of evidence; that is, if an alleged tortfeasor negligently or intentionally destroys or discards evidence that is relevant to a tort action does the plaintiff in the tort action have an additional cognizable claim against the tortfeasor for spoliation of evidence?

2. If so, what are the elements of the tort, and must a plaintiff elect between pursuing the spoliation claim and utilizing an evidentiary inference against the alleged tortfeasor in the underlying tort action?

The Order announces that "the certified questions are accepted pursuant to Appellate Rule 64" and goes on to set the briefing schedule.

Posted by Marcia Oddi on Monday, March 29, 2004
Posted to Indiana Decisions

Law - "Got beef?"

Following on the heels of our Indiana Law Blog February entry titled "'Got Milk?' goes the way of 'Got Pork?' and 'Got Mushroom?'" is this AP story today on the beef checkoff program. The lead:

BILLINGS - Nearly seven years after Steve and Jeanne Charter first refused to pay a $1-per-head fee on cattle they sold, a federal appeals court is set this week to hear the Montana ranchers' challenge to the national beef checkoff. Oral arguments are set for Wednesday in Seattle before a three-judge panel of the 9th U.S. Circuit Court of Appeals.

Some background on other cases is included in the story:

The Charters' case is among a number of challenges to different checkoff programs. In 2002, a federal judge in South Dakota declared unconstitutional the same beef checkoff, saying the mandatory program infringes on the First Amendment rights of cattle producers. That decision was later affirmed by the 8th U.S. Circuit Court of Appeals. Attorneys in the Charter case said the U.S. Supreme Court will likely decide in the next few months whether to review the 8th Circuit decision.

In 2002, a federal judge in Michigan declared a pork-checkoff program "unconstitutional and rotten." The U.S. Supreme Court in 2001 voided a checkoff program for mushrooms as unconstitutional. But the high court has upheld a program for fruit trees.

See also this comprehensive Nov. 1, 2003 ILB entry.

Posted by Marcia Oddi on Monday, March 29, 2004
Posted to General Law Related

Indiana economic development - Outsourcing in historical perspective

Not available online, but well worth a read, is a front-page story in the Wall Street Journal titled "Finding Lessons Of Outsourcing In 4 Historical Tales." Finding many "historical echoes," the WSJ reports that "losing skilled jobs to low-wage foreign competition is as old as the Industrial Revolution."

Posted by Marcia Oddi on Monday, March 29, 2004
Posted to Indiana economic development

Indiana Law - More on the Lake County suit involving Arthur Andersen LLP

This story today in the Munster NWI Times begins:

CROWN POINT -- Faced with the prospect of owing Arthur Andersen LLP as much as $10 million for its canceled reassessment contract, Lake County will stop paying all reassessment bills, which a county commissioner said could throw the county into financial chaos. * * * And until an Indianapolis judge rules on Andersen's lawsuit and determines if and how much money the defunct firm should get paid, county attorney John Dull has advised the commissioners to cast aside all other reassessment invoices as well. * * * The concern is that Lake County is legally required to pay for the reassessment and once the state signs the invoices, if the county won't approve payment, Indiana officials can take the money out of different funds. The state could withhold casino revenue, for instance, or property tax replacement credits. The county, and 16 cities and towns, depend on casino dollars for infrastructure and other capital improvements.

Here in Indianapolis [but receiving little or no coverage in the local press], Marion County Judge Gerald Zore currently is hearing Arthur Andersen's suit against Lake County. The facts of the case are complicated. The upshot, as set out in the NWI Times story today, is that:

The Indiana Department of Local Government Finance hired Andersen in 2001 to perform the court-ordered property reassessment in Lake County But state officials pulled the $25 million contract in April 2002 and hired CLT to run the reassessment instead. The cancellation came in the wake of the Enron scandal, in which the federal government indicted Andersen officials for obstruction of justice.

Because the state controlled its contract, Andersen in 2002 sued the state's local government finance department, and not Lake County But local taxpayers still are potentially on the hook for some of those millions because the reassessment law requires the county to pay for the contract costs.

However, state law also caps Lake County's reassessment costs at $25.5 million, and DLGF Commissioner Beth Henkel has said the county's fiscal responsibility to Andersen could be limited.

Furthermore, state and county officials believe Andersen actually did little work on the reassessment before its contract was terminated, although former DLGF commissioner Jon Laramore signed Andersen's six invoices, totaling $9.6 million in 2002. Laramore, now chief legal counsel to Gov. Joe Kernan, approved one such payment -- for $2.8 million -- five days after the state signed Andersen's contract.

When asked in an earlier interview why payments on work now being questioned were approved, Henkel said the department was "under duress to get the reassessment going."

See an earlier (3/19/04) Indiana Law Blog entry here. Also of interest, but unfortunately no longer available online, is a story from the Gary Post Tribune dated 3/24/04. Some quotes from that story:

Three years after the fall of Arthur Andersen, Lake County taxpayers are still on the hook for what state officials now admit may have been the most expensive reassessment in U.S. history.

Attorneys for the deposed accounting firm were in court in Indianapolis on Monday, asking the judge to enforce their $25 million contract, awarded in November 2001. Within weeks of the contract being signed, Andersen began imploding in the Enron scandal. The state pulled its contract in April 2001, but not before Andersen submitted six bills totaling $9.6 million.

When the $25 million price tag was unveiled, it shocked Lake County officials. The 2001 law that turned over responsibility for reassessment to the state also cut out Lake County officials from the negotiations. The law dictated that Lake County would pay for the assessment, but that the state could control the contract. Even before state regulators were hounded by county officials, court records in the Andersen case reveal that state officials knew they were about to sign one of the most expensive reassessment contracts in the country.

�(It was the) highest or second highest per-parcel re-assessment price in the United States � in the history of the United States as far as we could determine,� said Department of Local Government Finance chairman Jon Laramore, in his July 24 deposition to Andersen�s attorneys. Laramore was one of the contract negotiators. * * *

Laramore went on to be legal counsel for Gov. Joe Kernan. Interviewed in his Statehouse office, Laramore said state regulators felt they had little choice. After the General Assembly passed the law requiring the reassessment, the state was under pressure to sign a contract. The state was under a deadline set by the Indiana Tax Court to conduct a reassessment, based loosely on market value principles. Lawmakers, led by then Rep. Dan Dumezich, had required the state use one of the five major accounting houses to oversee the assessment. Andersen had been the only bidder. * * *

In his deposition, Laramore concedes that even before the details of the contract were made public, he had doubts about whether Lake County would pay for the reassessment. He believed the law passed by the General Assembly may not have been constitutional. Laramore said he could not remember whether he expressed those doubts to anyone, including lawmakers or Gov. Frank O�Bannon.

In September 2001, a letter from the Northwest Indiana delegation to the General Assembly urged the state to solve the dispute with Andersen and sign a contract.

One of the questions being asked more than three years later is: Why did the state agree to a schedule of payments that gave Andersen more than 40 percent of its $25 million before the first home was assessed? Court documents reveal that the payments were made high intentionally at the beginning, including a first payment of $3.1 million. The high initial payments were, in part, a test. �There were some doubts as to whether Lake County would pay,� Laramore said.

Posted by Marcia Oddi on Monday, March 29, 2004
Posted to Indiana Law

Sunday, March 28, 2004

Indiana law - Access to county voter data restricted

"Access to voter data restricted: Some local lawmakers say database is used as a political tool." That is the headline to this lead story today in the Munster NW Indiana Times. Rather than making an electronic copy of the Lake County 369,511-record registration database available to the Times pursuant to its FOIA request (as Porter County, for instance, has done), according to the Times story Lake County Commissioners will provide only a 13,736-page paper copy at a cost of $3,294.

The state election board also receives a copy of each county's voter registration database, but state law requires it to sell the database as a combined document for $5,000.

State parties buy it and provide it to statewide candidates and county chairs.

The state's public access counselor, Michael Hurst, said state law is written so that each county can adopt a uniform policy about what format it uses to provide the registration information. While Hurst said electronic versions can be more useful than paper versions, he said Lake County's resolution fell within state law.

Dale Simmons, the Republican attorney for the state election board, said a number of local boards have expressed fears about identity theft because some older files may contain Social Security numbers. These records can be accessed on paper at any registration board, but Simmons said the electronic version could lead to more widespread fraud. * * *

LaPorte County election officials said they sell their electronic database for $100. Marion County officials said they will not provide an electronic version.

April Sellers, an attorney for the city of Indianapolis, said the reason is, "It's always the way it's been done."

David Stamps, executive director for the Hoosier State Press Association, said denying such an enormous public records file in a usable format violates the spirit of public access laws, if not the letter of the law. The intent is to ensure better government through public oversight, he said.

"I'll do anything to get this cleaned up," [State Sen. Rose Ann Antich-Carr, D-Merrillville] said about the voter rolls and Lake County's reputation statewide. "I'm sick and tired of being embarrassed to be from Lake County."

Posted by Marcia Oddi on Sunday, March 28, 2004
Posted to Indiana Law

Indiana economic development - More on Indiana's advantages in the manufacturing arena

Following up on the Indiana Law Blog entry from Monday, March 22, titled "Environment - Indiana's economic development advantage in the manufacturing area," and the entry from March 24 titled "More on the Iron Nugget Plant," is an article from The Fresno Bee that incidentally highlights some of Indiana's other advantages in the economic development wars between the states. The theme of the lengthy article is that people from other parts of California are relocating to the San Joaquin Valley because of its "affordable housing." However, the piece continues, the cost of housing has doubled in the Valley over the past 5 years, unemployment is high, and wages are low. Then comes the discussion that caught my eye [emphasis added]:

At Sportsmobile West Inc. in south Fresno, workers install televisions, beds, toilets, sinks and stoves into vans, turning them into custom-built motor homes.

Employees complete a van a day -- and sell about 350 a year, says company president Alan Feld.

But it's not enough to keep up with demand. Feld would like to build another plant and double his 50-person work force.

Instead, he's thinking of leaving the state.

"The state of California makes more money on my product than I do," says Feld, who outgrew two locations before buying his 60,000-square-foot plant on Bagley Avenue in 2002.

Last year, company sales rose by 20%, but profits dropped 45%, Feld says.

Various taxes stripped $1.4 million from last year's $10 million in sales.

His workers' compensation insurance premiums run about $1,000 a day. In three years, the premiums went from being No. 30 on his business expense list to his third-largest cost.

Sportsmobile West's insurance premium for machine shop workers is now about 1,560% higher in California than it is at the company's plant in Huntington, Ind. The California premium for salespeople -- employees who don't work on the manufacturing side -- is about 1,940% higher than Indiana's rate.

Aware of California's high rates, other states are trying to recruit Sportsmobile.

"Is workers' compensation crushing your bottom line?" asks a brochure from New Mexico. "You might find the New Mexico business climate better for your health."

Posted by Marcia Oddi on Sunday, March 28, 2004
Posted to Indiana economic development

Law - Voting Rights of Felons

Centering on Florida, this story in the NY Times today, headlined "Disenfranchised Florida Felons Struggle to Regain Their Rights," surveys the rights of felons to vote. Some quotes:

Only Maine and Vermont allow felons to vote even while they are in prison. Besides Florida, only Alabama, Iowa, Kentucky, Mississippi, Nebraska and Virginia take away all felons' voting rights and do not automatically restore them.

"Why should we keep people from voting after we spent all this money rehabilitating them?" Representative Kendrick B. Meek, a Miami Democrat, said. "Why stand in judgment on whether they should vote or not? This is politicians standing in and playing the role of virtuecrat."

Particularly interesting is this graphic accompanying the story, that shows in progressive maps the number of states that prohibit felons from voting: (1) while in prison; (2) while on parole; (3) while on probation; (4) after sentence is completed, for certain types of felons; (5) after sentence is completed, for all felons. According to the graphic, the seven "states that prohibit felons from voting after their sentences are complete all have some sort of clemency process that can restore voting rights in some cases."

This March 2, 2004 report, from the Seattle Times, tells much the same story. Some quotes:

In Washington, like 47 other states, most felons can't vote anyway. But a lawsuit pending here and similar cases across the country have asked the courts to overturn state laws that keep felons from the ballot box, claiming the laws discriminate against minorities who make up a disproportionate number of the nation's prisoners. So far, the felons have won some key rulings here and in Florida.

So does this report at MTV.com. Some quotes:

It may come as a shock to our generation, but the United States has never treated voting as a "universal right." When America was founded, only landowners could vote. But the electorate has broadened to include blacks, women and people without property. As the groups of folks who actually aren't allowed to vote becomes smaller � now only felons and those under 18 � it begs the question, should everyone vote? Is it a right or a privilege?

Proponents of voting rights for incarcerated people say it is the former. "There needs to be a distinction between legitimate punishment for crime and the loss of a fundamental right of citizenship," argues Marc Mauer, assistant director of the Sentencing Project.

And most other countries agree. No other democracy denies the vote to ex-offenders who have completed their prison sentences.

For a strong opinion piece, see "In U.S., voting isn't the right that it should be," from the March 21 Albany Times-Union. A quote:

Among 119 electoral democracies in the world, the United States is one of 11 whose constitutions do not include the right to vote and to be represented. This embarrassing national secret reflects our origins as a slave republic in which votes were cast only by white male property owners older than 21. Universal suffrage was never on the agenda in Philadelphia, and the founders left the tricky issue of voter qualifications to state legislatures. Only gradually was the electorate broadened, with anti-discrimination amendments that prevent disenfranchisement based on race (the 15th), gender (the 19th) and failure to pay a poll tax (the 24th).

The Caltech-MIT/Voting Technology Project mentioned in a number of these articles may be accessed here.

Posted by Marcia Oddi on Sunday, March 28, 2004
Posted to General Law Related

Friday, March 26, 2004

Indiana Decisions - 7th Circuit rules on late term abortion subpoenas by feds

How Appealing posted an entry late this afternoon that begins:

BREAKING NEWS -- Divided Seventh Circuit panel affirms federal district court order refusing enforcement of the federal government's subpoena to Northwestern Memorial Hospital for medical records of late term abortions: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit, issued late today, at this link. Circuit Judge Richard A. Posner wrote the majority opinion, in which Circuit Judge Ann Claire Williams joined. Circuit Judge Daniel A. Manion dissented from the court's refusal to enforce the subpoena.

Access the entire How Appealing post here. Access the panel's ruling here.

[Update 3/27/04] "Appeals Court Backs Privacy of Hospital Abortion Records," headlines this story this morning in the NY Times. Some quotes:

A federal appeals court on Friday rejected the Justice Department's demand for abortion records from Northwestern Memorial Hospital in Chicago, saying the disclosure of the records would compromise the privacy of women who had abortions there.

The decision, by the United States Court of Appeals for the Seventh Circuit, in Chicago, was the first time an appeals court has weighed in on the politically charged question of whether the federal government has a right to demand abortion records in its defense of the Partial-Birth Abortion Ban Act. The ruling followed conflicting opinions from several trial courts around the country. * * * Federal courts in Manhattan, San Francisco, and Lincoln, Neb., are set to begin trials next week in separate lawsuits seeking to block the enactment of the abortion restrictions on the grounds that they would prevent medically needed procedures.

This story, titled "Abortion records protected by court," appears in today's Chicago Tribune. Some quotes from the Trib's comprehensive coverage:

The government also never adequately explained why it needed the 45 patients' records for a New York trial scheduled to start Monday, the court held in a decision written by Judge Richard A. Posner.

At oral argument earlier this week, the court noted in its opinion, "We pressed the government's lawyer repeatedly and hard for indications of what he hoped to learn from the hospital records, and drew a blank."

[Update 3/28/04] Here is a document from the U.S. DOJ titled "STATEMENT OF MONICA GOODLING, SPOKESWOMAN FOR THE JUSTICE DEPARTMENT, REGARDING THE SEVENTH CIRCUIT RULING IN THE PARTIAL-BIRTH ABORTION CASE."

Posted by Marcia Oddi on Friday, March 26, 2004
Posted to Indiana Decisions

Indiana Decisions - Two new Court of Appeals rulings posted; one older ruling from Tax Court

James & Della Lovings v. Dave Thomas (3/26/04 IndCtApp) [Torts]

In the Matter of the Guardianship of Josephine A. Hickman (3/26/04 IndCtApp) [Estates & Trusts]

Meridian Towers East & West v. Washington Township Assessor, Marion County (12/23/03 IndTaxCt) [Real Property Assessment]

FISHER, J.
Meridian Towers East & West, a Limited Liability Company (Meridian), appeals the Indiana Board of Tax Review�s (Indiana Board) final determination valuing its real property for the 1998 tax year. The issue is whether Meridian�s improvements should have been awarded a 74% obsolescence depreciation adjustment. For the following reasons, the Court REVERSES the Indiana Board�s final determination.

[Update 3/29/04] As to why the Meridian Towers ruling, issued 12/3/03, is being posted by the Tax Court now, the docket of the case indicates that on 3/25/04 the Court ruled that petitioner's "motion for publication of order" was granted (this is currently the final item on the docket). Also of interest is the 2/11/04 docket entry, re "the underlying issue in this motion is the extent to which this court and the Indiana board of tax review may use treatises or other authority not in the record as a basis for its decision."

Posted by Marcia Oddi on Friday, March 26, 2004
Posted to Indiana Decisions

Indiana Decisions - Two Important Rulings Today by 7th Circuit

WALLACE, DONALD R. v. DAVIS, CECIL is an appeal from the SD Ind. Here is the beginning of the panel's opinion affirming Judge Barker's ruling:

EASTERBROOK, Circuit Judge. Donald Wallace killed an entire family in cold blood. He broke into a house to commit a burglary and found the occupants at home. He tied up the parents and shot each in the head to prevent them from identifying him. Then he shot both children to stop them from crying. This crime, the culmination of a long criminal career, led to a death sentence. The Supreme Court of Indiana affirmed, 486 N.E.2d 445 (1985), and rejected Wallace�s bids for collateral relief. 553 N.E.2d 456 (1990); 640 N.E.2d 374 (1994). Wallace filed his federal petition for a writ of habeas corpus before enactment of the Antiterrorism and Effective Death Penalty Act of 1996, which therefore does not apply. See Lindh v. Murphy, 521 U.S. 320 (1997). The district court denied Wallace�s petition. 2002 U.S. Dist. LEXIS 22353 (S.D. Ind. Nov. 14, 2002).

CHRIST UNIVERSAL MIS v. CITY OF CHICAGO at first glance appears to involve the applicability of the Religious Land Use and Institutionalized Persons Act (�RLUIPA�). However, although the Church here is challenging a portion of the Chicago Zoning Ordinance (�CZO�), the ruling turns on the procedural effectiveness of an amendment to the zoning code rather than the RLUIPA.

Posted by Marcia Oddi on Friday, March 26, 2004
Posted to Indiana Decisions

Indiana Decisions - Press Reports of Yesterday's Appeals Court Decision

This AP story (headlined "Court Blasts Police for 'Dangerous' Arrest" in the Fort Worth Texas Sun Telegram) reporting on the Indiana Court of Appeals ruling yesterday in the case of Osborne v. State (scroll down for yesterday's Indiana Law Blog entry) has been picked up all over the country this morning. Some quotes:

INDIANAPOLIS - An appeals court Thursday scolded police for encouraging a man who had been drinking and doing drugs to speed through a town so officers could pull him over and arrest his passenger for possession of cocaine.

The staged arrest was "outrageously dangerous," the Indiana Court of Appeals said, ruling unanimously to suppress the evidence found on passenger Richard W. Osborne. * * *

"They released a missile over which they had no control in the form of a Honda Prelude onto the streets of southern Indiana by not only failing to prevent Turner from driving, but actually encouraging him to drive by agreeing to and acting upon this plan," the court said.

The story has appeared in papers as far away as Great Britain (Guardian.co.uk).

Here is the Indianapolis Star story, headlined "Cops told man on alcohol, drugs to drive: Court rebukes police for urging motorist to speed so they could arrest his passenger." Some quotes:

An appeals court sharply criticized Indiana State Police on Thursday for conducting an "outrageously dangerous" traffic stop by knowingly encouraging an informant under the influence of drugs and alcohol to speed through a small town. * * *

Thursday, a three-judge panel of the Indiana Court of Appeals ruled the traffic stop unconstitutional because the police used unreasonable and dangerous means to trap Osborne. The judges rebuked the police for flouting Indiana's public policy and encouraging drunken and drugged driving.

[Update 3/27/04] This editorial, titled "Outrageous stunt by law enforcement," appears in this morning's Indianapolis Star.

Posted by Marcia Oddi on Friday, March 26, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending March 26, 2004

Here is the Indiana Supreme Court's transfer list for the week ending March 26, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, March 26, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - New Supreme Court Orders of Final Resolution in Attorney Disciplinary Cases Posted

The Gary Post-Tribune reports here today that:

The Indiana Supreme Court has issued a public reprimand against an East Chicago attorney for violating professional rules of conduct. Sonya A. Morris, who is also the East Chicago city court judge, is being reprimanded for her action as a private attorney.

Six disciplinary orders, including that against Judge Morris, were posted here by the Indiana Supreme Court this week:

In the Matter of John Charles Anderson, IV
In the Matter of Thomas D. Margolis
In the Matter of Sonya A. Morris
In the Matter of Steven J. Ouellette
In the Matter of Ashanti Patrice Butler
In the Matter of Joseph D. Howard

Posted by Marcia Oddi on Friday, March 26, 2004
Posted to Indiana Decisions

Thursday, March 25, 2004

Indiana Decisions - Several interesting 7th Circuit decisions today

Among the decisions today of the 7th Circuit are the following: KESTREL COAL PTY LTD v. JOY GLOBAL INC is a decision by Judge Easterbrook reversing ED Wis. Judge Muir in an international law matter. PENA v. AM. MEAT PACKING concerns "a class action suit against AMPAC for violations of the Worker Adjustment and Retraining Notification Act (�WARN Act�). At issue was whether AMPAC could have reasonably foreseen the plant shutdown so as to provide the employees prior notice. The district court found for AMPAC on summary judgment. Plaintiffs appeal; we reverse." US v. BUCHANAN affirms a decision of SD Ind's Judge Tinder. And in US v. FRYKHOLM, a decision involving a Ponzi scheme; Judge Easterbook begins: "Linda Frykholm must have the tongue of an angel, though she has the morals of a fiend. She persuaded people to invest $15 million in a get-rich-quick scheme, even though the promises she made were transparently too good to be true (100% return in a month) and she had no means to back her promises."

Posted by Marcia Oddi on Thursday, March 25, 2004
Posted to Indiana Decisions

Indiana Law - Kokomo attorney faces misdemeanor child pornography charges

Unfortunately, more news today of lawyers allegedly behaving badly. The Kokomo Perspective reports here: "In a press release issued on March 23 by Special Prosecuting Attorney Michael D. O'Neall of Jasper County, it was confirmed that charges have been brought against local attorney Steven Raquet related to child pornography." The press release is reproduced in full in the story.

Posted by Marcia Oddi on Thursday, March 25, 2004
Posted to Indiana Law

Indiana Law - Update on Attorney Changed in Meth Operation

Updating the ILB entry from 3/21/04 headed "Methamphetamine rampant in Indiana rural counties; Columbus attorney charged in alleged meth operation" is this AP story today, with the lead:

COLUMBUS, Ind. -- An attorney accused of helping to turn her law office into a front for a methamphetamine-dealing operation will be transferred to a state prison for her safety, officials said.

Circuit Court Judge Stephen Heimann ordered Wednesday that Karon Perkins, 44, be moved to the Indiana Women's Prison in Indianapolis under the Safekeeper Program.

Posted by Marcia Oddi on Thursday, March 25, 2004
Posted to Indiana Law

Indiana Decisions - Three Posted by Court of Appeals

Richard W. Osborne v. State of Indiana (3/25/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Baker, Judge

Today we are asked to determine whether a police officer may encourage a person on home detention to speed through an inhabited area while under the influence of alcohol and drugs in order to effectuate a pretextual stop to allow them to detain and search the occupants of the vehicle. We find that they may not.

Appellant-defendant Richard W. Osborne brings this interlocutory appeal challenging the trial court�s denial of his motion to suppress evidence. Specifically, he challenges the reasonableness of the stop under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Indiana Constitution. * * *

Based on the totality of the circumstances, this is the precise type of police misconduct that the exclusionary rule is meant to deter. We are confident that if not for the finding that Osborne had no standing to raise a motion to suppress, the trial court would have reached the same conclusion.

Because the actions of the police could certainly be considered outrageously dangerous in these circumstances, we find that the intrusion here by the police was unreasonable. Inasmuch as reasonableness is the touchstone of the constitutional analysis, Osborne�s rights under Indiana Constitution Article I, Section 11 were violated. Thus, his motion to suppress should have been granted. Because we conclude that the search violated his rights under the Indiana Constitution, we need not address Osborne�s Fourth Amendment argument. The order of the trial court is reversed. We remand to the trial court with instructions to grant Osborne�s motion to suppress.

Deborah C. Steiner v. Bank One, et al. (3/25/04 IndCtApp) [Family Law; Estates & Trusts]

Madan Verma d/b/a Madan Construction Company, Inc., et al. v. D.T. Carpentry, LLC. (3/25/04 IndCtApp) [Worker's Compensation]

Posted by Marcia Oddi on Thursday, March 25, 2004
Posted to Indiana Decisions

Wednesday, March 24, 2004

Environment - Several Indiana stories today

Air Permits. From the Washington Indiana Times-Herald, this story on the public hearing for Grain Processing Corporation's (GPC's) Title 5 air quality permit application.

Jefferson Proving Grounds cleanup. From the Madison Courier, this story headlined "EPA renews concerns about extent of JPG cleanup plan." This looks to be a federal interagency dispute.

Confined feeding. From the Chicago Tribune, a major story titled: "Factory farm foes fed up: Sick of the foul odors and government inaction, critics of huge swine operations are taking complaints to court" A quote:

From Alabama to Illinois, grass-roots groups have turned to the courts in an attempt to shut down industrial-style concentrated animal feeding operations, or CAFOs, or to keep them from being built. In Iowa alone, 14 lawsuits are pending that allege hog farms are nuisances.

"People who live in these rural communities are completely fed up," said Melanie Shepherdson, an expert on factory farms with the Natural Resources Defense Council. "When you have the state government and the federal government not doing anything about it, then the people who live in these communities say, `We don't want to deal with that, and if you're not going to clean it up, we're going to hire our own lawyer.'"

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to Environmental Issues

Indiana Decisions - New postings today from Supreme Court and Court of Appeals

Matter of Michael C. Kendall (3/24/04 IndSCt) [Attorney Disciplinary Action]
Dickson, Justice

Among the matters to be clarified in this case are two questions important to many practicing Indiana lawyers. First, when a lawyer receives a payment for legal services to be rendered in the future, must the lawyer hold the funds in a trust account until earned? Second, may the lawyer's fee contract specify that all or a portion of a preliminary (or advanced) fee is nonrefundable?

Philip R. Davis v. Union Federal Bank of Indianapolis (3/24/04 IndCtApp) [Real Estate; Banking]

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to Indiana Decisions

Kudos for the Indiana Law Blog

I received a nice note this morning from Allen Taylor of Dura Builders, who wrote: "I continue to find the Indiana Law Blog a vital part of starting my day. Thanks again for your time and effort in maintaining it."

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to About the Indiana Law Blog

Environment - China's ineffective environmental controls lead to massive pollution damage

If you get the Wall St. Journal (not freely available online), check out this story today on page A18 headlined "Polluters in China Feel No Pain." Along with photos of raw sewage and streetcleaners wearing full-face masks, the story details how ineffective existing controls are. One quote:

When a fertilizer plant in southwestern China tried to expand production earlier this month, it inadvertently dumped so much nitrate and ammonia into the local river that the chemicals killed 440,000 pounds of fish, halted farm irrigation in the area and poisoned drinking water for several cities downstream.

The punishment -- such a small fine that an official at China's EPA states the polluters write-off the cost as insignificant.

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to Environmental Issues

Indiana Decisions - Valpo attorney faces possible suspension

"The Indiana Supreme Court is considering whether to punish a prominent Valparaiso trial lawyer." That is the lead today from this story in the NW Indiana Times.

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to Indiana Decisions

Environment - Supreme Court rules on Everglades CWA case

As reported today here in the NY Times:

Separately on Tuesday, the court ruled unanimously in a Clean Water Act case from the Florida Everglades that a pumping station that conveys pollution from one body of water to another remains subject to the law's requirement for a permit, even if the pump is not itself the source of the pollution.

But the court sidestepped the most provocative assertion in the case, put forward by the Bush administration: that no permit is required in that circumstance because all the country's navigable waters are "unitary." Since the law requires a permit for the "addition" of pollution to the water, pollution that is simply moved within the "unitary" water system cannot be said to be added, the administration argued.

Writing for the court today in South Florida Water Management District v. Miccosukee Tribe, No. 02-626, Justice Sandra Day O'Connor said this new argument needed to be presented first to the lower courts, where the case now returns.

Thanks to How Appealing, here are links to two Florida stories today about the ruling, the first, from the PalmBeachPost.com, is headlined "High court ruling in Everglades case pleases both sides." The second, titled "Glades pumping-station case sent back to court in Miami," is from the Miami Herald.

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to Environmental Issues

Environment - More on the Iron Nugget Plant

Following up on the Indiana Law Blog entry from Monday, March 22, titled "Environment - Indiana's economic development advantage in the manufacturing area," is this story published yesterday in the Duluth NewsTribune. The headlines: "[Minn. Gov.] Pawlenty will fight to bring plant to state -- IRON NUGGETS:The governor talks with an industry official about keeping plans to build the facility on track." Some quotes:

ST. PAUL - Gov. Tim Pawlenty said Tuesday that he is satisfied a full-scale iron nugget production plant will be built on the North Shore.

But, like others, the governor voiced disappointment that the technology -- developed in part with $16 million in Minnesota money -- might first go commercial in Indiana.

Still, Pawlenty said he isn't surrendering on his state being first when it comes to commercial iron nugget production. Pawlenty said he will contact Steel Dynamics Inc., the Indiana company planning to build a nugget plant there, to see what he can do.

"We are not going to give up on this Indiana idea and are going to see if there is any room to continue to persuade, cajole, encourage, demand that they build a plant in Minnesota," Pawlenty said.

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to Environmental Issues

Law - Alabama PCB settlement angers plaintiffs

"PCB plaintiffs in Alabama angered by millions paid to lawyers" is the headline to this AP story today in the Atlanta Journal Constitution. Some quotes:

BIRMINGHAM, Ala. -- A $300 million settlement of federal claims over PCB contamination in Anniston will give plaintiffs an average of $7,725 each while paying their attorneys millions apiece � including $29 million to the firm of California celebrity lawyer Johnnie Cochran Jr.

The numbers, revealed in court documents and letters that plaintiffs are receiving this week, have provoked a furor in the east Alabama city, where many people already are seething over decades of pollution. * * *

Many of the people who filed claims are needy and had hoped for large payments. "They're upset by the amount the lawyers got," said Baker, president of Community Against Pollution.

Attorneys involved in the case said about 27 lawyers, working for eight different law firms, would share the $120 million approved for legal fees. That works out to an average payment of more than $4 million for each lawyer.

After the attorneys and other costs are paid, the 18,447 plaintiffs will get an average of $7,725 and as little as $500 each, according to documents from claims administrator Ed Gentle.

Posted by Marcia Oddi on Wednesday, March 24, 2004
Posted to General Law Related

Tuesday, March 23, 2004

Indiana Decisions - A number of Court of Appeals decisions today; several are high visibility

Keith R. Michael, et al. v. City of Bloomington, et al. (3/22/04 IndCtApp) [Eminent Domain]

Eugene King v. Tom Terry (3/22/04 IndCtApp) [Quantum Meruit, Real Estate]

Shahid Iqbal v. State of Indiana (3/22/04 IndCtApp) [Criminal Law & Procedure]

Sam Matshazi v. State of Indiana (3/22/04 IndCtApp) [Criminal Law & Procedure]

Robin Montgomery v. State of Indiana (3/22/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

Montgomery raises eight issues, one of which we find dispositive: whether counsel rendered ineffective assistance. In order to determine whether retrial is permissible, we also examine the sufficiency of the evidence supporting Montgomery�s convictions. Finally, we address whether Montgomery�s convictions for the two arson counts violate principles of double jeopardy. * * * Reversed and remanded.

Westfield Companies v. Ralph Knapp, et al. (3/23/04 IndCtApp) [Insurance]

Bielfeldt et al v. Nims (3/23/04 IndCtApp) [Arbitration]

Arvel Ray Collins v. Tara Lea Collins (3/23/04 IndCtApp) [Family Law]

Maurice K. Smith v. State of Indiana (3/23/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Brook, Senior Judge

Here the Court considers "Whether Indiana Code Section 35-50-2-14 violates Article I, Section 19 of the Indiana Constitution."

We therefore conclude that the right to have a jury determine the facts and the law regarding a defendant�s repeat sexual offender status exists by virtue of Article I, Section 19 of the Indiana Constitution. See footnote Indiana Code Section 35-50-2-14 is unconstitutional on its face and as applied to Smith in this case. Consequently, we vacate Smith�s repeat sexual offender adjudication and sentence enhancement.*

*Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Smith also contends that Indiana Code Section 35-50-2-14 violates the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution because it �forces a judge to determine facts besides just that of repeat offender status when weighing what sentence a person should receive.� Because we have already concluded that the statute violates the Indiana Constitution, we need not resolve that question here. We presume that the legislature will follow applicable federal law should it decide to enact another version of the repeat sexual offender statute.

[Update 3/24/04] This write-up of the ruling was published today in the NWI Times.

In The Matter of K.S.P and J.P. (3/23/04 IndCtApp) [Family Law]
Friedlander, Judge

Monica J. Polchert appeals the denial of her uncontested petition to adopt K.S.P. and J.P., the biological children of her domestic partner, Linda L. Lutz. She presents the following consolidated and restated issue for review: Did the trial court err in denying her petition to adopt the children as a second parent? We reverse and remand.

In the course of the opinion, the Court quotes from a Vermont Supreme Court decision:

When social mores change, governing statutes must be interpreted to allow for those changes in a manner that does not frustrate the purposes behind their enactment. To deny the children of same-sex partners, as a class, the security of a legally recognized relationship with their second parent serves no legitimate state interest. By allowing same-sex adoptions to come within the step-parent exception of � 448, we are furthering the purposes of the statute as was originally intended by allowing the children of such unions the benefits and security of a legal relationship with their de facto second parents.

As the case law from other jurisdictions illustrates, our paramount concern should be with the effect of our laws on the reality of children�s lives. It is not the courts that have engendered the diverse composition of today�s families. It is the advancement of reproductive technologies and society�s recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children�s financial support and emotional well-being by developing theories of parenthood, so that �legal strangers� who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a �parent� who has been with them from birth. It is surely in the best interests of children, and the state, to facilitate adoptions in these circumstances so that legal rights and responsibilities may be determined now and any problems that arise later may be resolved within the recognized framework of domestic relations laws.

We are not called upon to approve or disapprove of the relationship between the appellants. Whether we do or not, the fact remains that Deborah has acted as a parent of [the children] from the moment they were born. To deny legal protection of their relationship, as a matter of law, is inconsistent with the children�s best interests and therefore with the public policy of this state, as expressed in our statutes affecting children.

and concludes: "We fully endorse this rationale."

Our recent decision in Adoption of M.M.G.C. [3/18/03] recognizes some of the many benefits of a second-parent adoption and concludes, �[a]llowing a second parent to share legal responsibility for the financial, spiritual, educational, and emotional well-being of the child in a stable, supportive, and nurturing environment can only be in the best interest of that child.� Adoption of M.M.G.C., 785 N.E.2d at 270-71. Entitlement to these benefits from a second parent cannot rationally hinge on whether the child�s natural parent is a biological or adoptive parent.

We conclude that where, as here, the prospective adoptive parent and the biological parent are both in fact acting as parents, Indiana law does not require a destructive choice between the two parents. Allowing continuation of the rights of both the biological and adoptive parent, where compelled by the best interests of the child, is the only rational result. We, therefore, reverse the trial court�s denial of Polchert�s petition to adopt as a second parent and remand for further proceedings consistent with this opinion.

[Update 3/24/04] This brief note appeared today in the Indianapolis Star.

Stephen Faust v. State of Indiana (3/23/04 IndCtApp) [Criminal Law & Procedure]

Estate of Robert "Bobby" Lee Helms (3/23/04 IndCtApp) [Estates & Trusts]
Friedlander, Judge

Robert �Bobby� Helms (Bobby) was a recording artist most noted for three hit songs that topped the pop and country music charts in the late 1950s. Those songs were Fraulein, My Special Angel, and Jingle Bell Rock. Bobby died in Morgan County, Indiana on June 19, 1997. After his death, the royalties to those songs comprised a significant part of his estate. Several probate actions ensued involving either directly or indirectly the rights to those royalties. This appeal challenges a ruling in one of those actions. Appellants consist of Bobby�s estate (the Estate) and two of his children, Robert Helms II (Robert) and Angel Faith Helms McCartney (Angel). The appellee is another of Bobby�s children, Tyeanne Helms-Hawkins (Tyeanne). The ruling at issue is the granting of Tyeanne�s motion to set aside an Agreed Judgment that purportedly settled a dispute over royalties between the Estate on one side and Robert and Angel on the other. Appellants contend that the trial court erred in setting aside the Agreed Judgment, presenting the following consolidated, restated issues for review: 1. Did Tyeanne have standing to challenge the Agreed Judgment? 2. Did the trial court err in granting Tyeanne�s motion to set aside the Agreed Judgment? We affirm.

Posted by Marcia Oddi on Tuesday, March 23, 2004
Posted to Indiana Decisions

Indiana Decisions - Important Supreme Court ruling on insanity defense

Rita D. Thompson v. State of Indiana (3/23/04 IndSCt) [Criminal Law & Procedure]
Shepard, Chief Justice

Rita Thompson was convicted of residential entry. She admits committing the crime but argues that she presented uncontroverted expert evidence that she was legally insane at the time and therefore should have been found not guilty by reason of insanity. We conclude that, as with other evidence presented by either the State or the defense, a finder of fact is entitled to decide whether to credit the opinions of experts on insanity. Accordingly, we affirm the conviction. * * * We find that based on the evidence presented, the trier of fact could have found that Thompson was mentally ill but able to distinguish right from wrong.

Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs with separate opinion:

* * * There may be a temptation to read into today's opinion -- because we reverse the decision of the Court of Appeals -- a suggestion that Barany has been expanded and that psychiatric testimony is even less weighty than before. I do not believe that to be the Court's intent. It seems to me that the law would require us, even under today's opinion, to set aside a conviction where (1) there was unanimous credible, expert testimony that a defendant was insane at the time of the crime at issue and (2) there was no other evidence of probative value from which a conflicting inference could be drawn. Said differently, there will be insufficient evidence to convict where (1) there is unanimous credible, expert testimony that a defendant is insane at the time of the crime at issue and (2) there is no other evidence of probative value from which a conflicting inference can be drawn. But we find that there was such evidence here.

Posted by Marcia Oddi on Tuesday, March 23, 2004
Posted to Indiana Decisions

Biotech - More on biotech as an economic engine

Updating our Indiana Law Blog entry yesterday (scroll down) on how "many cities and states are scrambling to attract biotech businesses that bring well-paying jobs and lucrative tax revenues" is this story today in USA Today on how "big pharm" is partnering with biotech startups. Some quotes:

SAN FRANCISCO � Merck, the pharmaceutical giant racing to replenish its drug pipeline, hatched a $100 million partnership in November with a tiny biotech start-up in Cambridge, Mass.

Eli Lilly, another drugmaking stalwart, is plunging into the sizzling anti-impotence market ruled by Viagra with help from a young biotech near Seattle. * * * Lilly, for one, has launched about 100 partnerships, mostly with biotechs, many in the last five years.

Posted by Marcia Oddi on Tuesday, March 23, 2004
Posted to Biotech

Law - OSHA Commission to decide whether OSHA regulators should be allowed to "pierce the corporate veil"

A story today in the Washington Post reports:

The three-member Occupational Safety and Health Review Commission, which hears appeals from administrative law judges' decisions, is about to decide whether Occupational Safety and Health Administration (OSHA) regulators should be allowed to "pierce the corporate veil" and go after the individuals running companies to hold them, or successor "alter ego" companies, responsible for fines and other enforcement actions.

"These cases involve issues of apportioning responsibility for abatement and penalties," said Earl R. Ohman, general counsel for the commission. "Piercing the corporate veil is a standard legal doctrine, but it's not common for OSHA to seek this kind of relief." Instead, the board usually settles workplace health and safety disputes between OSHA and employers that stem from federal workplace inspections.

A favorable decision from the three-member board could have an impact on how OSHA imposes fines and their amounts. It would make it possible to go after individuals when companies create complex corporate structures and it would allow OSHA to assess higher "repeat" fines on a company that it considers a successor to a company that might go bankrupt and then resume largely the same business.

Posted by Marcia Oddi on Tuesday, March 23, 2004
Posted to General Law Related

Monday, March 22, 2004

Environment - Indiana's economic development advantage in the manufacturing area

Indiana may win out in a battle over where to locate a new manufacturing plant -- in Minnesota, where the raw materials are, or in Indiana, where the environmental requirements are less stringent.

What is the product to be manufactured? Iron nuggets. The process is described in this story from the Duluth News Tribune:

Mesabi Nugget is a pilot-demonstration plant at Northshore Mining Co. in Silver Bay.

The plant, which uses a proprietary process developed by Kobe Steel of Japan, is designed to turn taconite concentrate into iron nuggets. The nuggets are 96 percent iron and worth about six times more than the $35 per ton that taconite pellets fetch.

An upturn in the global price of pig iron, from $100 per ton two years ago to $300 per ton today, also holds tremendous opportunity for the plant, Mesabi Nugget President Larry Lehtinen told a [Minnesota] House committee on taxes Thursday [Feb. 26th].

This from an AP story in the Miami Herald of 3/3/04 [emphasis added]:

Iron nuggets are a value-added product made from taconite concentrate. It's the first new product made from Iron Range ore since the taconite pellet replaced natural red iron ore decades ago.

While taconite pellets generally sell for about $35 per ton, iron nuggets are now selling for $300 a ton, up from about $100 per ton when the pilot-demonstration plant began operation, Lehtinen said.

The success of the plant has prompted Mesabi Nugget officials to begin conceptual engineering for a 1.5-million-ton-per-year, commercial-size nugget plant at Northshore Mining.

Unlike taconite pellets, which are fed into blast furnaces by integrated steelmakers, iron nuggets can be fed into electric arc furnaces at minimills. Nuggets also can be used in iron making at foundries.

High worldwide demand for iron units and a shortage of high-quality scrap has helped boost the price for high-iron products, including the nuggets. "The demand is incredible," Lehtinen said. "We wish we could start construction right now."

So how does Indiana come into the picture? This AP story, published March 17 in the Miami Herald, and titled "Minnesota Lawmakers Concerned about Indiana Plans to Build Iron Nugget Plant," explains:

Using technology successfully tested at Mesabi Nugget in Silver Bay, Steel Dynamics Inc., a minimill in Butler, Ind., may build the $100 million, 500,000-ton-per-year iron nugget plant. Its board of directors is expected to review the plan in about a month, said Larry Lehtinen, Mesabi Nugget president. * * *

Next month, permits to operate the plants will be sought from officials in both states. It's expected an Indiana plant could be up and running by late 2005 or 2006. In Minnesota, it could take that long to meet regulatory requirements.

To build the proposed $240 million iron nugget plant in Silver Bay, Lehtinen said Mesabi Nugget must complete an environmental impact statement, which Indiana doesn't require.

And there's another issue. Northshore uses natural gas as a fuel source to heat taconite pellets, which serve as feed stock to make iron nuggets. But the rising cost of natural gas has some taconite producers considering coal-gasification to provide a supplemental fuel. To use that technology at Northshore Mining, Minnesota Pollution Control Agency approval is required. * * *

"The delay in Minnesota comes because Minnesota requires an EIS and Indiana does not. That's not something we can change," she said.

With economies booming in countries such as China, and integrated steelmakers facing a shortage of coke for their blast furnaces, demand for iron nuggets is high, Lehtinen said. Potential partners in a commercial iron nugget project can't wait for Minnesota to issue permits. * * *

A 500,000-ton-per-year Indiana plant would consume about 1 million tons of taconite concentrate per year. That concentrate could come from Northshore Mining Co. It would be shipped via railroad through Biwabik, Proctor and Chicago to Butler, Ind. With a $15 million investment in processing and mining equipment at Northshore, the production of additional concentrate for an Indiana nugget plant would create about 50 new jobs.

See also this story from BusinessNorth.com [thanks to Ed Feigenbaum of Indiana Legislative Insight for the link and for the heads-up] that is headlined "Mesabi Nugget's first plant likely in Indiana, not North Shore: Tougher environmental permitting process here could take two years." A quote:

Steel Dynamics Inc. of Fort Wayne, IN, a mini-mill operator and one of four investors in the Mesabi Nugget project, is considering spending $100 million to build a new steel plant in nearby Butler, IN, that would utilize the taconite-derived iron nuggets.

The nuggets are being tested as a much less expensive substitute for the pig iron and steel scrap used by the growing mini-mill sector that�s captured more than half of the domestic U.S. steel market.

Because Indiana�s environmental regulations are weaker than Minnesota�s, a nugget-using steel facility can be erected more quickly there. But Lehtinen said the market for nuggets � assuming the production process passes its third and final test run this spring at Northshore Mining � is big enough to ensure that production plants envisioned for Minnesota will materialize.

�We�re just putting the finishing touches on the Minnesota Environmental Assessment Worksheet, and it should be ready for submission by the end of April,� Lehtinen said. �We�re committed to the permitting for two production units up here (in Silver Bay). It will take 24 months to get through that. So you�re talking about waiting two years for something that will be around for 50 years.�

The difference is the environmental impact statement (EIS) requirement. Indiana's requirements, found at IC 13-12-4, apply only in the case of state action (IC 13-12-4-5) and are not required for the issuance of a license or permit (IC 13-12-4-8). Most often what we hear about in Indiana is the federal NEPA statement, which is required in highway projects, etc. I haven't checked the other "rust-belt" states, but offhand I do know that the State of New York is another state with its own NEPA requirements.

[Update 3/23/04] This story this morning in the Washington Post, headlined "Trapped by Rising Steel Prices: Manufacturers Find They Can't Recover Raw Materials Cost," adds more information on why, as stated in an earlier quote, "a shortage of high-quality scrap has helped boost the price for high-iron products, including the nuggets," and how this impacts our other manufacturers. The Post story today says that "increasingly expensive scrap metal" is resulting in "a surcharge [to be] tacked on by mills that produce the steel." And small manufacturing companies, "[a]lready beset by cheap foreign competition and spiraling health care costs, ... find themselves largely unable to pass on this new expense in a marketplace that demands lower and lower prices for consumer goods." More:

Steel users report prices for flat-rolled and other popular types of steel have more than doubled in the past year, but the average American has yet to see that cost tacked on to the prices of products such as automobiles, lawn tractors or bicycles. Many large makers of consumer goods are forcing the smaller companies that supply them with components to eat that increased cost as a price of doing business. * * *

Many experts blame the hike in steel costs on China, which has sharply increased its use of raw materials as it begins industrializing its economy. In particular, China is absorbing the world's output of scrap metal, an important source of steel. U.S. companies are selling more of their scrap to China, making it harder to get the material domestically and nearly tripling the cost of scrap to about $300 per ton from an average of $110 per ton in 2002, according to Morgan Stanley steel analyst Wayne Atwell.

The run-up in scrap hits at an especially bad time for domestic steel consumers. Other factors were already pushing prices up, such as rising energy costs and a shortage in the supply of coke, a coal product used to fuel furnaces that produce steel. To make matters worse, the industry had been expecting steel prices to fall or at least stabilize after President Bush lifted tariffs on imported steel in December.

Posted by Marcia Oddi on Monday, March 22, 2004
Posted to Environmental Issues

Indiana Decisions - 7th Circuit rules on Carmel cell-phone dispute

Sprint v. City of Carmel (3/22/04 USCA 7th Cir.)
Evans, Circuit Judge

One section of the historical Telecommunications Act of 1996 gives cellular telephone service providers the right to challenge local zoning decisions in federal court. 47 U.S.C. � 332(c)(7)(B)(v). While on its face a simple notion, �this statute fairly bristles with potential issues . . . .� Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2nd Cir. 1999). Our case today concerns one of those issues�when is a land use decision a �final action� in order to create federal subject matter
jurisdiction. Specifically, we must examine whether the Act modifies the traditional analysis, enunciated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), for determining when a complaint challenging a local land use decision is ripe for federal adjudication.

This case is an appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, John Daniel Tinder, Judge. The judgment of the District Court is affirmed here.

Two other 7th Circuit rulings in Indiana cases today, in each of which the ruling of the district court is affirmed:

USA v. Sensmeier (3/22/04 USCA 7th Circuit)

USA v. Merritt (3/22/04 USCA 7th Circuit)

Posted by Marcia Oddi on Monday, March 22, 2004
Posted to Indiana Decisions

Biotech - As an economic engine

Updating our entry of March 7th, that contained stories of how "many cities and states are scrambling to attract biotech businesses that bring well-paying jobs and lucrative tax revenues" are these two stories:

First, a report from the San Francisco Business Times headlined "Biotech companies go on hiring binge: Genentech, Abgenix lead rush as drugs flow through pipeline."

One question overhanging the industry: Where will it find the workers with the skills it needs for the openings it has? Rich Kneece, CEO of Massachusetts Technology Corp., which operates HireBio.com, said the shift in demand to manufacturing will create a challenge for the industry.

"That is a big difference from the past couple of years," he said. "The biggest struggle is the production and manufacturing folks. It's a big question mark."

Kneece thinks one place biotechnology companies might find the employees they need is in breweries, where he said workers need similar skills. That might make the Bay Area's rich collection of microbreweries fertile ground for biotech recruiters -- but then again maybe not.

Abgenix's Withy laughs at the suggestion. "The similarities end with the stainless steel tanks," he said. "Thereafter, it's an entirely different proposition."

Then, this story from the Miami Herald, headlined "Spin-Offs from Biotech Center in Florida Likely to Help Area Economy," that covers a lot of territory, including "the Bayh-Dole Act, enacted in 1980," and our own Eli Lilly & Co.

Posted by Marcia Oddi on Monday, March 22, 2004
Posted to Biotech

Indiana Law - Brown County man faces grave charges

A brief AP story just appeared on the IndyStar.com website, reporting that "A man faces a trial on charges that he moved grave markers at a historic cemetery to make room for a septic system for his home in Brown County." More:

Daniel B. Scalpelli, 48, * * * faces a felony charge of disturbing a cemetery without a permit and misdemeanor charges of cemetery mischief and moving a grave memorial without a recording. His bench trial, before Brown Circuit Judge Judith Stewart, is scheduled to begin Wednesday.

Posted by Marcia Oddi on Monday, March 22, 2004
Posted to Indiana Law

Law - Two interesting LA Times articles on high profile cases

"Judges Dim the Media Spotlight: Seeking to keep high-profile trials under control, jurists often restrict access to data. But the strategy leaves the public in the dark," is the headline to this lengthy feature today in the LA Times. Some quotes:

Secrecy has become common in A-list court proceedings. When a headliner lands in the dock, the government is increasingly restricting access to legal documents and hearings and imposing gag orders to silence lawyers and investigators.

Open courts and public scrutiny of the justice system are cornerstones of American democracy. But judges say the hush-hush measures are sometimes necessary to prevent news coverage from influencing the jury and thus damaging the prospects of a fair trial.

"It's a balancing," said David Horwitz, a recently retired judge who helped set access rules for the Los Angeles Superior Court during his 22 years on the bench. "Some judges believe that by issuing gag orders, by sealing documents, you preserve the information for the courtroom and the trial." Prosecutors and defense lawyers often agree.

Yesdaerday, the LA Times had a story about high-profile rape cases, headlined "Law No Shield in Rape Trials: Two high-profile cases, one in Orange County, show that accusers' history still fair game." Some quotes:

"If you boil it down, the victim's prior sexual conduct is supposed to be irrelevant on anything other than credibility," [Laurie Levenson, a former federal prosecutor and a Loyola Law School professor] said. "You can't use the sexual evidence just to say she has a propensity to have sex. But the way things are now, just raising the issues can put that information out there." * * *

Prosecutors and some legal experts typically argue that an accuser's sexual past is not relevant to whether she was raped, and that it should not be allowed to be a topic at trial.

Legal experts suggested that publicizing defense motions that purport to detail an accuser's sexual history could also intimidate alleged victims � the reason such rape-shield laws were enacted in the first place.

That likelihood of witness coercion increases, they said, when a case commands media attention on the level of the Bryant or � to a much lesser degree � the Haidl case.

"It has a chilling effect on victims, knowing that their history might get paraded before a nation or at least before a county," said Andrea Freshwater, who heads the sex crimes and stalking unit for the San Diego district attorney. "I agree information should come out on both sides, but it's got to have some relevance."

It's contrary to the spirit of rape-shield laws, she said, to detail an accuser's alleged sexual past when a judge hasn't ruled if it's germane to the case. "How can you unring the bell?"

Posted by Marcia Oddi on Monday, March 22, 2004
Posted to General Law Related

Sunday, March 21, 2004

Indiana Law - Methamphetamine rampant in Indiana rural counties; Columbus attorney charged in alleged meth operation

This powerful front-page story in today's Indianapolis Star describes how methamphetamine is tearing apart families in rural southern Indiana counties.

In 1993, State Police uncovered three meth labs in Indiana. Last year, they found 1,260 labs -- more than a third of them in six southwestern counties, including Sullivan. That number is expected to rise again this year as the drug continues its march across the state. Last year, meth labs were found in all but 10 of the state's 92 counties.

The story centers on Sullivan County:

[I]t's hurting Sullivan County's children at an alarming rate. Last year, this county in southwestern Indiana had a rate of child abuse and neglect cases nearly double that of the state average. For every 1,000 people, 22.4 cases were reported.

The rate is one of the highest in the state. Child welfare officials blame methamphetamine, a highly addictive drug that has been sweeping across Indiana for the past decade.

"The parents are choosing the drug over the child," said James Bedwell, director of the Sullivan County Office of Family and Children.

Early this month the Star and a number of other papers, including the Louisville Courier-Journal ran an AP story about a Columbus, Indiana attorney charged with 28 felony counts of insurance fraud:

Karon Perkins, 44, fraudulently said she worked for a company she did business with so she could submit insurance claims to its health-insurance provider, court documents said. Columbus police have issued a warrant for her arrest.

The charges, filed in a Bartholomew County court Tuesday, are Class D felonies, each punishable by six months to three years in prison and a fine of up to $10,000.

Perkins, an attorney for 20 years, is a public defender in Indianapolis and a lawyer in private practice in Columbus.

WTHR.com Indianapolis ran this story March 5th that begins:

March 5, 2004 - Columbus, IN - An Indianapolis public defender needs a lawyer herself after police in Columbus arrest Karon Perkins for insurance fraud and could possibly face other charges as well. Karon Perkins has seen plenty of mug shots in her 20-plus years as a Columbus attorney and now she has her own. Karon Perkins was charged this week with 28 felony counts of insurance fraud. Perkins also served as a Marion County public defender, but resigned this week after her arrest. According to court papers, Perkins allegedly forged documents to obtain health insurance coverage for her and her daughter. The documents also detail other possible crimes at Perkins' Columbus law office. Bartholomew County Prosecutor, Bill Nash said, "It is related to an investigation of possible record violations, involving using the proceeds of the manufacturing of methamphetamine to basi

The Indiana Law Blog

Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).

Wednesday, March 31, 2004

Environment - US EPA Bad Marks Hit Home

Indiana Decisions - Impact of Supreme Court's decision not to review landfill case

Indiana Decisions - Two Supreme Court rulings posted today

Indiana Law - Today's 7th Circuit Rulings

Environment - US EPA gets bad marks in two reports

Tuesday, March 30, 2004

Indiana Decisions - Oral argument scheduled for issues relating to release of counseling records of accused murderer

Indiana Law - Columbus attorney may have license suspended

Indiana Decisions - Four new Court of Appeals decisions posted today

Indiana Decisions - Today's 7th Circuit Rulings

Law - Lawyers' new means to track down clients

Indiana Economic Development - Indiana iron nuggets plant may be slipping away

Indiana Decisions - Court of Appeals to hear another chewing tobacco/breathalyzer case

Environment - Indiana Wetlands Reserve Program participation

Law - Alien Tort Claims Act

Indiana Economic Development - NPR report features Indiana economy

Monday, March 29, 2004

Indiana Decisions - 7th Circuit issues two decisions today

Indiana Law - Another Tale of Reassessment Woes

Indiana Decisions - Supreme Court accepts certified questions from federal district court

Law - "Got beef?"

Indiana economic development - Outsourcing in historical perspective

Indiana Law - More on the Lake County suit involving Arthur Andersen LLP

Sunday, March 28, 2004

Indiana law - Access to county voter data restricted

Indiana economic development - More on Indiana's advantages in the manufacturing arena

Law - Voting Rights of Felons

Friday, March 26, 2004

Indiana Decisions - 7th Circuit rules on late term abortion subpoenas by feds

Indiana Decisions - Two new Court of Appeals rulings posted; one older ruling from Tax Court

Indiana Decisions - Two Important Rulings Today by 7th Circuit

Indiana Decisions - Press Reports of Yesterday's Appeals Court Decision

Indiana Decisions - Transfer list for week ending March 26, 2004

Indiana Decisions - New Supreme Court Orders of Final Resolution in Attorney Disciplinary Cases Posted

Thursday, March 25, 2004

Indiana Decisions - Several interesting 7th Circuit decisions today

Indiana Law - Kokomo attorney faces misdemeanor child pornography charges

Indiana Law - Update on Attorney Changed in Meth Operation

Indiana Decisions - Three Posted by Court of Appeals

Wednesday, March 24, 2004

Environment - Several Indiana stories today

Indiana Decisions - New postings today from Supreme Court and Court of Appeals

Kudos for the Indiana Law Blog

Environment - China's ineffective environmental controls lead to massive pollution damage

Indiana Decisions - Valpo attorney faces possible suspension

Environment - Supreme Court rules on Everglades CWA case

Environment - More on the Iron Nugget Plant

Law - Alabama PCB settlement angers plaintiffs

Tuesday, March 23, 2004

Indiana Decisions - A number of Court of Appeals decisions today; several are high visibility

Indiana Decisions - Important Supreme Court ruling on insanity defense

Biotech - More on biotech as an economic engine

Law - OSHA Commission to decide whether OSHA regulators should be allowed to "pierce the corporate veil"

Monday, March 22, 2004

Environment - Indiana's economic development advantage in the manufacturing area

Indiana Decisions - 7th Circuit rules on Carmel cell-phone dispute

Biotech - As an economic engine

Indiana Law - Brown County man faces grave charges

Law - Two interesting LA Times articles on high profile cases

Sunday, March 21, 2004

Indiana Law - Methamphetamine rampant in Indiana rural counties; Columbus attorney charged in alleged meth operation