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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 Chicagos 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 reports data, which spanned an 18-month period from Jan. 1, 2002, to June 30, 2003, said East Chicagos 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. Steels 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 reports findings. Its a very oversimplified report, you can read a lot into it, Method said. Method said Indiana follows the U.S. Environmental Protection Agencys 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 companys 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 states highest court to reverse the court of appeals July 10, 2003, ruling that local communities have the authority over the state in deciding if theres a need for a landfill.

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

More from the story:
Judge Steven King ruled in October 2002 that the state and not the county had the authority to make the landfill decision. He ruled that a section of the LaPorte County Master Plan was invalid and the county had overstepped its bounds.

Less than a year later, the court of appeals reversed Kings decision.

The master plan states that to obtain a special exception to build a landfill from the LaPorte County of Board of Zoning Appeals (BZA), the developer must first gain approval from the county solid waste district showing there's a need for one.

The court of appeals agreed that the county has the authority to adopt zoning ordinances because it regulates the use of land.

Additionally, it ruled that while approval for a landfill must still be obtained at the state level, the first OK to determine a need must come from the local level, the solid-waste district.

Access the July 13, 2003 Indiana Law Blog entry on the Court of Appeals opinion, titled "Indiana Decisions - Local zoning authority over solid waste landfills," plus a link to the Court of Appeal's decision, here.

[Update 4/1/04] This story appears today in the South Bend Tribune.

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

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 Indianas 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 dpeage 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). * * *

Dpeage 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. Dpeage has not been part of Indianas 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 Guys 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 debtors financial condition. But does 523(a)(6) allow for debts procured by
oral misrepresentations of the debtors 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 appellants arguments are utterly meritless and have no conceivable chance of success. Berksons 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 courts 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 Krulls 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 Krulls 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 courts decision to grant Krulls Motion for Summary Judgment, affirm the trial courts 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 razors 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 institutions limited resources. A part of the Courts 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 Courts 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 clientswithin hours of their legal entanglementswith 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:

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


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, bargainingand either an agreement or an impassemust precede any change in terms and conditions under which the operating engineers are employed. To the extent that the EJABs 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 Andersens 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 OBannon.

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."


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]

Meridian Towers East & West, a Limited Liability Company (Meridian), appeals the Indiana Board of Tax Reviews (Indiana Board) final determination valuing its real property for the 1998 tax year. The issue is whether Meridians improvements should have been awarded a 74% obsolescence depreciation adjustment. For the following reasons, the Court REVERSES the Indiana Boards 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 Wallaces 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 Wallaces 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 courts 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, Osbornes 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 Osbornes Fourth Amendment argument. The order of the trial court is reversed. We remand to the trial court with instructions to grant Osbornes 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 Montgomerys convictions. Finally, we address whether Montgomerys 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 defendants 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 Smiths 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 childrens lives. It is not the courts that have engendered the diverse composition of todays families. It is the advancement of reproductive technologies and societys 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 childrens 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 childrens 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 childs 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 courts denial of Polcherts 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 Bobbys estate (the Estate) and two of his children, Robert Helms II (Robert) and Angel Faith Helms McCartney (Angel). The appellee is another of Bobbys children, Tyeanne Helms-Hawkins (Tyeanne). The ruling at issue is the granting of Tyeannes 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 Tyeannes 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 thats captured more than half of the domestic U.S. steel market.

Because Indianas environmental regulations are weaker than Minnesotas, 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.

Were 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. Were committed to the permitting for two production units up here (in Silver Bay). It will take 24 months to get through that. So youre 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 issueswhen 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 basically fund the operations of the law firm."
Today the Munster NWI Times carried this AP story, headlined "Columbus attorney charged in alleged office meth operation." Some quotes:
COLUMBUS (AP) -- An attorney charged with insurance fraud faces new charges alleging she helped turn her law office into a front for a methamphetamine dealing operation.

Karon Perkins, 44, has been jailed since her March 2 arrest on 28 counts of insurance fraud. Prosecutors alleged in court documents that Perkins had been aware of meth activity among some of her staff and bought supplies to help them make the drug.

On Friday, Bartholomew County Prosecutor Bill Nash filed additional felony charges of aiding the dealing of methamphetamine and conspiracy.

Posted by Marcia Oddi on Sunday, March 21, 2004
Posted to Indiana Law

Not law but interesting - the reverse of rural electrification

This feature today in the LA Times is headed: "Lights Going Out on the High Plains as Population Shrinks - North Dakota has lost more than half its farms since the 1940s, when electricity came to rural areas. Now, idle power lines pose fire dangers." Here is how it starts:

ROBINSON, N.D. John Randall will never forget the day more than 50 years ago when electric power came to the countryside. "It was really something to see when all these farms got lit up," Randall recalled.

Randall, 76, has been farming all his life in Robinson, a central North Dakota town of about 70 people just as his father and grandfather did. In 1949, he became the first in the family to farm with electricity. And he may be one of the few left in the area.

"There aren't too many farms around here to light up anymore," Randall said. "It's gone from dark to light to dark."

Thousands of miles of power lines that once brought the promise of better lives to farmers now lead to abandoned farmsteads that have fallen victim to a harsh rural economy.

About 20% of the state's 60,000 miles of rural power lines are eligible to be "retired" because they are not being used, said Dennis Hill, general manager of the North Dakota Assn. of Rural Electric Cooperatives.

Posted by Marcia Oddi on Sunday, March 21, 2004
Posted to General News

Indiana Law - Election law reform in Indiana

"One small step toward honest elections" is the headline of this editorial in today's Munster NW Indiana Times. The editorial praises "an election reform package championed by state Sen. Sue Landske, R-Cedar Lake." The bill referred to is a 118-page measure, SEA 72, available here. The digest of the bill is available here. Some quotes from the Times' editorial:

Potential voters now will have to show proof of residency if their names are on an inactive voter list; county voter registration offices will be required to keep their voter registration list up to date; and an absentee ballot signature must be compared with the person's voter registration signature.

The law addresses some of the concerns the Lake County Election Board's Subcommittee on Public Integrity was forced to deal with as a result of the absentee ballot scandals that led to trials over the fraudulent use of absentee ballots in East Chicago and Schererville.

Unfortunately, the new law does not go far enough, although not for trying on Landske's part.

One important provision of Landske's bill was left on the cutting room floor of an unenlightened General Assembly. It would have required that voters show a photo ID at the polls. But opponents worried it would be an invasion of privacy.

That is ridiculous. People cannot apply for a check-cashing card at the supermarket or get on a plane without having to show a photo ID.

That should be the next step in the ongoing effort to ensure honest elections, especially in Lake County, where cheating at the polls is a legacy handed down from generation to generation.

Requiring a photo ID should not create a hardship on honest voters, those who understand that voting is a privilege and not a right to dishonestly affect an election.

It would be interesting to know whether other states require that voters show a photo ID at the polls. I know that until recently I had to show one, plus sign-in, in order to get to my dentist's office in a downtown high-rise office building.

[Update] In response to my inquiry, Edward Still of VoteLaw reports:

The [existence of the] federal Help America Vote Act is pushing states to adopt picture ID laws because it has a requirement for picture IDs in certain, limited situations. Many states are going ahead and adopting an "everyone shows ID" policy.
[Update 3/22/04] This morning I was required to show my "photo ID" in order to make a charge purchase at Borders.

Posted by Marcia Oddi on Sunday, March 21, 2004
Posted to Indiana Law

Saturday, March 20, 2004

Environment - North Carolina AG Pressures EPA on Out-of-State Air Pollution

An AP story yesterday published in the Indianapolis Star reported:

CHARLOTTE, N.C. -- Attorney General Roy Cooper asked the federal Environmental Protection Agency on Thursday to force power plants in Indiana and 12 other states to cut down on air pollution he said is harming air quality in North Carolina.

An official with the Indiana Department of Environmental Management said Indiana already is making progress in reducing air pollution, and the move by North Carolina was "not particularly helpful" to regional efforts.

"This is a regional situation and we need a regional solution," said Janet McCabe, IDEM's assistant commissioner for air quality.

Besides Indiana, the coal-fired plants named in Cooper's petitions are located in Alabama, Georgia, Illinois, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia.

A second Star story today, this time via Knight Ridder, reports:
CHARLOTTE, N.C. -- Dropping its attempts at persuasion, North Carolina petitioned the Environmental Protection Agency on Thursday to force reductions in power-plant pollution from South Carolina and 12 other states, including Indiana.

Pollutants blowing in from those coal-burning states dirty North Carolina air, the petition says, and sap the effectiveness of legislators' crackdown on power plants in 2002. While that legislation became a national model, other states didn't follow suit.

With Thursday's filing, Attorney General Roy Cooper followed the act's directive to "use all available resources and means" to make other states do the same. * * *

It was only the second time since 1990 that such a petition has been filed with the EPA -- North Carolina was a target of the first one. Amid this year's elections, the tactic is not likely to win friends for North Carolina.

"This is an election-year stunt," said Trey Walker, a spokesman for South Carolina Attorney General Henry McMaster. "It seems like a fight is what they want, and a fight they shall have."

The petition, if granted, would force pollution cutbacks that could chill South Carolina economic development, Walker said.

The Munster Times had this story Friday.

A check of the North Carolina Attorney General's web site provides links (via "news") to the a number of press releases on this matter.

Posted by Marcia Oddi on Saturday, March 20, 2004
Posted to Environmental Issues

Friday, March 19, 2004

Indiana Decisions - 7th Circuit Rules in Clean Water Act 404 / Takings Case

Greenfield Mills v. Larry Macklin, Director of Indiana DNR (3/19/04 USCA 7th Cir.)

This 51-page opinion is an appeal from the ND Ind.

RIPPLE, Circuit Judge. After employees of the Indiana Department of Natural Resources (DNR) drained a supply pond into the Fawn River, the plaintiffs, riparian landowners, brought this action against DNR employees, David Clary, Tom Meyer, Neil Ledet and Gary Armstrong, in their individual capacities, and against the Director of the DNR in his official capacity. The plaintiffs alleged that these defendants had violated the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., and also had violated their rights under the Takings and Due Process Clauses of the Constitution of the United States. The parties filed cross-motions for summary judgment. The district court granted the defendants motion for summary judgment on all claims. For the reasons set forth in the following opinion, we reverse the judgment of the district court with respect to the CWA claim and remand for further proceedings. With respect to the takings and due process claims, we affirm the judgment of the district court.

Posted by Marcia Oddi on Friday, March 19, 2004
Posted to Indiana Decisions

Indiana Law - Dispute Continues Over Paying for Lake County's Tax Reassessment

Here is the headline from this story in today's Munster Times: "Lake County, Andersen headed to court: Judge rescinds stay on lawsuit; millions of taxpayer dollars at stake." Some quotes:

Lake County and the state of Indiana could be ordered Monday to pay Arthur Andersen LLP as much as $10.5 million for work government officials said the defunct accounting firm never did.

Although a Marion County judge recently halted Andersen's civil lawsuit seeking payment on its canceled contract for the 2002 reassessment, Judge Gerald Zore lifted the stay order Thursday and attorneys are now preparing for court. * * *

For months, attorney Gerald Bishop and other county lawyers, Indiana tax officials and Andersen have been trying to reach a deal over the millions in claims and late fees Andersen said it is owed.

Although former state Finance Commissioner Jon Laramore signed off on $9 million in invoices two years ago, the state and the county said the company didn't do much work and is not owed the money.

At a court-ordered mediation in February, the state and Lake County put up $750,000 each to settle the lawsuit, but Andersen's attorneys rejected the offer.

On Monday, the judge will hear the accounting firm's motion for summary judgment. "Andersen is saying ostensibly, 'We want this money, and it doesn't matter what we did. The claims were signed,'" Bishop said.

Today's story updates a March 9, 2004 Munster Times story reported on in this earlier ILB entry.

Posted by Marcia Oddi on Friday, March 19, 2004
Posted to Indiana Law

Indiana Decisions - Transfer list for week ending March 19, 2004

Here is the Indiana Supreme Court's transfer list for the week ending March 19, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, March 19, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - Several decisions posted today

Wayne A. Peters and Helen Peters v. Donald Forster (3/11/04 IndSCt) [Torts]
Rucker, Justice

The Supreme Court has reposted this opinion abandoning the "acceptance rule" that we originally covered on March 11th. I'm told by the Clerk's Office that this means there was a correction to the opinion and the corrected version has been posted on the internet in place of the original version - the link remains the same.

Gist v. State (3/19/04 IndCtApp) [Criminal Law & Procedure]

Cherryl Stewart v. Randolph County Office of Family & Children (3/19/04 IndCtApp) [Family Law]

Posted by Marcia Oddi on Friday, March 19, 2004
Posted to Indiana Decisions

Indiana Law - Governor Kernan Signs PERF Confidentiality Bill into Law

Last evening Governor Kernan announced that he had signed into law HEA 1285. As a result, the law is now in effect, retroactive to September 1, 2003. This new law will prevent anyone from accessing PERF information, other than member names and years of service, through a FOIA request.

The Indianapolis Star has good coverage of the Governor's actions today in this story, titled "Governor approves pension secrecy." Here from the story are some quotes from Ember Werts Sr., 70, of McCordsville:

Werts, who retired early from Eli Lilly and Co. in 1986, said lawmakers should pass a bill next year that gives Hoosiers access to enough information to track how public money is spent on pensions. "They're working for us -- or at least I thought so," he said.

The retired graphic designer believes Social Security numbers, addresses, investment choices and beneficiary information probably should remain private. But Werts said the public should be entitled to amounts of pension benefits employees accrue while they're still working, their dates of employment, which government agencies they worked for, and the cities and states they now live in.

Lawmakers' records should be even more open to scrutiny, Werts said, because taxpayers contribute $4 to their pensions for every $1 lawmakers put in. Nearly 200 current and retired lawmakers participate in the legislators' retirement system, which has assets totaling $11 million. Legislators also participate in the state's deferred compensation plan, a retirement option in which the state matches up to $390 per year. Taxpayers have kicked $173,250 into that plan since 2000.

"That's a lot of money," Werts said. "I'd like to know how much they're getting."

The Star also carries the "Statement of the Governor on HEA 1285," which does not appear to yet be available on the State's website. Access it here. The statement concludes:
While personal information must remain confidential, I believe that Indiana law should make more pension information public. The public is entitled not only to the names and dates of service of PERF members, which is available under current law, but also to the amounts being paid to PERF members. Just as salary information for current employees is a public record, pension payment amounts also should be public records. I will work with the 2005 General Assembly to exempt PERF payment amounts from confidentiality restrictions.
Here is the coverage form the Munster NWI Times this morning.

[More] Here is the link to the Governor's official statement.

[Update 3/20/04] Today's Indianapolis Star has this lead editorial that begins:

Gov. Joe Kernan's pledge to seek legislation lessening the secrecy of public employee pension funds gives small consolation to taxpayers in light of the General Assembly's record regarding access to government records.

If Kernan wins the November election, he'll confront a legislature that sealed most pension records in 2001 and quietly passed legislation this session that closes off the rest. When he signed the latter bill into law Thursday, Kernan proclaimed that all employees should be treated equally but neglected to mention, among other details, that the measure serves the most equal employees of all.

Legislators, who receive four tax dollars for every dollar they contribute, are the biggest beneficiaries of the newly secret funds, which also enroll judges and prosecutors. It hardly seems a coincidence that the law denying access was passed retroactive to requests by news organizations to view the records. Media investigations in other states have turned up millions in misappropriated public employee pension funds.

Posted by Marcia Oddi on Friday, March 19, 2004
Posted to Indiana Law

Thursday, March 18, 2004

Indiana Law - Changes to Curfew Law Now Effective

Earlier this year, in Hodkins v. Peterson, Mayor of Indianapolis (1/22/04 USCA 7th Cir.) the 7th Circuit ruled, in the words of the Indianapolis Star, that "that Indiana's curfew law was unconstitutional because it could dissuade children from exercising their First Amendment rights for fear of being arrested." (see earlier Indiana Law Blog entries here and here.)

On March 17th, Governor Kernan signed HEA 1449, which provides that:

A law enforcement officer may not detain a child or take a child into custody based on a violation of this section unless the law enforcement officer, after making a reasonable determination and considering the facts and surrounding circumstances, reasonably believes that:
(1) the child has violated this section; and
(2) there is no legal defense to the violation.
The change takes effect immediately.

This story today in the Chicago Tribune is a reminder that the 7th Circuit ruling affected not only Indianapolis and the entire State of Indiana, but also called into question laws and ordinances in the other states which are part of the 7th Circuit. The lead:

After a hiatus of several weeks caused by a successful court challenge to curfews elsewhere, Chicago this weekend will resume enforcing curfews for people 16 years old and younger, city officials announced today.

Enforcement begins Saturday night and follows City Council action last week to revise city ordinances after a federal appellate court ruling that struck down an Indiana curfew law. * * *

Chicago police stopped enforcing curfew Feb. 12 after the U.S. 7th Circuit Court of Appeals, which includes Illinois, struck down an Indiana curfew law on Jan. 22, saying it violated the 1st Amendment rights of juveniles.

The decision came in a case in which a 15-year-old boy was arrested outside an Indianapolis restaurant after 11 p.m. Before being released to his parents 2 hours later, he was given a breath test, was required to submit to a urine sample and was asked personal questions about his family.

In its ruling, the court said Indiana's law violated minors' constitutional rights because it left them vulnerable to arrest and also interfered with parents' rights to raise their children as they see fit.

Posted by Marcia Oddi on Thursday, March 18, 2004
Posted to Indiana Law

Environment - DNR Blocks Development in Hamilton County Floodway

This story posted this afternoon on the IndyStar.com website begins:

A plan to fill 15 acres of White River floodway for commercial development and build a 10-acre diversion channel as a substitute is now dead in the water.

State officials said the proposed land reconstruction at 96th Street and Allisonville Road was denied after Centre Properties failed to show it would contain flooding and not endanger property there and upstream.

"I imagine that there's going to be some very relieved people living at 116th Street," said Hamilton County Surveyor Kenton Ward, technical advisor to the county's drainage board and an opponent of the Centre Properties proposal.

Posted by Marcia Oddi on Thursday, March 18, 2004
Posted to Environmental Issues

Indiana Decisions - Court of Appeals Posts Five Decisions

Daniel J. Wood v. State of Indiana (3/18/04 IndCtApp) [Criminal Law & Procedure]

F. Brown v. M. Jones (3/18/04 IndCtApp) [Civil Procedure]

City of Carmel v. Leeper Electric (3/18/04 IndCtApp) [Real Estate; Eminent Domain]

Based on the evidence presented, the value of the subject property, on the date of the taking was no less than $1,120,000. The appraisers used the market data approach or value indicated by recent sales of comparable properties. This is one of the widely accepted methods for determining the fair market value of property. The method of determining the value of the subject property suggested by the City of Carmel is not a recognized method of valuation. The jurys award of $675,000 was not within the bounds of the evidence. As a result, we conclude that the trial court did not abuse its discretion by granting Leeper Electrics Motion to Correct Errors and by awarding damages in the amount of $1,120,000 pursuant to T.R. 59(J)(5). Affirmed.
In Re The Matter of the Estate of Michael Long, Deceased, Roger Long, Personal Representative (3/18/04 IndCtApp) [Estates & Trusts]
Robb, Judge

Roger Long, personal representative of the estate of Michael Long, and Shelly King Long, ex-wife of Michael Long (collectively referred to as the Petitioners), appeal the trial courts order on their Petition to Determine Heirship and denial of their request for DNA testing. We reverse and remand.

Issue. Petitioners raise the following issue for our review: whether the trial court properly denied their request for DNA testing and determined Q.L. to be an heir to Michaels estate without considering any of their proffered evidence. * * *

The trial court did not allow the Petitioners to introduce any evidence to rebut the statutory presumption of paternity in Michael, relying instead solely on the stipulations of the parties that Tammy and Michael were married when Q.L. was conceived and that he was born within 300 days of Michaels death. We hold that the trial court misinterpreted the law in so doing. The trial court should allow the opportunity to rebut Michaels presumptive paternity of Q.L.

Conclusion. The trial court misinterpreted the law in denying the Petitioners the opportunity to rebut Michaels presumptive paternity of Q.L., an after-born child. We therefore reverse the trial courts order and remand for further proceedings consistent with this opinion.

Kosciusko County Area Plan Commission v. 1st Source Bank (3/18/04 IndCtApp) [Real Estate; Planning & Zoning]
Robb, Judge
The Kosciusko County Area Plan Commission (APC) appeals from the trial courts reversal of the APCs decision to deny preliminary subdivision plat approval to 1st Source Bank. We reverse and remand. * * *

In reversing the decision of the APC, the trial court found that Section 503 was invalid because it did not provide concrete standards and thus failed to provide due process. Having found that all of the other requirements under the Kosciusko County Subdivision Control Ordinance were met, the trial court ordered that the APC approve 1st Sources proposed subdivision plat. The APC contends the trial court erred in finding that Section 503 was invalid. We agree. * * *

We note at the outset that 1st Source failed to file an appellees brief. Therefore, we adhere to a less stringent standard of review, and the APC need only demonstrate prima facie error to obtain a reversal. * * *

Section 503 lists several things that the APC considers when deciding to approve or deny a plat application. This list includes the following: (1) whether streets are of sufficient width and proper grade; (2) whether streets are so located as to accommodate the probable volume of traffic thereon; (3) whether streets provide access of fire fighting equipment to buildings; and (4) whether streets conform to the County Transportation Plan, which also includes a list of objectives. This list is sufficiently precise to give fair warning to the public as to what the plan commission would consider in approving or denying a plat application. Therefore, Section 503 is valid and the APC was justified in relying upon it to deny 1st Sources petition for plat approval.

Conclusion. Because we hold Section 503 is valid, we reverse the trial courts decision and remand to the trial court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, March 18, 2004
Posted to Indiana Decisions

Not law but interesting - Confessions of a C-SPAN Junkie

This entertaining feature article today from the Washington Post is titled "Confessions of a C-SPAN Junkie ." A quote:

In our house, C-SPAN is a family affair. I began to suspect that C-SPAN radio was playing a little too often in our car when I was out with my 8-year-old daughter listening to -- what else -- the Florida Democratic Party winter meeting, and I realized that she could identify all the presidential candidates. By voice. The year before, she became so captivated by the Senate Judiciary Committee debate on the Charles Pickering nomination that she woke up the next morning demanding to know how the vote had gone on "that judge guy." Dweebiest part? I was on sabbatical -- and watching the Pickering debate for fun.

Posted by Marcia Oddi on Thursday, March 18, 2004
Posted to General News

Indiana Law - More on HEA 1285, the PERF Bill

Today is the final day Governor Kernan has to act on HEA 1285 (the bill that would make all PERF information confidential except for member name and years of service). He may sign it, he may veto it, or he may allow it to become law without his signature.

The Fort Wayne Journal Gazette has an editorial this morning that concludes:

This is not the way public policy should be made. If there are privacy issues related to PERF information, they must be openly debated through the legislative process, not the back-door means of a second-reading amendment. Kernan should reserve his first veto as governor for this bill. Funds with $10 billion in public assets must not be veiled in secrecy.
Ruth Holladay's column in the Indianapolis Star today concludes:
HEA 1285 is a crummy bill that was rushed through and will make bad law. If Kernan vetoes it, he deserves applause for doing the right thing. He can still tell legislators to come back next year with a smarter bill.
This set me to thinking - what might be an answer here? Recall this information from the front-page Star story of March 15th:
The individual pension records of more than 200,000 public employees are already confidential. That law was passed in 2001. At issue are the approximately 11,800 members of five smaller funds, which cover prosecutors, judges, legislators and some law enforcement officers.
So signing HEA 1285 would simply compound a situation created by the 2001 legislation. Vetoing HEA 1285 would be the start to a solution, and would directly address the most egregious provision of HEA 1285 -- the language that makes it retroactive to Sept. 1, 2003, cutting the legs out from under two pending media requests for information that was then, and is today, public, but that has been withheld by PERF, apparently awaiting final action on HEA 1285.

The next step would be a public review of how to balance the public's right to know how its government (in this case, PERF) is operating, against the need to maintain the security of certain information such as social security numbers, and perhaps addresses and dates of birth. (The Indiana Supreme Court's Indiana Task Force on Access to Court Records has just accomplished a similar review. The results may be found here, in the revisions to Indiana Administrative Rule 9.)

The final step would be to draft and enact a measure that would apply to all PERF records, would start with the presumption of open public access inherent in the Indiana Public Records Law, and would impose only those limitations determined to be absolutely necessary. (Perhaps this measure also would discourage agency foot-dragging in fulfilling public records' requests.)

Posted by Marcia Oddi on Thursday, March 18, 2004
Posted to Indiana Law

Wednesday, March 17, 2004

Law - Lawyer and his shingle hang out in a booth

I love this story today from the Louisville Courier-Journal. Here is how it starts:

SIMPSONVILLE, Ky. George R. Carter is not your grandfather's lawyer.

Not unless your grandfather's attorney had a weekend office at the giant, indoor Shelby County Flea Market, in a small booth wedged between some guitars, clarinets, costume jewelry and Avon cosmetics and directly across the aisle from a dealer in old coins, artifacts, guns, knives and memorabilia.

Carter's shingle at the flea market is a white cardboard sign that reads "Need an attorney? Law, By George wills, divorces, accidents, litigation, incorporations and more. Licensed in Kentucky and Indiana."

A graduate of the University of Kentucky School of Law, class of '67, the one-time Internal Revenue Service attorney in Boston worked for a large firm in Louisville until a few years ago. He has argued cases in federal court, the Kentucky Supreme Court and the Indiana Court of Appeals. But one day he decided to slow down, and now he contents himself with a more down-to-earth practice.

"For years I did mostly civil work primarily insurance defense cases and I do a little criminal law now," said Carter, 61. "With the big firms, there is pressure to make money and I'm not a good business person."

CARTER MAINTAINS an office at 710 Barret Ave. in Louisville during the week, but he is available for consultations mostly on Saturday and Sunday afternoons for anyone who stops by his flea-market booth.

This tops the TV show concept: Ed, the Bowling Alley Lawyer (which was canceled last month, BTW, either for lack of clients, or lack of bowlers, or most likely, lack of viewers)!

Posted by Marcia Oddi on Wednesday, March 17, 2004
Posted to General Law Related

Indiana Decisions - Two Tax Court Opinions Posted Today

Mid-America Publishing, Inc. v. Indiana Department of State Revenue (3/16/04 IndTaxCt) [Sales Tax; Not for Publication]
Fisher, J.

"The issue in this case is whether sales of custom printed calendars bearing a business logo, with the licensed image of the Indiana University Mens basketball team, are taxable retail transactions."

Mid-America is the official licensed publisher of Indiana University Mens Basketball schedule-calendars (calendars). During the years at issue, Mid-America solicited orders for, and took payment from, businesses (customers) that wished to advertise on the calendars. Mid-America then purchased the calendars from a third-party that imprinted them with the customers logos and contact information. Mid-America then delivered the calendars, without alteration, to its customers, who in turn gave them to their patrons as promotional items. Mid-America did not collect sales tax from its customers on those transactions during the years at issue. * * *

Mid-America protests that but for its customers desire to advertise, it would not have purchased calendars in the first place. However, the facts and evidence reveal that but for Mid-Americas customers desire to advertise on the calendars, Mid-America would not furnish calendars. Mid-Americas own testimony shows that the calendars, with the images of Indiana Universitys basketball team and the customers logos, are absolutely critical to the transaction there would be no transaction but for the customers desire to associate with the basketball program. Therefore, any services provided by Mid-America are incidental to the purpose of the transaction the sale of calendars.

CONCLUSION. For the foregoing reasons, the Court AFFIRMS the Departments imposition of sales tax against Mid-America.

[Note: My question is, where are these calendars? I haven't been able to find one for the past three seasons!]

Umbaugh, M.D. & Claud Sympson v. Department of Local Government Finance (3/16/04 IndTaxCt) [Valuation of Real Property; Not for Publication]
Fisher, J.

The Petitioners failed to provide objective evidence demonstrating that they were entitled to the base rate and physical depreciation adjustments they requested. Accordingly, the Court AFFIRMS the final determination of the State Board.
Re Unpublished Court of Appeals Opinions. Here is a snippet from the Indiana Law Blog entry of Feb. 21, 2004 on unpublished opinions. See the entire ILB discussion of Rule 65 here (following upon a 7th Circuit discussion).
How available are the unpublished Indiana Court of Appeals decisions? My experience (please correct me if you have better information) is that paper copies of the unpublished opinions may be obtained from the Clerk of the Court. (Of course, you will need to ask for them by name.) The Indiana Tax Court posts both its published and unpublished opinions on line; the latter are designated "Not for Publication." The Court of Appeals does not post its not-for-publication opinions online, although I do believe that back in the pre-Internet days when the Supreme and Appellate opinions were available via a dial-up bulletin board system, not-for-publication opinions were included. Finally, it does not appear that West publishes the not-for-publication Indiana opinions, but simply notes the existence of each opinion. This is unlike the 7th circuit and other federal opinions which, as Judge Easterbrook notes in his letter, are made available "on Westlaw, Lexis, and the Federal Appendix."

Posted by Marcia Oddi on Wednesday, March 17, 2004
Posted to Indiana Decisions

Environment - Regular Taxpayers will pay for Most Superfund Cleanups This Year

"Since Congress allowed Superfund's polluter pays fees to expire in 1995 and the trust fund is now essentially bankrupt, regular taxpayers, who paid 18 percent of program costs in 1996, will pay for virtually all cleanups at abandoned sites this year." That quote is from this press release from Environmental Media Services, dated March 11, 2004. More:

The Senate rejected an amendment today that would have reinstated Superfund's polluter pays fees. Senator Lautenberg's amendment to the Budget Resolution would have reestablished a dedicated funding source for cleanups at more than 1200 Superfund sites across the country, protecting the health of millions of people while making polluters foot the bill for toxic waste site cleanups. U.S. PIRG commended those Senators who voted for the amendment, including Senators Snowe (ME), Collins (ME), Nelson (NE), Bingaman (NM), Bayh (IN), and McCain (AZ) who showed new support for making polluters pay. * * *

Funding for the Superfund program decreased by at least 25 percent between 2001-2004 compared with 1992-2000, with site cleanups slowing down nearly 50% in the last three years. Last year, the Bush administration cleaned up only 40 Superfund toxic waste sites compared to an average of 87 sites per year in the middle and late 1990's. The EPA Inspector General recently reported a $175 million funding shortfall for fiscal year 2003.

The Kokomo Tribune reports today here (registration required) that "Bayh has a change of heart on 'polluter pays' levy." Some quotes:
Alarmed by the slowing pace of federally funded environmental cleanups, U.S. Sen. Evan Bayh has reversed his stance on "polluter pays" taxes against oil and chemical companies. * * *

For more than a decade, the "polluter pays" tax was used to fund the federal Superfund, which at its height contained more than $3 billion for cleanups. But Congress allowed Superfund's polluter pays fees to expire in 1995 and the trust fund is now essentially bankrupt.

The fund's insolvency affects Kokomo's Continental Steel site, the largest polluted site in the U.S. Environmental Protection Agency's Midwestern region.

The Superfund was the primary funding source for the cleanup of so-called "orphan sites" like Continental Steel, whose owners could neither be found nor be held liable. Before the Superfund ran out of money, orphan sites comprised about 30 percent of all cleanups; federal officials were able to find responsible parties to clean up the remaining 70 percent.

Without money from oil and chemical companies, any cleanup funding must now come from taxpayer revenues -- a difficult proposition considering the nation's $500 billion-plus budget deficit.

Proving that there are not easy answers, read that last paragraph in conjunction with this story today in the Washington Post, titled "Chemical Industry in Crisis: Natural Gas Prices Are Up, Factories Are Closing, And Jobs Are Vanishing." Some quotes:
As the nation's manufacturing base seems to shrink daily from factories closing or relocating overseas, the health of the chemical sector is a crucial measure of how deep the problem goes. And chemicals are in crisis, squeezed not only by cheap foreign competition but also by soaring energy costs.

Across the country, 1 in every 10 chemical-related jobs has vanished in the past five years -- nearly 100,000 workers -- and that number would be worse if not for a surge in one segment, pharmaceuticals.

The chemical industry's eight-decade run as a major exporter has ended, with a $19 billion trade surplus in 1997 becoming a $9.6 billion deficit last year, according to the American Chemistry Council.

Governors and chemical executives have appealed to the White House and Congress for help. They argue that the chemical problem is making the nation's broader manufacturing meltdown even worse, pushing factories to relocate offshore not only for cheap labor but to be near chemical suppliers.

Posted by Marcia Oddi on Wednesday, March 17, 2004
Posted to Environmental Issues

Indiana Law - Indiana Clerk of Courts Changes Become Law

With the passage of SEA 72, Indiana has joined the 48 other states with an appointed Clerk of Courts. According to the bill, that passed unanimously in the House and Senate, current Clerk of the Courts David C. Lewis Lewis will complete his current term of office. Lewis was appointed by Governor Kernan in November, 2003 to fill a vacancy following the resignation of Brian Bishop. The current term ends on January 1, 2007. At that time, or upon Lewiss resignation, the next Clerk of Courts will be named by the Chief Justice of the Indiana Supreme Court.

This information is from a release just issued by Mr. Lewis. Here is a copy. The changes in the law are part of SEA 72, a 118-page bill "concerning elections." The Clerk of the Court changes are found in a number of SECTIONS of the bill, including 3, 52, 56, 79, 98, 178, 179, 181 and 183. However, the main provision is found at SECTION 198 (p. 114 of the pdf version).

For earlier Indiana Law Blog entries on the Office of Clerk of the Courts and on making the Clerk an appointed position, check the following links: Nov. 3, 2003; Nov. 10, 2003; Nov. 14, 2003; and Jan. 10, 2004. As these are on the old IBL site, use your browser back key to return.

Posted by Marcia Oddi on Wednesday, March 17, 2004
Posted to Indiana Law

Farewell, Governor Orr

Gov. Robert D. Orr, 1917-2004 His own place in history Hundreds attend memorial service for former Indiana governor.

So reads the heading to this story today in the Indianapolis Star recalling Governor Orr and describing the services yesterday at the Indiana Statehouse.

Don't miss this great Letter to the Editor today by Dr. Woody Myers, Governor Orr's Indiana state health commissioner from 1985 to 1990, describing the leadership Governor Orr displayed in confronting the AIDS epidemic in the 1980s. "[I]t was Bob Orr's courage that catalyzed other states to follow Indiana's leadership. It was Orr's compassion that set the tone for a nation confronting an epidemic laced with fear. A lot of folks didn't expect national leadership on AIDS public policy from Orr and the state of Indiana. But they got it." Dr. Myers concludes his tribute with: "Bob Orr was far more than a good Republican. He was a great Hoosier, and a thoughtful, kind and decent man. Indiana and the nation will miss him."

Govenor Orr's hometown, Evansville, has this final salute today in the Evansville Courier & Press.

Posted by Marcia Oddi on Wednesday, March 17, 2004
Posted to General News

Tuesday, March 16, 2004

Environment - Mercury Emissions; Coal-Fired Power Plants; Varying Views

This lengthy story in the LA Times today is headed: "Mercury Emissions Rule Geared to Benefit Industry, Staffers Say: Buffeted by complaints, EPA Administrator Michael Leavitt calls for additional analysis." Some quotes:

WASHINGTON Political appointees in the Environmental Protection Agency bypassed agency professional staff and a federal advisory panel last year to craft a rule on mercury emissions preferred by the industry and the White House, several longtime EPA officials say.

The EPA staffers say they were told not to undertake the normal scientific and economic studies called for under a standing executive order. At the same time, the proposal to regulate mercury emissions from coal-burning power plants was written using key language provided by utility lobbyists.

The Bush administration has said that the proposed rule would cut mercury emissions by 70% in the next 15 years, and is tied to the president's "Clear Skies" initiative. Critics say it would delay reductions in mercury levels for decades at a risk to public health, while saving the power and coal industries billions of dollars.

And here are quotes from three Opinion Pieces that have appeared in the Indianapolis Star over the past three Sundays. First, from Feb. 29, 2004, "My View" by James Rogers, CEO of Cinergy:
As CEO of an energy company that burns 30 million tons of coal annually and which has invested nearly $2 billion since 1990 to reduce emissions, I follow environmental issues with great interest. Recently, mercury has been in the news. An Indianapolis Star editorial (Feb. 17) advocated that the state strengthen mercury rules over what the federal government has proposed. Indiana has a big stake in this debate -- health and environmental impacts, use of Indiana coal, electric rate competitiveness and economic development.

If Indiana sets its own mercury regulations, it should take a comprehensive, multi-pollutant approach. In other words, we shouldn't just focus on mercury. Recently, Indiana determined that many counties are out of compliance with new federal standards for fine particle emissions. The state must therefore focus on strategies that address other types of emissions (including sulfur dioxide and nitrogen oxide) rather than reacting solely to mercury.

Next, from the following Sunday, March 7, 2004, "My View" by Jim Merritt, Merritt is chairman of the Indiana Senate Committee on Utility and Regulatory Affairs.
So, like it or not, coal is the practical fuel of choice for Indiana's future.

The good news is that we have lots of it. The bad news is that its combustion produces nasty black clouds full of unhealthy compounds if the burning process is uncontrolled. That's why our government requires anyone who burns coal to control the resulting emissions. Since 1970, coal-produced electricity for the U.S. has gone up three times, while emissions from coal-fired power plants have decreased 35 percent.

Electric utilities in Indiana now spend about $1 billion to sharply limit the emission of a single pollutant: nitrogen oxide. They estimate they'll soon spend at least that much to limit mercury. That's on top of the hundreds of millions already spent to limit sulfur dioxide emissions.

I want reliable electric service and cleaner air, so I'm willing to pay the price. I think most Hoosiers are. But we have to understand the economics at work here. Utility customers incur a cost every time their utility properly recovers the costs of cleaner emissions. Indiana has the eighth-lowest statewide electrical rates in the country.

Finally, from last Sunday, March 14, 2004, some quotes from "My View" by Ann D. Murtlow, CEO of Indianapolis Power & Light.
All desire further improvements in air quality, and the successes of the past give us plenty of room to be optimistic. However, the fractured regulatory and legislative initiatives currently on the table are troubling. Separate initiatives have been proposed to deal with different types of air emissions from the same power stations. For example, one proposal would require mercury reductions as early as 2007, while another would require sulfur dioxide and nitrogen oxide reductions in 2010 and 2015, respectively. Given that the technologies used to control one pollutant can, and often do, affect the emission of others, a coordinated approach and timetable is clearly superior to an incremental approach that could easily lead to an inefficient technical and economic investment.

IPL advocates a single, federal legislative initiative, like Clear Skies, that provides sufficient clarity to the utility industry to enable careful planning and investment for the future. Such legislation should be based on solid scientific research, provide a coordinated multi-pollutant plan, and provide a realistic timetable for implementation. A cap and trade system is also beneficial as it provides an incentive to the industry to make the most cost effective improvements first -- something that was demonstrated as a highly effective component of the Clean Air Act Amendments of 1990. Contrary to the position taken by The Star on Feb. 17, we believe that the state of Indiana should resist the temptation to further confuse and fracture the current situation by regulating to different standards and timetables than the federal government. Not only would this further frustrate the process, it could also significantly hurt our prospects for economic development as compared to neighboring states. Rather, we would encourage state legislators and IDEM officials to continue to work closely with federal officials to promote a workable, multi-pollutant approach that will bring benefits to the citizens of Indiana for years to come.

The Feb. 17 Indianapolis Star editorial referred to in several of the "My View" pieces is available here (but will be gone soon, as the Star has a one-month archive policy). Here is the beginning:
Our position is: Indiana should follow the example of states that are not waiting for a federal solution to mercury poisoning.

Anational policy is needed to combat the menace of mercury pollution, but states should not hesitate to attack the problem in their back yards, especially when the national framework is slow in coming and may not be tough enough for the worst cases.

Indiana is one of those worst cases, ranking fourth in the amount of mercury emissions, thanks mainly to its reliance on coal-fired power plants for generating electricity.

Yet the Indiana Department of Environmental Management says it will content itself with contributing to the Bush administration's development of a national policy. Now in its proposal stages, that policy has been criticized by environmental groups and some states as taking too long to reduce a toxic chemical linked to brain, kidney and fetal damage. Even when finalized, it is expected to be delayed in implementation by legal challenges.

Also of interest in seeing all points of view may be the no longer freely available NY Times story from March 7, 2004, which is quoted in this Indiana Law Blog entry from that date, titled "Behind-the-scenes look at Admiistration's Development of Energy Policy."

[Update 6:06 pm] Here is a story I've just read, from the NY Times today, titled "E.P.A. May Tighten Its Proposal on Mercury." The lead:

The Bush administration says it is rethinking its proposed rules limiting mercury emissions from coal-burning power plants and as a result may tighten the proposal. Administration officials, who have been under pressure on the issue from states and environmental groups, are now uncomfortable with analyses indicating that if the proposal is adopted, the Environmental Protection Agency could miss, perhaps by more than a decade, its own 2018 target for reducing those emissions by 70 percent.

Michael O. Leavitt, who took the helm of the environmental agency only weeks before the proposed regulations were announced, was largely uninvolved in their initial development. But in the last several weeks, E.P.A. employees say, he has immersed himself in briefings about the rules, which have provoked criticism from scientists, state officials and environmental advocates.

"I've spent hours in briefings," Mr. Leavitt said in an interview on Monday. "I've been crawling through the blueprints of power plants. I've been meeting with people on technology, both engineers and scientists." On Friday, Mr. Leavitt briefed the White House, where, administration officials say, he indicated that his agency would consider exploring tougher alternatives or adjustments to the proposal.

[Update 3/17/04]Stories today from the LA Times: "A bipartisan group says the Bush proposal is slanted toward industry and is too weak to protect public health" and the Washington Post: "Concerned that the administration may not meet its target for reducing mercury emissions by 2018, Environmental Protection Agency Administrator Mike Leavitt has ordered additional studies to see how it might tighten the proposed rule."

Posted by Marcia Oddi on Tuesday, March 16, 2004
Posted to Environmental Issues

Indiana Law - Judicial Disciplinary Charges Filed Against Lake County Judge

This information was just released from the Office of the Chief Justice of Indiana:


The Indiana Commission on Judicial Qualifications filed judicial disciplinary charges today against Judge James Danikolas of the Lake Superior Court, Civil Division 3.

The Commission alleges that Judge Danikolas committed judicial misconduct when he fired former Magistrate Kris Costa Sakelaris on May 1, 2003. The Commission maintains that Judge Danikolas wrongfully fired Ms. Sakelaris in retaliation for her truthful testimony during a deposition in a prior disciplinary case involving Judge Danikolas.

Specifically, the Commission alleges that Judge Danikolas violated judicial ethical rules which require judges to uphold the integrity of the judiciary, to be faithful to the law, to discharge their administrative duties without bias or prejudice, and which prohibit them from using the power of the judicial office to advance their own interests.

Judge Danikolas may file an Answer to the Charges within 20 days. Then, the Supreme Court will appoint a panel of three judges to preside over an evidentiary hearing and report their findings to the Supreme Court. Judge Danikolas is represented by Stanley Jablonski, (219) 736-7101.

Posted by Marcia Oddi on Tuesday, March 16, 2004
Posted to Indiana Law

Indiana Decisons - Four new Court of Appeals opinions posted today

Stephen and Brenda Argabright v. R.H. Marlin, Inc. (3/16/04 IndCtApp) [Worker's Compensation]

Dennis Ruggieri v. State of Indiana (3/16/04 IndCtApp) [Criminal Law & Procedure]

Loren Jay Adams v. State of Indiana (3/16/04 IndCtApp) [Criminal Law & Procedure]

April L. Sudvary v. David E. Mussard (3/15/04 IndCtApp) [Family Law]

Posted by Marcia Oddi on Tuesday, March 16, 2004
Posted to Indiana Decisions

Environment - D.C. Drinking Water Lead Contamination

The Washington Post has been running stories for several weeks now about the lead contamination of the District's drinking water. Access the Special Reports page here. Today's paper has a story with this lead:

Federal authorities responsible for ensuring the safety of Washington's water knew about the toxic levels of lead and the likely solution more than a year ago but took no action, according to records and interviews.

On Nov. 21, 2002, a staff member in the U.S. Environmental Protection Agency's regional office in Philadelphia told his supervisors in writing that "fast action" might be needed to solve the lead contamination problem in the water.

The alarm, sounded by an EPA liaison to the District, was based on test results received a few months earlier that confirmed unsafe amounts of lead in the District's tap water. On Nov. 26, the EPA staffer also e-mailed the D.C Department of Health about the public health risk, according to a copy of the correspondence, but there are no indications that local officials followed up.

Posted by Marcia Oddi on Tuesday, March 16, 2004
Posted to Environmental Issues

Indiana Law - Is There a Time When Public Information is Too Public?

This question has come up before, in the case, for instance, of making public court records available on the internet. But the issue may have been taken to a new level last month by the Muncie Star-Press, as reported today in this AP story in the Indianapolis Star headlined: "Debate swirls over paper's use of photos: Some sex offenders have lost jobs since Muncie newspaper ran pictures on front page." Some quotes:

At least five of the 63 Muncie-area men and women pictured in The Star Press on Feb. 15 have lost their jobs, some of them because they had not revealed their past to their employers, said sheriff's Deputy Steve Case.

What the newspaper did has divided this city of 66,000 and stirred debate among journalists. Other papers around the country have run photos of sex offenders. But The Star Press may have gone further than most, devoting half of the front page of the Sunday paper to the photos. Inside, it also listed the offenders' crimes and home addresses. * * *

The information on the 60 men and three women was drawn from Indiana's sex offender registry, established in 1994 to give people a way of learning whether neighbors, coaches and others are released rapists or child molesters.

Star Press Executive Editor Evan Miller said the newspaper realized that some of the 63 could suffer, but "we made a decision that the information was more valuable than the potential for fallout." The newspaper's aim was to help publicize the sex-offender registry, Miller said.

The Feb. 15th Star-Press front page is no longer available, but this quote from the paper indicates the derivation of the information:
Sixty-five convicted sex offenders were listed on the Indiana Sheriff's Association Web site as living in Delaware County as of Thursday. The 63 with photos on the Web site are pictured on 1A of today's paper and can be identified using this list and the accompanying key.
The twist. Rather than taking public information from public files and making it more available by placing it on the internet, the Star-Press arguably went one step further by taking that public information from the internet and publishing it on the front page of its Sunday paper. The issue: Is "public" public, or are there (or should there be) gradiations?

Posted by Marcia Oddi on Tuesday, March 16, 2004
Posted to Indiana Law

Indiana Law - More Information on Proposed PERF Information Lock-Down

More information is available this morning on the proposal, via HEA 1285, to amend various retirement fund laws, including the General Assembly's, to limit public access to fund records.

House Enrolled Act 1285 was presented to Governor Kernan on March 11, 2004. Under Article 5, Sec. 14 of the Indiana Constitution, he has "seven days after the day of presentment to act upon such bill."

More editorials and stories today on the proposal. The Indianapolis Star has this editorial. Some quotes:

Our position is: The public does not stand to profit from pension privacy the legislature voted for itself. * * *

Especially legislators. No state employee gets the kind of deal these part-timers enjoy. For every dollar they kick in, the taxpayers contribute $4. That's $5.5 million of your money since 1998, and it's not the only retirement perk these public servants rake in along with their salary, per diem and health benefits.

No wonder HB 1285 was hastily amended retroactive to a time before WTHR (Channel 13) requested a look at the pension funds and was told by the state public access counselor that the law allowed it.

The Munster NWI Times also has a new editorial today. Access it here. The Times also has this story today headlined: "Daniels decries hidden pensions -- GOP candidate: 'We are going to have a major cleanup job to do in Indiana state government.'" Some quotes:
SCHERERVILLE -- GOP gubernatorial candidate Mitch Daniels is taking the state Democratic administration to task for hiding pension payments to corrupt local officials.

"I can't think of a logical reason that you would reward people who chose to abuse the public trust. We are going to have a major cleanup job to do in Indiana state government," Daniels said Monday during a trip to Lake County.

A Times investigation revealed that more than a dozen former Lake County officials convicted of graft are members of the Public Employee Retirement system and eligible for benefits.

PERF officials delayed for more than a month before complying last week with the State's Access to Public Records law and providing the names. They refused to disclose individual records showing how much it pays Lake County officials convicted of lining their pockets. * * *

"Way too much about Indiana government is secret now," Daniels said. "The whole world of pensions is shrouded in secrecy. As part of a general housecleaning, we will be looking to raise Indiana's standards not only in ethics, but also of openness."

Finally, for now, today's Indianapolis Star also has this Letter to the Editor from long-time state Senator Joe Harrison, author of both HEA 1285 and the 2001 changes. Some quotes:
Over the last few years, The Star has been quick to report on scandals and fraud within the Public Employees' Retirement Fund. The problems occurring in that office were frightening. In 2001, we passed a law to protect thousands of current and former state employees' pension records. The intent was to protect all state employees at all levels of government. It was brought to my attention that the 2001 measure covered only a select group, excluding prosecutors, judges, some law enforcement officers and legislators. In turn, we passed a provision this year to make the law all-encompassing.
The Indianapolis Star did indeed bring about the initial investigations of PERF. However, this occurred not in 2001 but in August of 2002, when an investigation by the Star revealed that a convicted felon had been hired to serve as Chief Benefits Officer for Indianas Public Employee Retirement Fund.

Posted by Marcia Oddi on Tuesday, March 16, 2004
Posted to Indiana Law

Monday, March 15, 2004

Indiana Law - Public Access Counselor Opinion on PERF Privacy Issue

Here is the Indiana Public Access Counselor's opinion referred to in the Indianapolis Star March 11th editorial. (It is a scan of a fax, but is readable.) See particularly the third paragraph on page 3, which discusses PERF's assertion that the current confidentiality provision (i.e., "the 2001 provision," for those of you who have read the prior Indiana Law Blog posts) applies to ALL funds administered by PERF, and concludes that the current provision only applies to public empoyees' and teachers' PERF. The opinion suggests that the failure of the 2001 language to cover the other funds (including the legislators' and the courts' funds) may have been a legislative oversight, but then continues:

However, unless and until the General Assembly takes action to protect the membership records of all the funds administered by PERF, I am required to give force and effect to the plain language of the statutes, and to apply the statutory exemptions to disclosure narrowly.
In addition, the Indiana Law Blog has received this copy of a letter, dated March 11, 2004, sent by the Society of Professional Journalists to Governor Kernan, urging him to veto HEA 1285.

Third, here is a link to an editorial published today in the Munster NWI Times, urging the Governor to veto the bill. (It makes the point, but perhaps with too broad a brush.)

Finally, here are links to earlier Indiana Law Blog posts on HEA 1285, most recent first: Here, here, and here.

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Law

Indiana Law - Clark County to Fund Alternative Ways to Resolve Family Disputes

"Paternity, divorce, separation fees rising in Clark County" is the headline to this story in the Louisville Courier-Journal today that begins:

Clark County is raising the fees it charges for filing a divorce, separation or paternity petition by $20 to give low-income people access to mediators in such cases.

This month Clark County became one of 11 Indiana counties to take advantage of a 2003 state law that authorizes the higher fees to support a fund for alternative ways to resolve disputes.

The $20 increase, which will take effect April 1, will bring the cost of divorce and separation filings to $129 each and paternity filings to $149.

Officials expect the increase to bring in $16,000 a year, which will pay some or all of the cost of mediation for low-income people.

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Law

Indiana Law - Licensed to Carry in Allen County

A great feature today in the Fort Wayne News-Sentinel surveys who is "licensed to carry" a handgun in Allen County, including a section headed "Among those you might recognize on the public list of permit holders are ...".

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Law

Indiana Decisions - 7th Circuit Panel Rules on Election Law Case, in a Split Decision

Brian Majors v. Marsha Abell (3/15/04 USCA 7th Cir.)

POSNER, Circuit Judge. An Indiana statute, challenged in this suit as an infringement of free speech, requires that political advertising that expressly advocat[es] the election or defeat of a clearly identified candidate contain a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for . . . the communication, Ind. Code 3-9-3-2.5(b)(1), (d), and makes violation a misdemeanor. 3-14-1-3. Disclaimer is a misnomer; the correct word would be disclosurebut as well see, that word has been appropriated to describe a reporting requirement.

The district court dismissed the suit on jurisdictional grounds that we concluded were unsound, 317 F.3d 719, 721-23 (7th Cir. 2003), but we decided that we should not attempt to decide the merits of the plaintiffs constitutional challenge until we obtained an authoritative interpretation of the statute from the Indiana Supreme Court.

There is much more, but you will need to read it for yourself. Judge Posner's concluding paragraph:
As an original matter it could be objected that speech and the press would no longer be free if the government could insist that every speaker and every writer add to his message information that the government deems useful to the intended audience for the message, and that it is arbitrary for the government to single out the identity of the writer or speaker and decree that that information, though no other that potential voters might value as much or more, must be
disclosed. But the Supreme Court crossed that Rubicon in McConnell. Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional. The decision of the district court is modified to place the dismissal of the suit on the merits, and as so modified is AFFIRMED.
EASTERBROOK, Circuit Judge, dubitante. His opinion runs from page 12 through 17. His concluding paragraph:
Indiana does not contend that requiring disclosure by plaintiffs Carol Antun, Perry Metzger, and Bruce Martin who want to use their own resources to speak on behalf of candidates of the Libertarian Party (and oppose incumbents, for libertarians do not occupy any major office in Indiana) is essential to avert a material risk of underground favor-trading or bribery. Nor does the state try to justify mandatory disclosure by any truly independent speaker. Instead Indiana contends that it is entitled to regulate all electioneering by every speaker in order to avoid drawing lines. Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law.
BTW: The Latin term "Dubitante" means, in a UK legal context: "doubting the correctness of the decision." The term "dubitante" means doubting: BLACK'S LAW DICTIONARY 499 (6th ed. 1990). Is such an opinion a concurrence or dissent? Here is a discussion from a document titled "The Operation and Jurisdiction of the Florida Supreme Court," found at part II(C)(5) of the document (access it here):
The rarest category of separate opinions are those issued "dubitante,"[90] a notation expressing serious doubt about the case. Only one such opinion has been issued in the Court's history, although it is recent.[91] With this sparse usage, it still is not entirely clear in Florida whether a dubitante opinion should be regarded as a type of concurrence or dissent or something else,[92] or indeed, whether a dubitante opinion can constitute the fourth vote necessary to fulfill the constitutional requirement that four justices must concur in a decision.[93]

In the federal system, an opinion designated "dubitante" at least sometimes appears to constitute a very limited form of concurrence,[94] and some federal judges have gone to the trouble of designating their opinions as "concurring dubitante."[95] At least one has issued a dubitante opinion that expressly concurred in part and dissented in part, although the author seemed to indicate doubts only as to the partial concurrence.[96]

In Georgia, the courts have sometimes issued "dubitante" dissents, apparently meaning dissenting views in which the author has serious doubt.[97] Thus, a "dubitante dissent" would seem to constitute a species of dissenting opinion less vigorous than a full dissent. However, there also seem to be times when an opinion marked merely "dubitante" is neither a dissent nor a concurrence, but an expression of doubts so grave that the judge or justice can neither agree nor disagree with the majority.[98] This probably is the best construction, for example, in those rare cases in other jurisdictions in which a judge votes "dubitante" without writing a separate opinion.[99]

Because of the still uncertain nature of dubitante opinions in Florida, the better practice would be for the authors to indicate whether they intend to concur, to dissent, or neither to concur nor to dissent. Perhaps a statement to that effect could be included in the text of the opinion.

In any event, a statement that the justice "concurs dubitante" certainly would seem necessary where the dubitante opinion is relied upon as the fourth vote needed to create a binding decision; but even then, it remains to be seen whether that concurrence would give the written opinion itself the value of precedent. Some diminished form of precedential value might be in order in such a situation, but only where it is clear from a careful reading of the different opinions that at least four members of the Court, in fact, have agreed on some rationale, not merely the result. Otherwise, there would be no court opinion, and the plurality's view would not create precedent beyond the case at issue.

Here are the footnotes related to the federal system discussion:
94. Indeed, some federal judges have marked their separate opinions with the heading "concurring" but have indicated in the text that the opinion is "dubitante." New York v. Halvey, 330 U.S. 610, 619 (1947) (Rutledge, J., concurring); see also Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 403 (1967) (Douglas, J., dubitante); Radio Corp. v. United States, 341 U.S. 412, 421 (1951) (Frankfurter, J., dubitante).

95. E.g., Feldman v. Allegheny Airlines, 524 F.2d 384, 392-93 (2d Cir. 1975) (Friendly, J., concurring dubitante).

96. United States v. Walker, 9 M.J. 892, 894 (A.F.C.M.R. 1980) (Mahoney, J., dissenting in part, concurring in part, & dubitante).

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Decisions

Indiana Decisions - Interesting Ineffective Assistance Ruling by 7th Circuit, Affirming SD Ind.

Charles E. Sweeney, Jr. v. Steve Carter, AG of Ind. (3/15/04 USCA 7th Cir.)

DIANE P. WOOD, Circuit Judge. Laypersons sometimes do not realize that the federal government and the state governments are separate sovereigns for purposes of criminal prosecutions, and thus that prosecutors from both may pursue charges for conduct covered by both laws. Lawyers should know better. To his regret, Charles Sweeney made this mistake after his lawyer concluded a plea agreement with the U.S. Attorneys Office in conjunction with certain charges stemming from the murder of Daniel Guthrie. The lawyer told Sweeney that this agreement, coupled with an alleged oral promise from the state prosecutors office, protected him from any use the state might have made of these statements. The state of Indiana thought differently, and based on the information Sweeney gave to the federal authorities, it investigated, brought charges, and convicted him for Guthries murder. After exhausting his appeals at the state level, Sweeney sought habeas corpus relief on the ground that his attorneys mistaken advice about the alleged use-immunity agreement amounted to constitutionally ineffective assistance under the Fifth Amendment to the U.S. Constitution (not the Sixth). Because no such right has been clearly established by the United States Supreme Court, we affirm the district courts dismissal of Sweeneys petition.

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Decisions

Indiana Law - FBI investigation of alleged improprieties at the Marion County Small Claims Court; possible BMV tie-in

Judge Terry Hursh of the Marion County Small Claims Court has just released this statement to the press:

It has been brought to my attention by the Federal Bureau of Investigation, that the Small Claims Court for Marion County is under investigation at this time. The investigation pertains to possible improprieties involving monies related to the property title portion of the Court's responsibilities. A lack of paperwork, and adherence to written policies governing the use and accounting for funds by my staff is the cause of the investigation.

The Court continues to have important business to conduct on behalf of the citizens of Marion County. For that reason, I am taking the following specific steps to assist with this investigation:

1. This Court is cooperating fully with the FBI in their efforts, and will continue to do so. All records, files, and other materials in the Court have been made available to the FBI without reservation.

2. Any staff members targeted by the FBI or other law enforcement agencies for investigation will be immediately suspended with pay pending the outcome of the investigation, or determination by the FBI that the individual is no longer a target.

3. I am asking the Marion County Prosecutor's office to participate in our internal review to help identify any areas of wrongdoing that are outside the FBI's jurisdiction.

4. I am requesting assistance from all agencies involved in the granting and administration of titles including but not limited to the Bureau of Motor Vehicles and the BMV Task Force set up by the Governor, to assist my office in establishing new procedures to make certain checks and balances preclude any single person or group from undermining the process for personal gain.

First we must address the issues raised by the investigation, and then we must create a system that stops problems from happening again.

The FBI has been extremely professional in this process. I want to thank them for bringing this to my attention, and will continue to support their efforts. I look forward to working to restore confidence in this Court, and am angry like any taxpayer about criminal activity wherever it takes place, and want justice to be served. While this investigation continues, this Court will get back to the business of serving the people of Marion County.

[Update] This brief report has now been posted on the Indianapolis Star website.

[Update 3/16/04] More today here in the Indianapolis Star. A quote:

A small-claims judge said Monday that federal agents are investigating his Lawrence Township court for "improprieties" involving money that may be linked to the Indiana Bureau of Motor Vehicles.

Terry Hursh, a Republican serving his second term as Lawrence Township's small-claims court judge, said it appears his signature stamp was improperly used to issue court orders that permit people to obtain motor-vehicle titles from the BMV.

The agency is the target of a continuing criminal investigation into charges that foreign nationals used bogus visas, passports and other immigration documents to obtain Indiana driver's licenses and state identification.

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Law

Law - Mississippi Supreme Court Justice Indicted

"Not From a Grisham Novel, but One for the Casebook" is the heading for this story today in the NY Times that begins:

JACKSON, Miss. In the Mississippi of John Grisham's legal thrillers, the courts are nests of chicanery and corruption. This has led more than a few indignant Mississippians, lawyers especially, to brand the author as a defamatory purveyor of lurid and improbable pulp.

But one recently issued text makes Mr. Grisham look as refined and restrained as Henry James: the federal indictment pending here against a sitting State Supreme Court justice, his former wife, two former judges and one of the state's most prominent lawyers.

Mississippi justice, the indictment suggests, is built on cozy relationships and fueled by bribes. This is a state, after all, where the Supreme Court justice in question, Oliver E. Diaz Jr., lived rent-free in a Biloxi condominium owned in part by the lawyer, Paul S. Minor.

Yesterday's issue of the Jackson Mississippi Clarion Ledger ran this story, headlined "Chamber may back candidates: Business-friendly high court is goal" re U.S. Chamber of Commerce' plans. Some quotes:
WASHINGTON Because the U.S. Chamber of Commerce wants to make Mississippi courts friendlier to business, it may repeat its efforts this year to influence Supreme Court elections as it did in 2000 and 2002 with varying success.

"We have not made any decisions yet," Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform, said last week.

But she hopes to raise $40 million this year to lobby Congress and state legislatures on changes to the legal system. The money from some of the chamber's big business members, including Aetna, Home Depot, Ford, General Electric and Johnson & Johnson, also will be spent on television and other ads aimed at influencing voters to choose candidates the chamber favors in state Supreme Court races. The states' trial lawyers are expected to support opponents of the chamber-backed candidates.

Mississippi has four Supreme Court races this year. They are contests for the seat of retiring Chief Justice Edwin Pittman and the re-election bids of Justices James Graves Jr., William Waller Jr. and George Carlson Jr.

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to General Law Related

Indiana Law - Even More on PERF Privacy

Last week the Indianapolis Star ran an editorial on "PERF privacy," criticizing HEA 1285, now awaiting action by Governor Kernan. The Star editorial said the bill would "close public employee pension records to public scrutiny." (Access the Indiana Law Blog write-up, from March 11, 2004, here.)

Yesterday this Indiana Law Blog entry (or simply scroll down), titled "More on PERF Privacy and the Star's Editorial," reported that actually the limits on access to most PERF records had been put in place by 2001 legislation and that HEA 1285 extended the access limits to legislators, courts and court officer, and a few others.

This front-page story today in the Indianapolis Star gets those details right. Some quotes:

"You can't provide any scrutiny to the system if everything is private," said Charles Davis, executive director of the Freedom of Information Center at the University of Missouri. He noted that most states at least make public the amount of pensions that public employees get.

In Indiana, public records that are available shed some light on just how lucrative legislative pensions are:

Since 1998, taxpayers have kicked in $5.5 million for legislators' pensions. The amount of taxpayer contributions has climbed as legislators earn more money -- from $715,153 in 1998 to $1.04 million in 2003. Some legislators who have other public jobs, such as that of teacher, or university employee, get an even better taxpayer-funded retirement.

Legislators are the only public employees allowed to borrow from their retirement funds. As of Thursday, 25 lawmakers have 26 loans with outstanding balances of $523,045.

About 200 retired and current lawmakers participate in the legislators' retirement system, with assets totaling $11 million.

Legislators also participate in the state's deferred compensation plan, a second retirement option in which the state matches up to $390 per year. Taxpayers have kicked in $173,250 since 2000 in that plan.

* * *

The individual pension records of more than 200,000 public employees are already confidential. That law was passed in 2001. At issue are the approximately 11,800 members of five smaller funds, which cover prosecutors, judges, legislators and some law enforcement officers. These are administered by the Public Employees' Retirement Fund, and Sen. Joe Harrison, R-Attica, said he thought the 2001 law made the individual pension records of the small funds secret. But some say they aren't, which prompted Harrison to shepherd through this latest provision. "I didn't realize it wasn't covered by the law. We always intended for it to be confidential," Harrison said.

So what is the answer? As the result of the 2001 law, most PERF records are already subject to this exception to the public records law:
Fund records of individual members and membership information are confidential, except for the name and years of service of a fund member.
HEA 1285 would add legislators and others omitted to the exception. The Star's story today ends with this quote from Senator Joe Harrison:
Harrison said the legislature could consider opening up pension information so the public can see the amount of pension a lawmaker is getting. But if the General Assembly did that, he said, then "everyone's ought to be open."
Perhaps that change should be considered -- change the language in all the PERF laws to read:
Fund records of individual members and membership information are confidential, except for the name and years of service, and pension amount received, of a fund member.

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Law

Indiana Law - How Governor Orr Helped Shape the Indiana Supreme Court

"Orr's vision helped shape state's Supreme Court: Former governor led the charge to give court more say over what cases it hears," reads the headline to this great story topping the front page of the City&State section of today's (3/15/04) Indianapolis Star. Some quotes:

Before Robert D. Orr's appointees helped change the Supreme Court's mission, Indiana's justices spent virtually all of their time churning out decisions in criminal cases that often read like True Detective magazine stories. Criminal appeals choked the court's docket, leaving little time for family law, malpractice claims and other matters affecting ordinary Hoosiers. And the Indiana Constitution required them to rule on each and every one.

Orr, 86, died last week. For more than a decade, he watched with satisfaction as the Supreme Court evolved into a judicial body that could more freely tackle civil litigation. * * *

[T]he Evansville politician's legacy includes shaking up the court in 1985 with the appointment of Randall T. Shepard, then a little-known, 38-year-old Evansville judge. A year later, Orr elevated another whippersnapper to the graying court, Brent E. Dickson, then a 44-year-old Lafayette attorney. Both had sharp legal minds and the desire to make changes.

"Bob Orr was very eager to break up what was seen as an old boys' network," said John Hammond, an Indianapolis attorney and former aide to Orr, the nation's oldest governor while in office from 1981 to 1989.

After Orr pushed hard to ensure Shepard became chief justice in 1987, Shepard charted a different course for the court. The justices began deciding more civil cases and taking more of an interest in long-ignored rights and privileges afforded by the state Constitution. Today, the high court's legal reasoning is widely cited by federal courts and by appellate courts in other states.

Read the story for much more.

Posted by Marcia Oddi on Monday, March 15, 2004
Posted to Indiana Law

Sunday, March 14, 2004

Indiana Decisions - East Chicago Vote Fraud Case Oral Argument Set

The Indiana Supreme Court, in an order issued 3/9/04, has scheduled oral arguments in the East Chicago mayor's election vote-fraud case, Pabey v. Pastrick, for Tuesday, April 13, 2004 at 1:45 p.m. in Fort Wayne, Indiana, in the City Council Chambers of the City-County Building.

(This updates an earlier Indiana Law Blog entry, from Jan. 11, 2004, available here.)

The Munster NWI Times ran this story today, headed "Recount lawyers plan for Supreme Court test: Each camp outlines strategy in East Chicago challenge." Some quotes:

Attorneys George T. Patton Jr. and Bryan H. Babb of the Indianapolis law firm Bose McKinney & Evans LLP will present Pastrick's case before the Supreme Court on April 13 in Fort Wayne.

Patton and Babb contend the rule of law is on their side and the legislative scheme is clear. They say Pabey and Indiana Attorney General Steve Carter are asking the Supreme Court to act outside the purview of their authority in relation to Pabey's allegations of voter fraud.

"Our position is that the Indiana Legislature provides a clear remedy for fraud-based election challenges," Babb said. "The remedy, as correctly determined by the trial court, is found in the election recount statute, not the election contest statute." * * *

Pabey continues to be represented by Merrillville attorney Nathaniel Ruff and Hammond attorney Carmen Fernandez. Indianapolis attorney Bruce Kotzan was retained to argue the case before the Supreme Court. Not surprisingly, Pabey's team has a completely different take on the case.

Fernandez said there are certain ambiguities in the relatively untested election law that may not specifically give the courts the statutory right to order new elections. However, she believes the courts have the inherent authority to take such action.

She disagrees that the recount commission is the only authoritative body with the power to toss out votes, either on a precinct-by-precinct basis or in totality, based on proof of fraud. "There has to be a remedy for fraud," she said. "The courts have an inherent right to do things the Legislature failed to provide for." * * *

Attorney General Carter's brief filed with the court recently asks the Supreme Court to consider a special election in East Chicago on the basis that "rampant fraud occurred and the citizens deserve an uncorrupted election." Carter contends that if the Supreme Court doesn't have the authority to call a special election, voters essentially have no remedy in the case.

Note: As this April 13th oral argument will not take place in the State House, but rather in Fort Wayne, it is not yet clear whether it will be available for viewing online.

Posted by Marcia Oddi on Sunday, March 14, 2004
Posted to Indiana Decisions

Indiana Law - More on PERF Privacy and the Star's editorial

The Indianapolis Star editorial last week on "PERF privacy" (see the March 11 Indiana Law Blog entry here, or simply scroll down) caused me to wonder why the push to keep PERF records confidential, other than protecting the obvious such as Social Security numbers. After all, state employee and public official salaries are matters of public record, and retirement amounts are calculated based upon amount earned and years of service.

This story today in the Munster NW Indiana Times, titled "Prison doesn't deter pensions: Lake County's corruption icons still manage to retire with benefits," gives an indication of why access to this information is important, but also raises more questions. Some quotes from the story:

It is likely icons of past public corruption in Lake County and their families are living off state pensions, or soon will be.

Indiana law guarantees retirement benefits to former officials who also are ex-convicts if they worked enough years in office.

Leisa Julian, general counsel for the Indiana Public Employee Retirement Fund, said state law does not permit her agency to revoke a member's retirement plan.

However, PERF officials refused Freedom of Information requests by The Times to disclose individual records showing how much it pays Lake County officials convicted of lining their pockets within the last two decades and who now are at or approaching retirement age. * * *

Indiana once had a provision to stop benefit payments if the public employee or official was convicted of a crime, but that was changed in 1978.

The state will seize a public employee's contributions and benefits to repay any money stolen from his public employer, but PERF doesn't disclose any individual's restitution records.

State law not only protects wayward public officials retirement packages, but also shields it from public view. PERF may only disclose the names of pension plan members and their years of service.

That last paragraph caused me to go back and reread the Star editorial from last week ("Our position is: The legislature's bid to close public employee pension records to public scrutiny deserves a veto") and the bill, HEA 1285, that was the subject of the Star's position. My findings after a line-by-line review of the bill and the current law:
SEC. 2. Amends IC 2-3.5-3-4, re legislative retirement, to provide that "(f) Legislators' retirement system records of individual participants and participants' information are confidential, except for the name and years of service of a retirement system participant."

SEC. 3. Amends IC 5-10-5.5-3, re excise police and conservation officers' retirement, to provide that "Records of individual participants in the retirement plan created by this chapter and participants' information are confidential, except for the name and years of service of a retirement plan participant.

SEC. 4-7. Similar amendments in Title 33, Courts & Court Officers.

SEC. 8. Similar amendment to IC 36-8-8-5, re 1977 police and fire pensions.

The point? The state employees' PERF and teachers' PERF law already contains the confidentiality provision, at IC 5-10.2-2-17. It was inserted in 2001. Good idea or bad, HEA 1285 brings the legislative retirement law and other remaining laws in line with Sec. 17, which provides:
Fund records of individual members and membership information are confidential, except for the name and years of service of a fund member. * * *
As added by P.L.246-2001, SEC.3.
The Munster NWI Times has it right in its article today (and shows why restricting access to this information is not a good thing); and it appears the Indianapolis Star got it partially wrong in its editorial last week.

PL 246-2001, passed as SEA 107 in the 2001 session, added the confidentiality provision as part of a 21-page pension bill authored by Senators Harrison and Craycraft. (An interesting side-note is that SEC. 2 of the bill, now found at IC 5-10.2-2-16, appears to permit members of the PERF Board to participate in the board's meetings via conference call or computer.)

[I'm going to try to track down the Public Access Counselor (PAC) opinion that, according to the Star editorial, states that the law does not stand in the way of a review of PERF records. As noted in the earlier post, PAC opinions since September of last year have not been made available online, in contrast to the earlier practice.]

[Update] Two more stories from the NWI Times today add background to the convicted pensioneers' story quoted above. Some quotes from this story, headlined "Law extends veil of secrecy over state pension system:"

The state is resisting efforts to shine a light on its public pension system. And Gov. Joseph Kernan may soon further restrict access to such information if he signs legislation adopted last months by the Indiana General Assembly. Numerous media and public access groups last week urged Kernan to ensure more public access into the scandal-ridden Public Employees Retirement Fund and veto a bill that would further extend the veil of secrecy over an agency with $10 billion in public assets.

The Times entered that fray 10 weeks ago with requests under the Freedom of Information Act and the Access to Public Records Act to disclose whether the fund is paying pensions to former Lake County officials convicted of using their public offices to line their pockets dating back to the 1980s and '90s. Leisa Julian, general counsel for the fund, replied last month that state law exempted those records from public disclosure. "We must deny your request," she wrote The Times. The Times made a second request under the Freedom of Information Act last month to divulge whether any of 19 convicted former officials were even fund members and, if so, their years of service.

Julian failed to comply within seven days as the law requires, despite being informed by Michael Hurst, Indiana's public-access counselor, that names and years of service are public documents. She provided the information only last week after The Times threatened to sue and demand the award of attorney's fees. The governor was unwilling to intervene or meet with The Times to discuss the matter. [emphasis added]

This story also answers the question of why HEA 1285 would be retroactive to last September: "The law would be retroactive to last September, thwarting an effort by Indianapolis television station WTHR, which requested a copy of the state pension fund's computerized database to investigate purported inequalities." [Or does it? Remember, HEA 1285 applies to legislators, excise policy and judges. State employees' and teachers records' have had the same safeguards as proposed in HEA 1285 since 2001.]

The final NWI Times PERF story today recounts PERF's recent history of scandals alongside the legislative moves for further protection of PERF records from public scrutiny.

Posted by Marcia Oddi on Sunday, March 14, 2004
Posted to Indiana Law

Indiana Law - More on electronic voting in Indiana, and Elsewhere

Thursday the Indiana Law Blog posted an entry (access it here) headed "State election commission deals with problematic voting software," including this quote from an Indianapolis Star story:

The Indiana Election Commission voted late Wednesday to let four counties use illegal voting software after hearing desperate appeals by county clerks who feared primary election disasters if they didn't get help.
This morning I have discovered that Indianapolis WISHTV's I-Team 8 has done a number of stories on electronic voting in Indiana, all of which are posted on an excellent webpage titled "Will Your Vote count?" A sample from a story dated March 11th:
What began as an I-Team 8 investigation into voting technology got hot late Wednesday night. On the grill: Election Systems and Software (ES&S), the maker of touch-screen voting machines used in Indiana and across the nation. * * * They had come all the way from Omaha with apologies. We at ES&S made the mistake of loading the wrong version of firmware on their units, said Rob McGinnis, ES&S. A version of embedded computer code used by Johnson, Henry and Wayne Counties in November was actually illegal because it had not been approved by the state. * * * Three of the panicked clerks wanted to re-use the illegal software they used in November. A fourth clerk with brand-new machines, Vandergurgh County's Marsha Abell, was ready to throw in the towel and return her federal reimbursement money to the state. I have my check in my folder and I'm willing to give it back to the state and use my punchcards, she said. Bailing you guys out is just beyond distasteful for me, said Burdick. The state did bail them out. With reservations, the commission approved use of the illegal software for the May primary. I don't want any county or the state to be out any more time or effort because of the condition ES&S has put everybody in and I think this is time to put up or shut up, said Long. The solution is temporary. ***
And here are stories from the Richmond Palladium-Item (Wayne County) and the Edinburgh Courier (Johnson County) on the Indiana Election Commission meeting March 10th.

[Update] The lead NY Times editorial today is titled "Florida as the next Florida." The first paragraph:

As Floridians went to the polls last Tuesday, Glenda Hood, Katherine Harris's successor as secretary of state, assured the nation that Florida's voting system would not break down this year the way it did in 2000. Florida now has "the very best" technology available, she declared on CNN. "And I do feel that it's a great disservice to create the feeling that there's a problem when there is not." Hours later, results in Bay County showed that with more than 60 percent of precincts reporting, Richard Gephardt, who long before had pulled out of the presidential race, was beating John Kerry by two to one. "I'm devastated," the county's top election official said, promising a recount of his county's 19,000 votes.
The Times also has a special web page devoted to its series on electronic voting and other election issues, "Making Votes Count." Access it here.

Posted by Marcia Oddi on Sunday, March 14, 2004
Posted to Indiana Law

Friday, March 12, 2004

Indiana Decisions - One Supreme Court and Several Court of Appeals Opinions Posted Today

Clifton J. Jackson v. State of Indiana (IndSCt 3/11/04) [Criminal Law & Procedure]
Dickson, Justice

Defendant Clifton J. Jackson appeals from the denial of his motion to correct sentence, which alleged that the abstract of judgment did not properly credit his sentence with both time served and credit time. Applying the principles of Robinson v. State, ___ N.E.2d ___ (Ind. 2004), we affirm the trial court. A motion to correct sentence may not be used to challenge entries or omissions in an abstract of judgment.

Franklin E. Patterson v. Daniel W. Dykes (3/12/04 IndCtApp) [Election Law; Constitutional Law]
Riley, Judge

At the outset, we note that we have not previously had the opportunity to consider the effect of a Pardon on the eligibility of a candidate for public office, when the Pardon is granted subsequent to the election. The instant appeal is taken from the trial courts entry of summary judgment in favor of Dykes on April 9, 2003. At the time of the trial courts order, Patterson had a Petition for Clemency pending, as it was not granted until August of 2003. Consequently, the issue before us is whether the pendency of Pattersons Petition for Clemency raised a genuine issue of material fact that makes the trial courts grant of summary judgment inappropriate. * * *

Relevant portions of Indiana Code section 3-8-1-5(b) provide: [a] person is disqualified from holding or being a candidate for an elected office if the person has been convicted of a felony. The record shows that, in 1974, Patterson was convicted of theft, a Class D felony. Thus, pursuant to I.C. 3-8-1-5(b), he was disqualified from being a candidate for the Madison County Council seat. Nevertheless, Patterson ran for the office and won by a majority of votes. However, as a convicted felon, he is disqualified from holding the office. Under this review, we must affirm the trial courts grant of summary judgment in favor of Dykes, as Patterson raised no genuine issue of material fact to prevent the trial courts grant of summary judgment as a matter of law. * * *

Nonetheless, Patterson argues that the Pardon he received from the late Governor Frank OBannon on August 14, 2003, retroactively removes his felony conviction, thereby restoring his eligibility and victory as a candidate for the Madison County Council seat for District 2. In support of his contention, Patterson relies on Kelley v. State, 204 Ind. 612, 185 N.E. 453 (Ind. 1933), which adopted the rule set forth by the U.S. Supreme Court in Ex Parte Garland, 71 U.S. 333, 380-81 (1866), as follows:

A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
However, we find Pattersons argument misplaced. * * * Furthermore, as part of our consideration, we note that allowing a Pardon obtained after an election to qualify an officeholder-elect retroactively would, for all intents and purposes, be a judicial sanction for otherwise ineligible persons to sidestep our states statutory requirements for political candidacy. We hold that such an action would be a manifest violation of public policy. * * *

Our determination above requires us to determine further whether the trial court erred in ordering the incumbent Dykes to hold over until the next general election of the council seat for Madison County Council, District 2. Dykes agrees with the trial court that he is the proper party to hold over in the Madison County Council seat, District 2, pursuant to Article 15, Section 3 of the Indiana Constitution, which provides as follows:

Whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean, that such officer shall hold his office for such term, and until his successor shall have been elected and qualified.
* * * We find no error in the trial courts conclusion of law ordering Dykes to hold over in the Madison County Council, District 2 council seat until the next general election for that office
[Note: Access the April 11, 2003 Indiana Law Blog write-up of the Madision County Superior Court ruling here; use your browser back key to return. (Unfortunately the links to the newspaper stories are not longer active.)]

[Update 3/13/04] Here is today's brief Indianapolis Star write-up of the ruling, headlined "Court rules felon ineligible for office despite pardon."

Phoenix Natural Resources Inc. v. Orville Messmer, et al. (3/12/04 IndCtApp) [Torts]
Bailey, Judge

Here, the evidence reveals that Phoenix, via its predecessor PV Mining, applied for and received permission to build a temporary bridge and approach road in a floodplain over the Patoka River. Obtaining the Construction permit did not elevate or change the character of the improvements to something other than an obstruction in the Patoka River floodway. Therefore, Phoenix remains liable under IC 14-28-1-20 for any obstruction, whether it is the Kessner Bridge, approach road, or debris accumulated thereunder. The Construction Permit, by its express terms, does not immunize Phoenix from liability for the effects of [the] project upon the safety of life and property of others. The fact that Phoenix did not foresee that a flood, caused by rainfall, might arise in a flood plain allowing for the culverts underneath the Kessner Bridge to collect debris, likewise, does not relieve it of liability, nor does it provide Phoenix with an excuse or justification for violating Indiana Code Section 14-28-1-20. As such, the trial court properly omitted the clause relating to excuse or justification in Instruction Three. For the foregoing reasons, we affirm the trial courts judgment in favor of Farmers.
Scot and Kathy Burke v. Blachly, Tabor, Bozik & Hartman (11/26/03 IndCtApp) [Attorney/Client]

Posted by Marcia Oddi on Friday, March 12, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer List for Week Ending March 12, 2004

Here is the Indiana Supreme Court's transfer list for the week ending March 12, 2004.

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

Posted by Marcia Oddi on Friday, March 12, 2004
Posted to Indiana Transfer Lists

Law - More on Multi-State Anti-Crime Databases

A Feb. 23th Indiana Law Blog entry was headed "The Future is Now: Chicago Police Create Massive Relational Database." You may access it here (or simply scroll down). I recalled the entry when I read this AP story in the LA Times today, titled: "2 More States Turn Against Massive Anticrime Database." But this is a different massive database. . . Some quotes from the LA Times story:

New York and Wisconsin are the latest states to pull out of an anticrime database program that civil libertarians say endangers citizens' privacy rights.

Five states remain involved in Matrix out of about a dozen that had signed up to share criminal, prison and vehicle information with one another and cross-reference the data with privately held databases. * * *

Known formally as Multistate Anti-Terrorism Information Exchange, Matrix links government records with up to 20 billion records in databases held by Seisint Inc. in Boca Raton, Fla.

The Seisint records include details on property, boats and Internet domain names that people own, their address history, utility connections, bankruptcies, liens and business filings, according to an August report by the Georgia state Office of Homeland Security. * * *

New York started questioning Matrix when several other states dropped out because of privacy or cost concerns, Rasic said. Alabama, California, Colorado, Georgia, Louisiana, Kentucky, Oregon, South Carolina, Texas, Utah and West Virginia have left or declined to join after considering it.

And here is an AP story dated Oct. 21, 2003 reporting that: "Georgia will not join a sweeping crime database that tracks personal details of even law-abiding citizens, Gov. Sonny Perdue decided Tuesday, citing cost and privacy concerns."

Here is the home of the MATRIX database; here is a map showing the remaining participants (NY was still listed when I checked it).

[Update 3/15/04] Wired News has this story today titled "Wisconsin, New York Unplug Matrix." And the NY Times has this lengthy story titled "Privacy Fears Erode Support for a Network to Fight Crime."

Posted by Marcia Oddi on Friday, March 12, 2004
Posted to General Law Related

Administrative Law - More on electronic rulemaking

An Indiana Law Blog entry on Feb. 11th (available here) discussed the federal government's move to electronic rulemaking.

Now a law professor at New York Law School, Beth Simone Noveck, has written a major (124-page) paper titled "The Electronic Revolution in Rulemaking." Read the abstract and access the paper here. Some quotes from the abstract:

Informal rulemaking is about to be transformed by the silent revolution of E-Government, the widespread incorporation of web-based technology in the public sector. * * * E-rulemaking augurs the end of autonomous agency practice and the beginning of centralization through automation. According to current administration plans, notice-and-comment rulemaking will take place at one website under the direction of the Office of Management and Budget. This E-rulemaking Initiative is perhaps the most far-reaching such governmental transformation ever effected. At the same time, this radical overhaul is taking place without without regard for how it will impact the right of citizens to participate. This Article focuses on participation in rulemaking and how technology is likely to change it.

Simply putting notice and comment on-line makes the cost of speech cheaper. This only opens the floodgates to a quantity of undifferentiated public input - notice and spam. Nor does the mere right to participate ensure successful democratic practice. * * *

[Thanks to Larry Solum at the great Legal Theory Blog for the link.]

Posted by Marcia Oddi on Friday, March 12, 2004
Posted to Administrative Law & Decisions

Thursday, March 11, 2004

Indiana Decisions - More Rulings from the Supreme and Appeals Courts

Wayne A. Peters and Helen Peters v. Donald Forster (3/11/04 IndSCt) [Torts]
Rucker, Justice

Sustaining injury after slipping on a ramp attached to a home that he was visiting, Wayne Peters sued the contractor who installed the ramp. The trial court granted summary judgment in the contractors favor on grounds that the acceptance rule precluded liability. On review the Court of Appeals reversed relying on an exception to the rule. Today we grant transfer and join those jurisdictions that have abandoned what has been described as an outmoded relic. In so doing we reverse the judgment of the trial court. * * *

Conclusion. The trial court entered summary judgment in favor of Forster on grounds he owed no duty to Peters based on the acceptance rule. Today we abandon the rule in favor of traditional principles of negligence. As such we conclude Forster owed Peters a duty of reasonable care. Because in this case neither breach of duty nor proximate cause can be determined as a matter of law, summary disposition is inappropriate. We therefore reverse the judgment of the trial court.

Julee Schlosser et al. v. Rock Industries/State of Indiana (3/11/04 IndSCt) [Torts]
Rucker, Justice
Based on the acceptance rule the trial court granted summary judgment in an action arising out of an automobile collision. In an opinion handed down today we abandoned the rule. See Peters v. Forster, ___ N.E.2d ___, No. 42S01-0301-CV-24 (Ind. 2004). We therefore grant transfer and reverse the judgment of the trial court.
Anna King, et al. v. Eric C. Ebrens, et al (3/11/04 IndCtApp) [Property, Real Estate]
Najam, Judge
The dispositive substantive issue presented is whether the Homeowners, who do not own property in the Don Smith Subdivision, have standing to enforce the restrictive covenant in the Plat that prohibits the Ebrens from erecting a pole barn. The Homeowners assert that they have standing on two grounds. First, they point out that the Homeowners Deeds contain substantially the same restrictive covenants as those contained in the Plat of the Don Smith Subdivision, and according to covenant number 18, such restrictions may only be modified, or an exception made thereto, if 80% of the owners of similarly-restricted land agree to the modification. Stated differently, the Homeowners allege that they have standing to enforce the covenant because their property is similarly-restricted to the Eberns. The Homeowners also contend that they have standing because all of the parties lots were sold by a common grantor, the Smiths, who had a common scheme or plan for development, which created mutual rights among all of the grantees, not just those grantees who own lots within the Don Smith Subdivision. The Ebrens counter that the Homeowners lack standing because they do not own property in the Don Smith Subdivision. We address their arguments in turn. * * *

Here, although the Homeowners Deeds and the Plat of the Don Smith Subdivision share the same restrictive covenants, the undisputed designated evidence establishes that the Smiths did not develop their entire 101-tract of land as a single contemporaneous unit. Rather, they first sold lots to the Homeowners piecemeal and then subsequently platted the Don Smith Subdivision. While the evidence shows a common scheme or plan for the Don Smith Subdivision, we cannot conclude that the Smiths had a common scheme or plan for their entire 101-acre tract, nor for the property that fronted Spaeth or Reservoir Roads. Indeed, following the holding in Rooney, we hold that the Smiths did not have a general plan of development for the property that fronted on Spaeth and Reservoir Roads because they sold and developed that land not as a single unit but, at first, in separate lots and, later, by way of a subdivision. Without a general plan of development, the Homeowners, who do not own lots within the Don Smith Subdivision, do not have standing to enforce the restrictive covenants contained in the Plat against the Ebrens. Thus, the trial court properly granted summary judgment for the Ebrens.

May, J. concurs; Baker, J. dissents with separate opinion:
I respectfully dissent from the majoritys determination that Anna King, William H. Stuckey, and Crystal Stuckey (Homeowners) do not have standing to enforce the restrictive covenants contained in the Plat against the Ebrens. In my view, Corner v. Mills makes it clear that a general scheme or plan of a development exists when the circumstances and facts of the case, including the language of the deeds and the grantors actions, reveal an intent by them to create such a plan or scheme. 650 N.E.2d 712, 715 (Ind. Ct. App. 1995). It is apparent to me that the evidence, when viewed in the light most favorable to the Homeowners, reveals such an intent on the part of Donald Smith. * * *
Jason L. Inlow, et al. v. Henderson, Daily, Withrow & Devoe (3/11/04 IndCtApp) [Procedure; Attorney's Fees]

Indiana Insurance Company v. Patricia S. Dreiman, et al. (3/11/04 IndCtApp) [Insurance]
Najam, J. "We address a single dispositive issue, namely, whether the trial court erred when it construed the term 'premises' to include a public roadway. We reverse."
In sum, the motor vehicle exclusion applies to injuries arising from the use of motorized land vehicles off of the insured location, which includes premises used in conjunction with the farm. The plain and ordinary meaning of the term premises does not encompass a public roadway. As such, the accident on Black Road did not occur on the insured location, and the motor vehicle exclusion under the Dreimans policy applies. We reverse the trial courts entry of summary judgment in favor of the Dreimans, and we hold that Indiana Insurance is entitled to summary judgment in this declaratory judgment action as a matter of law.
Timothy Jarrett v. State of Indiana (3/11/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Thursday, March 11, 2004
Posted to Indiana Decisions

Former Indiana Governor Robert D. Orr Dies at 86

The IndyStar.com site is reporting: "Former Indiana Gov. Robert D. Orr, the consummate gentleman and Indiana's elder statesman, died unexpectedly Wednesday following outpatient kidney surgery, former aides and associates said. Orr, who overhauled the state's education system and ended political party control of motor vehicle licensing, died at Indiana University Medical Center at 9:17 p.m., said Mark Lubbers, his former press secretary. * * * "He was a tremendous mentor for a young person," recalled John Hammond. "At the time he ran for his second term, he probably had one of the youngest staffs in the country. I'd get calls at midnight and 1 in the morning. He wore all of us out, and we were 40 years his junior." Much more here.

I am very proud to add that I am one of the many who worked for Governor Orr.

Indiana Chief Justice Randall Shepard issued this statement this morning:

I feel a weighty sadness about losing such a friend, but somehow it feels wrong to weep over a life so well lived.

Bob Orr believed in Indiana, and his vision about what Indiana needed for its future had been vindicated over and over. He thought the state needed a great leap forward in education, and pressed us to confront the challenge of a globalizing economy. Its hard to imagine where Indiana would be today if he hadnt spurred the state into action on both fronts.

He also transformed the individual lives of a great many people, including me, by being the very model of a decent servant of others and by giving us opportunities in life wed never dreamed we would have. As I go further along in life, my list of heroes gets shorter, but Bob Orr has always been one of them.

Chief Justice Shepard, formerly of Evansville, is a long-time friend of the late Gov. Orr. Both Chief Justice Shepard and Associate Justice Brent Dickson were appointed to the Supreme Court by Gov. Orr. Chief Justice Shepard was appointed to the Court in 1985 and Justice Dickson was appointed in 1986.

Posted by Marcia Oddi on Thursday, March 11, 2004
Posted to General News

Environment - Indiana Landfills in the News Today

Two interesting stories today on Indiana landfills.

This story, from the Fort Wayne Journal Gazette, reports on the former I.J. Recycling site, which cost over $10 million and 17 years to clean up. The cleaned-up property has now been appraised at $525,000. The following history of the site is of interest, particularly in light of the Evansville Superfund stories earlier this week (scroll down to read them):

Once home to Wayne Milk Products Co-Op, in 1980 it was occupied by I.J. Recycling, which processed industrial wastes until 1986, when a fire permanently closed the plant. The U.S. Environmental Protection Agency discovered 3,000 barrels of hazardous waste there, declared the land a superfund site and spent about $8 million cleaning it up.

When the owners declared bankruptcy, abandoned the property and failed to pay property taxes, Allen County took over the land and discovered a Pandora's box of nasty surprises left after the EPA cleanup.

The site still held barrels of hazardous waste and thousands of cubic yards of contaminated soil. There were asbestos-filled warehouses that had to be torn down. An elevator shaft was filled with toxic stormwater that had to be pumped out.

Eventually, the county spent more than $2 million to finish the 17-year process of cleaning up the site.

Finally, in January the county received notice from the state that all cleanup requirements had been met, clearing it to be sold.

The land cannot be used for homes, recreational facilities or wells [i.e. it has deed restrictions], but with its location, officials say it is prime for commercial development. They hope the sale will offset some of the money they spent cleaning up the land.

The second story is about a proposed landfill, that Porter County is fighting. The Indiana Law Blog reported on this Feb. 5, with a story from the NW Indiana Times that began: "Porter County's commissioners on Tuesday gave their support to the hiring of an Indianapolis firm to help prepare the county's case against the proposed landfill in Porter Township." Today the Gary Post Tribune has this story (read it now, the Post Tribune does not archive) that begins:
The fight against the proposed landfill in Porter Township has not been cheap. To what degree Porter County Council members will find out at its Tuesday, March 23, meeting.

But records obtained by the Post-Tribune indicate that an initial bill from Indianapolis-based law firm Sommer Barnard Ackerson dated Feb. 18 will total $13,800. And that bill is from a firm that county officials said was mainly hired in case an appeal is filed.

The story continues with "a few itemized billings."

Posted by Marcia Oddi on Thursday, March 11, 2004
Posted to Environmental Issues

Biotech - Mammals' ovaries may produce new eggs throughout life

An amazing story today in Nature. The lead:

Scientists have found hints that mammals' ovaries produce new eggs throughout life, a finding that might herald new treatments for infertility and the menopause.

The discovery challenges a decades-old dogma that women and other mammals are born with a limited supply of immature eggs. These were thought to be expended by decay, death or ovulation until, at menopause, the supply was exhausted.

Now US researchers have unearthed evidence in a mouse's ovary of stem cells that churn out fresh eggs during its reproductive years. This suggests ovaries have more in common with the male's testicular sperm factory than had been thought.

"We are still reeling," says Jonathan Tilly of Harvard Medical School, Boston, who led the Nature study.

Here is the NY Times coverage, with this great lead:
Challenging the bedrock verity of mammalian biology that a female's eggs, like private reserve wines, are made one time only, in limited numbers, and are apt to turn to vinegar if left on the shelf too long, researchers have found startling evidence that the ovaries may instead be replenished with new eggs throughout a female's reproductive career.
And this from the Washington Post:
For more than half a century, textbooks have taught that female mammals -- be they mice, cows or women -- are born with all the eggs they will ever have.

The result is one of the great sexual disparities: Males, which make fresh sperm daily, can sire children at virtually any age, whereas females gradually deplete their limited supply of eggs to the ticking of the biological clock.

Now Harvard researchers have come to the radical conclusion that female mice produce a constant stream of new egg cells as adults -- challenging a central dogma of reproductive biology and raising the heretical possibility that women, too, clandestinely produce fresh eggs for at least the first half of life.

Posted by Marcia Oddi on Thursday, March 11, 2004
Posted to Biotech

Indiana Law - State election commission deals with problematic voting software

"The Indiana Election Commission voted late Wednesday to let four counties use illegal voting software after hearing desperate appeals by county clerks who feared primary election disasters if they didn't get help." That is the lead to this story today in the Indianapolis Star. More:

The problem came because ES&S had sold the counties new touch-screen voting software that has not been certified for use in Indiana. Three of the counties -- Johnson, Wayne and Henry -- used the illegal voting system in the November 2003 election.
Here is the agenda from the meeting of the Election Commission.

Posted by Marcia Oddi on Thursday, March 11, 2004
Posted to Indiana Law

Indiana Law - Questions raised about pension privacy measure

This editorial today in the Indianapolis Star is titled "Putting the glare on PERF 'privacy'." It begins:

A little-noticed amendment to a pension bill passed during the just-concluded legislative session could cost taxpayers dearly by locking the door to public records.

Gov. Joe Kernan should veto House Bill 1285 and urge the legislature to honestly address the issues of privacy and accountability that the measure purports to resolve.

On the surface, the bill seems innocent enough. It requires a feasibility study of early withdrawals from the Public Employees Retirement Fund in cases of dire need. The rub, however, is an amendment, offered by Sen. Joseph Harrison, R-Attica, that would declare all retirement fund members' records -- including those of legislators -- confidential.

The amendment is a backlash to efforts by WTHR (Channel 13) to review PERF records in the course of a probe into possible mishandling of those funds. Media investigations in other states have turned up public pension fraud that has poured millions into undeserving pockets, and PERF is fair game given its management scandals and a criminal conviction within the past year.

But when Channel 13 asked to review PERF records, and state Public Access Counselor Michael Hurst opined that the law did not stand in the way, the legislature slammed the door, as it has done routinely on public information issues in recent years.

The bill at issue, HEA 1285, passed the House with this digest:
Early withdrawal of PERF contributions. Authorizes a member of the public employees' retirement fund (PERF), before retirement, to withdraw voluntary contributions to the member's annuity savings account when the member demonstrates an immediate and great financial need.
Per the Senate amendments, that language was changed to a study committee and the provisions referenced in the Star editorial were inserted. Here is HEA 1285 as passed and eligible for the Governor's review. Interestingly, the provisions making the records confidential are retroactive to September 1, 2003.

Note: A check of the advisory opinions issued by the Indiana Public Access Counselor indicates that NO advisory opinions have been issued since September 16, 2003, although it looks like about half-a-dozen were issued per month before that date.

[Update] I'm told the Public Access Counselor indeed may have issued advisory opinions since September 16, 2003, but that they have not been publicly posted. Interesting.

Posted by Marcia Oddi on Thursday, March 11, 2004
Posted to Indiana Law

Wednesday, March 10, 2004

Environment - Buried Tanker Car Issue Resurfaces

Remember the "railroad tanker car full of hazardous waste" buried near Gary, reported here in the Indiana Law Blog last October? Per the Indianapolis Star story at the time (no longer available): "The owner of a recycling business buried a tanker containing flammable waste near the Gary/Chicago Airport and later threatened to kill someone he thought had tipped off environmental officials, authorities said."

Well, today U.S. EPA is reporting here in its weekly enforcement wrap-up:

Donald L. Vacendak of Hammond, Ind., was sentenced on Feb. 27 to serve 37 months in prison followed by three years supervised release, after being convicted of obstructing justice by knowingly threatening to kill a government informant. The informant had provided information alleging Vacendak violated the Resource Conservation and Recovery Act by disposing of an ignitable hazardous waste in a buried railroad tank car in Gary, Ind. Such allegations are investigated because if determined to be true, there could be serious potential fire and ground water contamination hazards. The case was investigated by the Chicago Area Office of EPA's Criminal Investigation Division; the Bureau of Alcohol, Tobacco and Firearms; the Hammond, Indiana Police Department; and the Indiana Department of Environmental Management with technical assistance provided by EPA's National Enforcement Investigations Center. The case was prosecuted by the U.S. Attorney's Office in Hammond.

Posted by Marcia Oddi on Wednesday, March 10, 2004
Posted to Environmental Issues

Indiana Decisions - Four Supreme Court, Three Appeals Court, and one Tax Court Opinions Posted Today

Jesse E. Robinson v. State of Indiana (3/10/04 IndSCt) [Criminal Law & Procedure]
Dickson, Justice

We hold that a motion to correct sentence is available only to correct sentencing errors clear from the face of the judgment; that such motion is not equivalent to a petition for post-conviction relief and may be filed at any time; that a trial court's sentencing judgment must report not only the number of days confined while imprisoned before sentence but also must separately designate the credit time earned for the said period of confinement; that such trial court determination is subject to modification by the Department of Corrections pursuant to statute; that judgments reporting pre-sentence confinement time but omitting credit time will be presumed to designate credit time days equal to days of pre-sentence confinement; and that a motion to correct sentence is not available to challenge entries or omissions in an abstract of judgment. We affirm the trial court's denial of the defendant's motion to correct sentence.
Alphonso Washington v. State of Indiana (3/10/04 IndSCt) [Criminal Law & Procedure]
Dickson, Justice
As we hold today in Robinson v. State, ___ N.E.2d ___ (Ind. 2004), a motion to correct sentence pursuant to Indiana Code 35-38-1-1 asserting a claim that is susceptible to determination from the face of the sentencing judgment is not in the nature of a post-conviction proceeding and is not subject to the requirement for prior authorization in P-C R. 1(2). Id. at ___ (slip opin. at 5). The defendant's appeal is not subject to dismissal on this grounds.
Samuel I. Crow v. State of Indiana (3/10/04 IndSCt) [Criminal Law & Procedure]
Dickson, Justice
The State argues that the trial court does not have jurisdiction to grant credit time for time spent in pre-sentence confinement. We reject this argument today in Robinson, noting that the trial court has a statutory obligation to include this determination in its sentencing judgment, but acknowledging that the Department of Correction may thereafter modify such pre-sentence credit time determination. Id. at ___ (slip opin. at 11). We reverse the judgment of the trial court denying the defendant's motion to correct sentence and remand for correction in accordance with this opinion.
Floyd F. Laycock v. State of Indiana, Teodoro V. Garcia v. State of Indiana and James F. Glass, Sr. v. State of Indiana (3/10/04 IndSCt) [Criminal Law & Procedure]
Dickson, Justice
Each of these appeals is grounded upon the claim that the trial court's entries on the Department of Correction's abstract of judgment form violated Indiana Code 35-38-3-2(a) which requires the sentencing judgment to include the time spent in pre-sentence confinement and also the amount of credit time earned for said confinement. Each defendant's appeal complains only of this omission in the abstract of judgment and does not allege any omission in the trial court's sentencing judgment. Entries in the abstract of judgment may not be challenged by a motion to correct sentence. Robinson v. State, ___ N.E.2d at ___ (slip opinion at 14-15). For this reason, the trial courts did not err in rejecting the motion to correct sentence filed by each of these defendants. The judgment of the trial court is affirmed in each case.

Ronald W. Frazier v. James A. Mellowitz (3/10/04 IndCtApp) [Contracts]

Donna Poppe v. James Jabaay, et al. (3/10/04 IndCtApp) [Family Law]
Riley, Judge

Per the opinion: "Based on the foregoing, we conclude that the trial court abused its discretion by accepting Cecilias offer to purchase and refinance the marital residence thereby rescinding the Contract to Purchase Real Estate entered into by the court appointed commissioner and Poppe. We further find that the trial court abused its discretion by limiting Poppes damages to attorneys fees and costs, instead of awarding her specific performance. Reversed and remanded with instructions."

Hyundai Motor America, Inc. v. Sandra Goodin (3/10/04 IndCtApp) [Contracts]

Southern Indiana Gas and Electric Company, et al. v. Indiana Department of State Revenue (3/9/04 IndTaxCt) [Supp. Net Income Tax]
Fisher, J.

Per the opinion:

The issue for the Court to decide is whether, for purposes of calculating Indiana supplemental net income tax liability, the Petitioners sales of natural gas to out-of-state purchasers should be excluded from the formula for computing the fraction of their business income to be allocated to Indiana. * * *

This Court cannot say that the Petitioners sales at issue meet the requirements of Indiana Administrative Code title 45, rule 3.1-1-53(6). As such, Petitioners sales at issue are not allocable to Indiana, and are therefore not required to be included in the numerator of the formula for computing the Petitioners supplemental net income tax liability.*

Conclusion. For the foregoing reasons, the Departments final determination is REVERSED.

*The Petitioners raised one other argument: if this Court were to determine that the sales at issue were to be included in the numerator of the formula, then it must determine whether Indiana Administrative Code title 45, rule 3.1-1-53(6) is invalid because it exceeds the scope of its enabling statute as well as violates the Commerce Clause of the United States Constitution. Given the Courts decision that the subject sales are not required to be included in the formula, those questions are now moot. See Bremen Pub. Schools v. Varab, 496 N.E.2d 125, 127 (Ind. Ct. App. 1986) (stating that issues become moot when they are no longer live or when the parties lack a legally cognizable interest in the outcome of their resolution); Ind. Wholesale Wine & Liquor Co., Inc. v. State of Indiana ex rel. Ind. Alcoholic Beverage Commn, 695 N.E.2d 99, 108 (Ind. 1998) (stating if a case can be decided on either of two grounds, one involving a constitutional question, and the other a question of statutory (or regulatory) construction, court will decide only the latter).

Posted by Marcia Oddi on Wednesday, March 10, 2004
Posted to Indiana Decisions

Indiana Law - First "State of the Judiciary" address from Adams County

"Adams Circuit Court Judge Fred A. Schurger, speaking on behalf of himself and Adams Superior Court Judge James A. Heimann and their staffs, delivered the first State of the Judiciary address to a meeting on Monday of the Decatur Chamber of Commerce." So reads the lead to this story published yesterday in the Decatur Daily Democrat.

Posted by Marcia Oddi on Wednesday, March 10, 2004
Posted to Indiana Law

Environment - Follow-ups to some recent Indiana stories

It looks like Evansville is finding out being posted as a Supersite site is not necessarily "a good thing," according to this story today in the Evansville Courier & Press. Recall that yesterday (scroll down) city officials hailed the designation.

An editorial tiled "Regulation of CAFOs crucial for Indiana" in today's Muncie Star Press appears to be the wrap-up to its series on confined feeding in Indiana. Some quotes:

There are few solid answers for what to do about CAFOs, as seen in a recent series of Star Press articles. A dairy CAFO that wants to expand in Henry County has created serious issues for county officials. And a proposed dairy CAFO in Randolph County is causing headaches for county government and divisions among farmers and other residents.

This much is true about CAFOs: Because of the growth of the industry, the remedy is in regulation and enforcement, not prevention. Regardless of the change they bring to agricultural production, they cannot be denied strictly because they might be a nuisance to some. They must be allowed a chance to co-exist, with other farming operations.

It would be easier, for local governments, if all farms were the small family variety that are pretty much unregulated. But livestock in Indiana, nearly a $3-billion-a-year industry, is headed in a different direction. It is getting larger all the time. * * *

County governments can - and should - site CAFOs through their zoning authority. Regulating the location of CAFOs is no different than that of landfills, industries or power plants.

The odor from CAFOs can also be regulated through local ordinance. Although this is difficult, it will become increasingly important as the residential land-use pattern of farmland continues to change.

Counties should also consider taking on an inspection responsibility, at least in conjunction with IDEM. The state agency now inspects to make sure CAFOs don't intrude in floodways, on soils with a high water table, and are complying with manure disposal and application requirements.

If county health or zoning departments can assist the inspection process - at least where local laws permit - it would be a safety aid as well as a comfort to wary residents.

[Update] IDEM issued this press release today titled: "Hoosier livestock producers offered video class to get up to speed on new concentrated animal feeding rule." A quote:
On March 24, farmers who manage large livestock herds will be subject to the intricacies of the National Pollutant Discharge Elimination System (NPDES) General Permit Rule for Concentrated Animal Feeding Operations (CAFOs), administered by the Indiana Department of Environmental Management (IDEM).

Helping IDEM explain how to follow the rule - as well as translate the acronyms that come with it - will be Purdue University educators and representatives of the Natural Resources Conservation Service (NRCS).

To reach the 510 farmers affected by the rule, the guest lecturers will use Purdue's video-conference technology and reach audiences in seven communities across the state.

IDEM also issued a press release today announcing its new web page "designed to provide information regarding agency rule actions."

Posted by Marcia Oddi on Wednesday, March 10, 2004
Posted to Environmental Issues

Law - Ex-CIA spy specializes in suing the government

This feature today in the Washington Post is headlined: "Counter Intelligence: Looking to Sue the CIA? First Find Janine Brookner." Some quotes:

Brookner was a CIA spy for 23 years. Then, in the early 1990s, her superiors accused her of being a drunken "sexual provocateur." She denied the charges and sued the CIA for sex discrimination in a case that garnered widespread publicity. And she won: The agency paid her $410,000.

She used the money to go to law school. Now, she's a Washington lawyer who specializes in suing the government, particularly the CIA. And she has just published "Piercing the Veil of Secrecy," a book for folks who want to fight intelligence agencies. "It basically tells people that they can sue the CIA -- and how to do it," she says

Now 62, Brookner has lived a life that seems like something out of a movie -- and someday it might be. After Brookner's case became famous, Paramount Pictures optioned her story.

That's only the beginning of this lengthy and interesting article.

Posted by Marcia Oddi on Wednesday, March 10, 2004
Posted to General Law Related

Tuesday, March 09, 2004

Indiana Decisions - One Supreme Court and Five Appeals Court Decisions Posted Today

Worman Enterprises, Inc. v. The Boone County Solid Waste Management District (3/9/04 IndSCt) [Administrative Law; Constitutional Law]
Boehm, Justice

Per the opinion:

We hold that the board of a solid waste management district is not subject to the strict prohibition on ex parte communications that applies to a court or an administrative agency acting in a purely adjudicatory role. * * *

On several occasions while Wormans permit was pending, members of the Board communicated with public citizens about the permit. For example, one member of the Board spoke with citizens who called her home with specific complaints about Wormans facility. Citizens also approached that member at the post office and grocery store to discuss the Worman facility. Another member viewed the site through binoculars from a neighbors home. Worman argues that these communications between members of the Board and private citizens regarding its permit application constituted impermissible ex parte communications that prejudiced the Board against Wormans application and violated Wormans due process rights. The trial court disagreed and granted the Districts motion for summary judgment. The Court of Appeals reversed, concluding that the Boards action was adjudicatory in nature and that there was a genuine issue of material fact whether the Board made these communications with the public known and whether those communications influenced the permitting process. * * *

Worman contends that Boards permitting process was adjudicatory and therefore the conversations between members of the Board and the public constituted ex parte communications. Worman posits that whether the Board was biased by these communications is an issue of fact that must be reserved for at trial.

Wormans argument proceeds from a misunderstanding of the permit process. Ex parte communications are impermissible in adjudicatory settings, but they are widely accepted and even expected in legislative settings. We think that the Board is not an adjudicatory body for these purposes and its permitting process is not analogous to the adjudicatory function of a court. The Board is a local agency composed mostly of locally elected officials. I.C. 13-21-3-5. By statute, the Board is made up of officials from the county executive, the county fiscal body, the executives of cities in the District, and members of the legislative bodies of cities in the District. Id. These officials, by the nature of their executive or legislative positions, are expected to be open and respond to the concerns of their constituents. * * *

Here, although the permitting process has some aspects of adjudication, it is not purely adjudicatory. Rather, the permitting process has characteristics of both legislative and adjudicatory roles, and is most analogous to licensing, a hybrid function properly subject to less restrictive processes than court or administrative adjudication. [citation omitted] District members are local officials who are expected to receive citizen input in a less formalized manner than a court proceeding. See footnote The statute does not purport to convert this Board into judges subject to judicial standards, and includes no restriction on their contacts. Accordingly, we do not find the permitting process fatally flawed by these contacts with the public or independent investigations by members. If the legislature chooses, it may impose more restrictions on the Districts permitting process. In the absence of a legislative declaration that Board members are not to engage in ex parte communications, we believe the Board is sufficiently distinct in composition and function that it is not subject to the prohibitions against ex parte communications that apply to administrative agencies under AOPA and to courts under the Code of Judicial Conduct. * * *

Worman has failed to raise a genuine issue of material fact supporting its claim that its Equal Protection or Equal Privileges rights have been violated. Conclusion. We affirm the trial courts grant of summary judgment.

Citizens Action Coalition of Indiana, Inc. v. Northern Indiana Public Service Company, et al. (3/9/04 IndCtApp) [Public Utilities]

Per the opinion: "The Citizens Action Coalition of Indiana (CAC) appeals the final order (42150 Order) of the Indiana Utility Regulatory Commission (Commission) relating to the rates and charges of Northern Indiana Public Service Company (NIPSCO). We affirm."

Building Materials Manufacturing Corporation v. T & B Structural Systems, Inc. (3/9/04 IndCtApp) [Torts]

Per the opinion: "This evidence is insufficient to create a genuine issue of material fact regarding whether TBSS assumed a duty of reasonable care to GAFMC, the extent of such duty, and whether the duty was breached. As such, we determine that, as a matter of law, the record contains insufficient evidence to establish a duty. Absent a duty, GAFMC may not maintain a negligence action against TBSS. Accordingly, the trial court properly granted summary judgment to TBSS."

T.M. v. State of Indiana (3/9/04 IndCtApp) [Criminal Law & Procedure]
Staton, Senior Judge

Deals with IC 35-42-4-3, the child molesting statute, and the mistake of fact defense. "We conclude as did the court in [Lechner v. State, 715 N.E.2d 1285, (Ind. App. 1999), trans. denied] that 'the legislatures failure to modify the age at which the defense becomes available to a defendant was in the nature of an oversight or scriveners error and could not be reflective of a legislative intent to permit the defense only when the actor believes the victim is 16 or older, when the statute itself does not prohibit the activity with a child aged 14 to 16.'"

Teresa Theobald v. Gregory Theobald (3/9/04 IndCtApp) [Family Law]
Baker, Judge

Per the majority opinion: "Appellant-petitioner Teresa Theobald (Teresa) appeals the trial courts ruling in the dissolution of her marriage to appellee-respondent Gregory Theobald (Gregory). Specifically, she argues that the trial court erred in admitting a home study report because she was not given the opportunity to cross-examine the person who prepared the report. Finding that Teresa waived her right to conduct such a cross-examination, we affirm the decision of the trial court."

Bailey, J. concurs. May, J., dissents with opinion, which begins: "As the majority notes, the trial court requested a home study pursuant to Indiana Code 31-17-2-10, which also permits counsel to 'call for cross-examination of any professional personnel consulted by the court.' Ind. Code 31-17-2-10(b). The majority holds Teresa waived her right to cross-examine the preparer of the report. Because I do not believe her statement at the hearing amounted to a waiver of that right, I respectfully dissent."

K.M. v. State of Indiana (3/9/04 IndCtApp) [Criminal Law & Procedure]
Robertson, Senior Judge

Per the opinion:

This interlocutory appeal arises from the juvenile courts waiver of K.M. to adult criminal court. We affirm. * * *

In conclusion we find as a matter of law that evidence of prior delinquency adjudications and/or informal dispositions was not a prerequisite to the trial courts decision that K.M. was beyond rehabilitation, and thus, that jurisdiction of K.M.s case should be waived to adult court. The trial court complied with the requirements of Ind. Code 31-30-3-2 and found, for the reasons stated in the waiver order, that K.M. was beyond rehabilitation for the purposes of waiving him to adult court.

Posted by Marcia Oddi on Tuesday, March 09, 2004
Posted to Indiana Decisions

Law - Cinergy "Settlement " May End Up in Court Here

Two AP stories today on "Cinergy, feds sparring over clean-air deal." This one, posted on the IndyStar.com website, reports:

CINCINNATI -- Cinergy Corp. said it's preparing to go to trial to defend itself against a government air pollution lawsuit, because the utility may not be able to finish power plant upgrades in Ohio and Indiana under a settlement it proposed in late 2000. * * *

The Clinton administration sued Cinergy, American Electric Power Co. of Columbus, Ohio, and FirstEnergy Corp. in 1999, accusing the utilities of rebuilding power plants without installing state-of-the-art controls required by the Clean Air Act to keep polluting gases and soot from reaching the atmosphere.

Only Cinergy proposed a tentative settlement that could have averted trial, Schaeffer said. Cinergy promised to install the equipment at locations it would determine through environmental assessments. The EPA estimated the settlement would cost Cinergy $1.4 billion.

The company has completed about $1 billion of the work, spokesman Steve Brash said Monday. But the government in the past few months has demanded that Cinergy build additional "scrubbers" for sulfur dioxide that would cost another $400 million, he said. "We're not willing to do that," Brash said. Cinergy's customers would ultimately pay for any settlement, he said.

The lawsuit is scheduled for trial in August 2005 in U.S. District Court in Indianapolis.

This one, bylined by AP reporter John Nolan, appears in today's Louisville Courier Journal and reports:
Cinergy Corp. says it's not willing to meet federal regulators' demands to install more equipment to control air pollution at its power plants in Ohio and Indiana including the Gallagher plant in Floyd County.

The demands were added to a 3-year-old agreement between the company on one side and the federal government and additional parties on the other. If the deal falls apart, the company might have to defend itself against a 1999 lawsuit the Clinton administration initiated over alleged clean-air violations at coal-fired generating plants. * * *

The government filed similar lawsuits against American Electric Power Co. of Columbus, Ohio, and FirstEnergy Corp., but only Cinergy proposed a settlement that could have averted a trial, said Schaeffer, a former attorney for the Environmental Protection Agency.

The lawsuits accuse the utilities of rebuilding coal-fired plants without installing state-of-the-art controls on gaseous pollution and soot, devices that the government contends are required by the Clean Air Act.

Posted by Marcia Oddi on Tuesday, March 09, 2004
Posted to General Law Related

Indiana Law - More on BMV Scandals

"BMV's arresting new development" is the catchy heading to this editorial today in the Indianapolis Star. Some quotes:

A news report that 10 percent of Bureau of Motor Vehicles employees in Marion County have criminal arrest records adds detail to an already ugly picture of the state agency and lends still more urgency to reforms that have been recommended and promised.

WTHR (Channel 13), The Indianapolis Star's newsgathering partner, combed the county's law enforcement database after four BMV employees were arrested last year for allegedly trafficking in fraudulent documents involving foreign nationals.

The station found that at least 61 of the county's 624 BMV workers had been arrested, half of them on charges, such as theft and deception, that would bear on their sensitive jobs. Eight employees were convicted of felonies while 11 were convicted of misdemeanors or made deals to avoid trial. For an agency handling the public's money to the tune of 10 million transactions a year, 10 percent is not a performance rate to shoot for in this category.

The Star ran this news story yesterday on the BMV criminal arrest records. The original WTHR 13 Eyewitness News account of its investigation, dated March 3, may be found here. A folowup, dated March 8, is available here.

The Indiana Law Blog's Feb. 20, 2004 entry on the BMV scandal may be accessed here .

Posted by Marcia Oddi on Tuesday, March 09, 2004
Posted to Indiana Law

Indiana Law - Interesting Dispute Over Paying for Lake County's Tax Reassessment

The only thing clear is that, as offered by one of the attorneys quoted in the story, "This could take years to resolve." As reported here in the NW Indiana Times today:

Lake County taxpayers will not have to pay Arthur Andersen LLP's disputed $10.5 million bill anytime soon, thanks to some maneuvering by county lawyers. A Marion County judge last week halted Andersen's civil lawsuit seeking payment on the defunct accounting firm's canceled contract for the 2002 reassessment.

Although Andersen sued Indiana's Department of Local Government Finance, and not Lake County directly, taxpayers here still are potentially on the hook for some of those millions because the reassessment law requires the county to pay for it. That state case now could be delayed for years while the county's counterattack -- a federal lawsuit filed last month claiming Andersen's contract is invalid because the reassessment was unconstitutional -- winds its way through the courts.

Why is it said to be unconstitutional? According to the story:
The federal suit challenges the state law that required only Lake County to hire an outside firm to conduct the reassessment. Because Lake County was the only one of Indiana's 92 counties mandated to hire an outside firm to conduct the reassessment, the law amounts to "special legislation," according to the federal lawsuit. The lawsuit also claims the tax-reform state law violates the federal Voting Rights Act because it strips residents of the right to have their property assessed by the officials they voted into office to do just that. If the federal court rules in the county's favor, Andersen's contract would be dissolved and the company could be paid only for work it actually did, [County Council attorney Gerald] Bishop said.
For months, Bishop and other county attorneys, Indiana tax officials and Andersen have been trying to reach a deal over the millions in claims and late fees Andersen said it is owed.

Although former state finance Commissioner Jon Laramore signed off on $9 million in invoices two years ago, the state and the county said the company didn't do much work and is not owed the money.

"This could take years to go through the courts," Bishop said Friday. "We are willing to pay them for what they did, and at some point they are going to have to show us (proof of work.)"

Posted by Marcia Oddi on Tuesday, March 09, 2004
Posted to Indiana Law

Indiana Law - More on Indiana Sentencing

Yesterday (scroll down) we posted a story from the NW Indiana Times on "Truth in Sentencing in Indiana." Today the Times has this story, headlined "Accused gunman seeks to limit sentence - CHESTERTON: Attorney for Chesterton man says state law caps sentence at 10 years." The lead:

A man who was shot during a confrontation with police last year hopes to significantly reduce the sentence he faces.

Dale Sterling Jr., of Chesterton, filed a motion Monday arguing state law caps his maximum potential sentence at 10 years, not the 26 years he could face for the seven felony charges he faces.

The claim is based on a state law that prohibits the penalties for multiple charges in a single offense from running consecutively, unless the offense is one of a few specified violent crimes, said Sterling's defense attorney, Larry Rogers.

The violent crimes named in the law include murder, rape and robbery, Rogers said. Sterling is charged with battery, which is not among the violent acts listed in the law, Rogers said.

Posted by Marcia Oddi on Tuesday, March 09, 2004
Posted to Indiana Law

Environment - Evansville site nominated to Superfund list

"The U.S. EPA has proposed adding 45 blocks of the Jacobsville neighborhood to its Superfund National Priorities List of hazardous waste sites." This according to a story today in the Evansville Courier & Press. More:

About 500 people live in the affected area, which EPA says has dangerously high levels of lead in the soil. The neighborhood includes Deaconess Hospital and several other businesses.

Cleanup efforts won't begin soon. EPA officials said they will now study cleanup options and develop cost estimates. Those options will be presented
to the public during a comment period. * * *

The neighborhood is the former home of the Evansville Plating Works, which was an environmental problem for the city for years before it was razed by EPA last year.

But the Indiana Department of Environmental Management, in a 2001 assessment of the neighborhood, did not designate Evansville Plating as a source of the soil contamination.

The state agency identified four other possible contributors, all of them factories closed for decades.

They include:

Blount Plow Works, which operated from the 1880s to the 1940s as a manufacturer of horse-driven plows. The plow works operated a foundry. Buehler's Buy Low, 200 N. Main St., now stands where the foundry once operated.

Advance Stove Works, which operated from the turn of the century to the 1950s. It was a manufacturer of stoves and also operated a foundry. That site is now occupied by Benthall Brothers at Read and Division streets. Newton-Kelsay, which operated from the turn of the century to the 1950s. That site manufactured hames, part of a harness for animals. McDonald's, 20 N. Main St., now stands on the site. Sharpes Shot Works, which operated from 1878 to an unknown date, manufactured lead shot for guns. That site is now owned by Deaconess Hospital.

IDEM believes soil in the surrounding area became contaminated through airborne emissions from those four plants. Superfund responses are broken into two different types, according to Mick Hans, Superfund spokesman for Region Five, which includes Indiana. The cleanup of Evansville Plating was an emergency response to an imminent threat, he said. Hans said because the site still existed, it needed immediate response. The proposed cleanup of the surrounding blocks would be a longer-term and more expensive response aimed at the whole neighborhood.

Here is the 8-page Proposed National Priorities List posted in the Monday, March 8, 2004 Federal Register (45 FR 10647-10653). The new additions begin on the bottom of the 7th page.

See also this related story in today's NY Times that begins:

Citing budgetary concerns, the Bush administration has proposed new toxic waste sites for the Superfund program at a much slower rate than previous administrations, a practice criticized by state environmental officials who say it masks the true demand for cleanup in the country.

Posted by Marcia Oddi on Tuesday, March 09, 2004
Posted to Environmental Issues

Monday, March 08, 2004

Environment - More on confined feeding

"Farm Bureau defends CAFOs" is the headline to this story today in the Muncie Star Press, reporting that the "Indiana Farm Bureau defended concentrated animal feeding operations (CAFOs) during a recent seminar broadcast to local government officials throughout the state. County commissioners and planners from Henry, Madison and Randolph counties, where dairy CAFOs have generated controversy, watched the seminar in Muncie, one of 10 sites where it was shown." Some quotes:

Regarding perceived water pollution caused by CAFOs, [Chad Frahm, an attorney for Farm Bureau] said "the question is, what is the relative impact" of CAFOs on water quality versus the impact of other sources of pollution: septic systems, combined sewer overflows in cities and towns, fertilization of residential and commercial lawns, row-crop agriculture, and small, unregulated livestock operations.

CAFOs are heavily regulated by state and federal laws, Frahm said. Those laws require CAFOs to obtain construction and operating permits. They don't allow CAFOs in floodways and on soils with a high water table. They restrict the land application of manure. They require emergency spill response plans, extensive record keeping, and inspections. The Farm Bureau lawyer said state and federal laws did not regulate odor or increased truck traffic from CAFOs.

County government can site CAFOs through their zoning authority, according to Ted Feitshans, an attorney specializing in agricultural and environmental law at North Carolina State University. "That zoning authority may determine the location of new [CAFOs]," Feitshans said. "And through a process of amortization, it may restrict and eventually remove existing [CAFOs]."

CAFOs are regulated federally by the Clean Water Act. The act includes provisions for citizens to bring lawsuits against CAFOs, Frahm said.

In a story from another midwestern state, the DesMoines Register reports here that "Iowa environmental regulators are getting ready to fine as many as 600 hog-confinement operators who are up to five years late filing required plans showing how they'll keep manure out of lakes and rivers."

Posted by Marcia Oddi on Monday, March 08, 2004
Posted to Environmental Issues

Indiana Decisions - Porter county breath test decision overrule noted

Today's NW Indiana Times reports here: "Appellate court says breath test can be used against Lake Station man." The reference is to the case of State v. Molnar (2/13/04), briefly summarized here on 2/13/04 in the Indiana Law Blog. Some quotes:

The accused in his case, Joseph Molnar of Lake Station, was chewing tobacco when he was stopped by police Feb. 20, 2003. He argued that although he spit out the tobacco prior to 20 minutes before the breath test, particles of the tobacco remained in his mouth, thus invalidating the test results. His blood-alcohol concentration was found to be 0.12, which exceeds the 0.08 standard of intoxication in Indiana.

The Indiana Court of Appeals reversed [Porter Superior Court Judge David] Chidester's ruling, saying he failed to properly interpret the breath test guidelines.

The guidelines say in part the accused "must not have put any foreign substance in his or her mouth ... within 20 minutes to the time a breath sample is taken," wrote the court.

"There is no dispute here that Molnar did not place any foreign substance in his mouth within 20 minutes of the test," said the court. "The regulation makes no provision for residue remaining from matter removed from the subject's mouth before the 20-minute period begins and does not invalidate the breath test results due to residue remaining in a subject's mouth."

Posted by Marcia Oddi on Monday, March 08, 2004
Posted to Indiana Decisions

Indiana Law - Truth in Sentencing in Indiana?

This story today in the NW Indiana Times, headlined "Little truth in sentencing in Indiana: Offenders eligible to serve half their time or less," points to differences in the sentencing of criminals in Indiana, as compared to the federal system and some other states. Some quotes:

Just more than half the states have adopted federal guidelines requiring violent offenders to serve at least 85 percent of their prison sentences, but the proposal died before the Indiana Senate nine years ago.

The Indiana Department of Correction then opposed the legislation because of concerns about the cost of housing offenders longer and the loss of a good-time credit as a tool to keep inmates in line, said state Rep. Ralph Ayres, R-Chesterton, who authored the proposed legislation.

Adopting the federal guidelines also would contribute to the problem of overcrowding, which is forcing the state to house inmates at county jails and at facilities in other states, department spokeswoman Pam Pattison said.

The push for the federal regulations in 1995 did result in an increase in the sentence for murder from 50 to 55 years, Ayres said.

The proposal did not surface during the current legislative session, but Ayres said he supports the concept known as "truth in sentencing."

Posted by Marcia Oddi on Monday, March 08, 2004
Posted to Indiana Law

Sunday, March 07, 2004

Biotech - Microfluidics Is Revolutionizing Biology; More

"Microfluidics Is Revolutionizing Biology by Shrinking Test Devices to Lilliputian Dimensions. Leading the Charge Is Caltech Physicist Stephen Quake." Some quotes from this story in today's LA Times Magazine:

Since producing that first chip in 1999, Quake's lab has churned out a series of increasingly complex micro-scale chips that are replacing conventional full-size machines. One can sort cells, an essential piece of lab equipment that makes it easier to track the results of each experiment, while another chip can replicate snippets of DNA, giving scientists more genetic material to work with. A third device, called a flux stabilizer, is a prototype for an implanted drug-delivery system that would continuously dispense medication deep inside the body, and eliminate the need for injections or remembering to take pills.

Currently the lab is working on a DNA sequencer on a chip that would replace today's $300,000 dishwasher-sized machines. Also under development is a method of automating the growing of cell cultures, an essential part of biological research. This would "liberate researchers from the tyranny of pipetting," says Quake, a time-consuming process akin to feeding a litter of kittens with an eyedropper around the clock. * * *

But it was the device called the multiplexer, which was showcased in an October 2002 cover story in Science, that catapulted his team ahead of established rivals. Quake and his collaborators unveiled a chip that some experts consider a rudimentary version of a biological microprocessor. The one-inch-square grid is a gleaming triple-layered matrix containing 2,056 microvalves and 256 chambers to mix chemicals, and it can run tens of thousands of chemical reactions every hour. * * *

"A lot of people had made chips with single pumps, and valves, but Steve put it all together and made systems that could do really complicated processes," says David J. Beebe, a microfluidics expert and biomedical engineer at the University of Wisconsin in Madison. "He is really the leader in taking this silicone technology and matching it with appropriate applications, and demonstrating that this could work. Before, microfluidics was limited to electrical engineers who knew how to use silicon and glass. But his work using more flexible materials really opened up the field."

[Update 3/8/04] This report in the Boston Globe today, titled "Nanotech being seen as next big thing: States, colleges jockey for research dollars," begins:
Not so long ago, almost every state wanted a "silicon" of some sort, a forest, a prairie, or even just an alley. Next, their longings turned to "bio." Today, everybody wants "nano." Nanotechnology is the latest rage among states and regional groups looking to revive battered economies. Nanotech research centers are sprouting on university campuses from Atlanta to Phoenix to Fargo, N.D., and states are spending hundreds of millions of dollars to get in on the ground floor of what is alternately described as the "next big thing" and "next industrial revolution."
Meanwhile, the Washington Post reports here that Loudoun County, Virginia is hoping its medical research campus will trigger a boom. The Chicago Tribune reports here that "Seattle hopes seeding nurtures biotech powerhouse."Some quotes:
Since the dot-com bust in the late 1990s, many cities and states are scrambling to attract biotech businesses that bring well-paying jobs and lucrative tax revenues. Seattle has a formidable advantage in that cutthroat competition. Its persuasive statistics include a well-educated population: nearly 47 percent of the residents have at least a college degree, nearly twice the national average, according to 2000 U.S. census figures.

"This kind of economic opportunity, in this neighborhood, is really something I think any mayor in America would give their right arm for," said Mayor Greg Nickels, an advocate of the redevelopment project. Born in Chicago, Nickels moved to Seattle in the 1960s when Boeing recruited his father.

And a front-page story in the Indianapolis Star today, available here, is headed: "[Indiana's] Image of intolerance may cool job climate: High-tech sector might be wary of state, study suggests."

Posted by Marcia Oddi on Sunday, March 07, 2004
Posted to Biotech

Law - Head of UCLA's "Willed Body Program" Arrested for Theft

"Arrest Made in Cadaver Inquiry: Investigating the alleged sale of corpses and parts, UCLA says it plans to seek grand theft charges against the director of its willed body program." So reads the headline to this story today from the LA Times front page. Some quotes:

An embalmer hired by UCLA's medical school to keep better track of cadavers donated for study and research was arrested Saturday on suspicion of grand theft, part of an investigation by campus police into allegations that he and another. * * *

The university's willed body program, the oldest in the country, receives about 175 donated bodies every year and has a waiting list of more than 11,000 people who have agreed to donate their bodies for use by researchers and medical students. The school has put a guard on the seventh floor of UCLA Medical Center, where cadavers worth thousands of dollars to biomedical firms are stored in a large freezer.

Reid was named director in 1997, a year after the school was sued by the families of cadaver donors for allegedly failing to properly dispose of their remains. Families have accused UCLA, for example, of putting ashes from cremated bodies into dumpsters taken to a landfill and then lying to loved ones. * * *

Former Gov. George Deukmejian agreed Friday to oversee reform of UCLA's willed body program. He said he was contacted last week by attorneys for UCLA and the UC Board of Regents. "The university and the leaders there at the medical school were very, very concerned and troubled about what they had just recently discovered," Deukmejian said Saturday.

A second LA Times story, "Profit Drives Illegal Trade in Body Parts," begins:
The trade in human body parts is a seller's market. Pharmaceutical companies buy everything from fingernails to tendons to use for research. Medical instrument firms conduct training seminars for doctors, filling anatomy laboratories or hotel event rooms with trays of knees or heads that surgeons can use to acquaint themselves with new devices and techniques.

Then there are at least 50 surgical products made from human skin, bones and heart valves that are used in procedures ranging from lip enhancements to fracture repairs. Bodies also end up as crash-test dummies and are used in other product-safety research.

Who knew?

Posted by Marcia Oddi on Sunday, March 07, 2004
Posted to General Law Related

Indiana Decisions - Attorney Disciplinary Rulings

As of last September, the Indiana Supreme Court began issuing its attorney disciplinary decisions as orders rather than as opinions. That will explain why the last Indiana Law Blog posting on attorney disciplinary rulings was in August of 2003, when we posted an entry headed Keller & Keller? Lets settle this one, that covered not only the Keller & Keller opinion, but three other disciplinary rulings.

I was unaware of the change until recently when I happened on to the rulings for the past six months, accessible via the Supreme Court Orders index page. The disciplinary orders include orders with the following captions: (1) Order Finding Misconduct and Imposing Discipline; (2) Order Approving Conditional Agreement and Imposing Discipline; (3) Order Approving Affidavit of Resignation; (4) Order Imposing Identical Reciprocal Discipline; (5) Judgment for Respondent; (6) Order Finding Contempt. They exclude orders imposing private reprimand.

Here is the link to the Orders of Final Resolution in Attorney Disciplinary Cases issued so far in 2004. There are seven.

Here is the link to the Orders of Final Resolution in Attorney Disciplinary Cases issued from September 23, 2003 through the end of 2003. There are fifteen.

Posted by Marcia Oddi on Sunday, March 07, 2004
Posted to Indiana Decisions

Environment - Behind-the-scenes look at Admiistration's Development of Energy Policy

This fascinating "back-story," -- "How Industry Won the Battle of Pollution Control at E.P.A." -- was published on the front page of Saturday's NY Times and continues on to fill an entire inside page ("print" version here). Be sure to check out the Multimedia Graphic titled "Power Donors" in the righthand column of the story. Here is some of the intro:

Thirty years after the first Earth Day, the incoming administration was still confronting power-plant smokestacks spewing fumes. The policy questions were arcane, involving strategies to control polluting particles. At stake, though, were environmental risks to human health and the nation's ability to produce cheap energy, as well as decisions about how the most polluting industries would be monitored for decades to come.

For operators of some coal-fired plants, the stakes were more tangible. Dozens of plants were facing lawsuits over air pollution brought by the Clinton administration and several northeastern states including New Jersey under Mrs. Whitman before she became head of the E.P.A. The industry, fearing billions of dollars in new costs, set about to undo the suits.

One of the most important decisions was Mr. Bush's reversal of a campaign promise to regulate emissions of carbon dioxide, a gas that many scientists say contributes to global warming. The administration also has proposed looser standards for emissions of mercury a highly toxic pollutant than President Bill Clinton had sought. The most protracted fight concerned the administration's decision to issue new rules that substantially reduced the requirements for utilities to build pollution controls when modernizing their plants. The final policy shift may ultimately help the coal-plant operators shed the lawsuits.

The struggle within the administration, in skirmishes between Cabinet officers and volleys of memorandums, showed how the White House has transformed domestic policy through regulatory revision, rather than more contentious congressional debate.

Posted by Marcia Oddi on Sunday, March 07, 2004
Posted to Environmental Issues

Saturday, March 06, 2004

Environment - Interesting stories today in the Indianapolis Star; also a review so far of environmental legislation from this session

An editorial today in the Indianapolis Star points to "the positive results of [the White River] fish kill disaster." The editorial concludes:

The biggest danger facing the river -- and the major water supply for Indianapolis -- is development along the floodplain and destruction of wetlands in its watershed.

It almost took destruction of this wonderful natural resource for those living and working along it to become aware of the river's value. Now that the headlines are history and the litigation has been resolved, it will take vigilance and perseverance to protect it.

Meanwhile, in the news section of the paper is a story headlined "Couple say they may sue over septic permit denial." A quote:
County rules prohibit new septic permits in a flood-prone area. The Heltons say those rules deny them the use of the home if they can't fix or replace the septic system. A three-member appeals panel of the Board of Health heard the Heltons' argument in September and denied their request for a permit to build in a flood plain.
Finally, this, in a story about "significant bills the General Assembly sent to the governor" as a result of the just-concluded General Assembly:
House Enrolled Act 1017: Voids an Indiana State Department of Health sewage disposal rule regulating the level of nitrites in groundwater.
HEA 1017, as best I can tell, does much more than that. The enrolled printing (the copy that will be presented to the Governor for his action) is not yet available online, but here is the conference committee report that, according to the General Assembly website, was approved by both houses. Here is the synopsis accompanying the report:
Synopsis: Various environmental matters. Conference committee report for EHB 1017. Prohibits a penalty from being assessed against the owner of an underground storage tank for failure to pay an annual registration fee in connection with the tank that was due before January 1, 2004, if the owner registered the tank before January 1, 2004. Provides that obtaining a National Pollutant Discharge Elimination System (NPDES) permit for a concentrated animal feeding operation (CAFO) meets the approval requirements of IC 13-18-10-1 and 327 IAC 16. Establishes fees to be remitted to the Indiana department of environmental management (IDEM) for general and individual NPDES permits for CAFOs. Prohibits adoption of a rule by the state department of health (ISDH) if the proposed rule applies to onsite sewage systems the nitrate and nitrite numeric criteria included in groundwater quality standards adopted by the water pollution control board. Voids any rule adopted by ISDH to the extent that the rule is adopted for that purpose. Requires IDEM and the ISDH to jointly prepare a report concerning onsite sewage systems and nitrates and nitrites in groundwater. Extends to July 1, 2006, the prohibition against adoption of a new rule by an environmental rulemaking board or adoption of a new policy by IDEM if the new rule or policy would require certain industries to comply with standards of conduct that exceed federal standards. Excepts from the prohibition the adoption of a new rule by the air pollution control board that is necessary to attain or maintain certain air quality standards. (This conference committee report: (1) inserts the contents of SB 22 as it passed the Senate; (2) inserts the contents of SB 152 as it passed the Senate; and (3) inserts the contents of SB 189 as it passed the Senate.)
In addition, this General Assembly overrode the veto of HB 1798 from the 2003 session. Although commonly referred to as "the wetlands bill," the bill (now law) covered a number of other environmental issues. See the earlier Indiana Law Blog writeup here.

Posted by Marcia Oddi on Saturday, March 06, 2004
Posted to Environmental Issues

Friday, March 05, 2004

Law - and interesting: Martha Stewart's Employment Contract with MS Living Omnimedia

Findlaw.com has posted the employment agreement between "Martha Stewart Living Omnimedia, Inc., a Delaware corporation (the "Company"), and Martha Stewart (the "Executive").

Posted by Marcia Oddi on Friday, March 05, 2004
Posted to General Law Related

Not law but interesting - A feature on the practice players for the UConn women's team

A great read today in the NY Times Sports Section, titled "For These Men, Lots of Guts but Little Glory." Some quotes:

"I remember my first day, I was afraid I was going to hurt somebody because they're girls, plus they're famous girls from national television," Mike Harrington, another UConn practice player, said. "Next thing I knew, I was lying on my back. If you don't watch out, these girls will run right over you."

Coaches at most of the country's major Division I women's basketball programs began using male students at least a decade ago. They did it, the coaches say, in search of a higher level of competition for the starters than their female reserves could provide. The men generally have been accomplished high school players who may have been good enough to play at the Division III level in college. * * *

"We have to find guys who are coming for the right reasons," said Bill Gould, an assistant of the women's team at Boston College, who is in charge of the Eagles' male practice players. "They have to understand that nobody we're going to play will try to make an alley-oop dunk, so don't do that in our practice because that's not helping.

"We tell them that this isn't intramurals, so don't swear and don't complain about fouls. We pre-interview to get to know them. If somebody says, `Boy, your team is really hot,' chances are good we wouldn't invite him to practice. This isn't a dating service." * * *

"I love it when one of our guys gives one of the girls a shot in the ribs and pushes her out of the way to get a rebound," UConn Coach Geno Auriemma said. "I've noticed that when the ball goes to the other end, I often see that same guy coming out of the pack with one hand over his eye where he got whacked. I just crack up. It's not about a girl playing a guy, it's about two kids asserting themselves as basketball players."

Some of the men are minicelebrities on their campuses, especially in basketball-mad Connecticut, where local television stations sometimes broadcast snippets of the women's practices.

"We get stopped for autographs," Ryan Murphy, a junior, said. "You try to talk them out of it, but they insist."

In the dorms, practice players are also the oracles for what seems like a natural curiosity of other male students. "Everybody wants to know how good the girls really are," Cofrancesco said. "They say, `Could I take Taurasi?' And I say: `No, you couldn't. Not even close.' "

Posted by Marcia Oddi on Friday, March 05, 2004
Posted to General News

Indiana Decisions - Several Opinions Posted Today

Rick and Areta Nance v. Holy Cross Counseling Group, et al. (3/5/04 IndCtApp) [Torts]

Hilton A. Turner v. City of Kokomo, et al (3/5/04 IndCtApp) [Contracts]

David C. Bucker v. Indiana Department of State Revenue (3/4/04 IndTaxCt) [AGI Tax]

Posted by Marcia Oddi on Friday, March 05, 2004
Posted to Indiana Decisions

Indiana Decisions - Court of Appeals Ruling on Searches During Seat Belt Stops

The Indianapolis Star website today is posting an AP story headlined "Court: No searches with seat belt stop."

Police who stop drivers for seat belt violations cannot legally ask to search their cars if they see no evidence of other crimes, the Indiana Court of Appeals ruled. Officers may not search vehicles in such cases -- even if drivers give their permission -- without violating the state Constitution, a three-judge panel unanimously ruled Wednesday.
The decision referred to is James E. Clark v. State of Indiana (3/3/04 IndCtApp), posted and summarized on the Indiana Law Blog on Wednesday. Access the ILB writeup here, or simply scroll down to the 3/3/04 entries.

Posted by Marcia Oddi on Friday, March 05, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit issues ruling in Indiana Bell v. McCarty

Access the 3/5/04 7th Circuit opinion here. The Court's conclusion:

We AFFIRM the district courts determinations as to tandem reciprocal compensation rates, dark fiber, new combinations of network elements, and packet switching on the grounds, and with the caveats, discussed above. We REVERSE the district courts determination on acceptance testing, reinstating that provision of the interconnection agreement as a valid exercise of state authority preserved
under the Act.

Posted by Marcia Oddi on Friday, March 05, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer List for Week Ending March 5, 2004

Here is the Indiana Supreme Court's transfer list for the week ending March 5, 2004.

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

Posted by Marcia Oddi on Friday, March 05, 2004
Posted to Indiana Transfer Lists

Law - More on DC Circuit's CERCLA ruling this week

Papers today are reporting the important CERCLA ruling (General Electric v. EPA) reported here (or simply scroll down) in the Indiana Law Blog on Tuesday afternoon. As reported here today in the Albany NY Times Union, in a story headlined "Ruling lets GE sue over cleanup: Decision allows company to challenge the Superfund law and the EPA order to dredge the Hudson River, which could delay or stop the project :"

Courts have given companies the right to sue after cleanups are complete, but in the part of the Superfund law under question, Congress sought to preclude suits so that extended legal delays wouldn't jeopardize public health and safety.

That piece of the law violates one of the bases of American jurisprudence, that any individual or institution can go to court if they feel their property is being unfairly taken away, said famed constitutional scholar Lawrence Tribe, a Harvard professor who represented General Electric.

"If GE can be made the target of a government regime that bypasses that most fundamental principle," said Tribe, "than the same thing can be done to you or me."

What GE wants, Tribe claimed, is not necessarily the right to rush to court to overturn an EPA cleanup order. The company hopes instead that if the district court agrees that Superfund orders can be challenged, the EPA will proceed more gingerly, Tribe explained.

An AP story carried in many papers this morning reports:
The EPA has issued more than 1,000 such orders since the Superfund program was created. GE filed a suit challenging the constitutionality of the Superfund law in November 2000, just before the EPA announced a preliminary plan for dredging PCB-contaminated pockets along the upper Hudson River.

The lawsuit claimed the Superfund statute violates due process rights by giving regulators unchecked authority to order costly, intrusive cleanups with no chance at a timely review by the courts.

In its 12-page ruling, the three-judge panel took note of the government's claim that a GE victory in the case "would have the effect of interfering with EPA's ability to issue orders and enforce clean-up operations."

"These concerns cannot lightly be dismissed given the nature of the hazards to health and the environment addressed (by the law)," the panel said. But it said an early court decision on GE's claim would likely remove the possibility of a similar legal delay later. * * *

GE spokesman Mark Behan said the company should be allowed to dispute an EPA Superfund decision early in the bureaucratic process, before it has shelled out millions of dollars.

"Just as every person in America faced with a government order has the right to appeal to an impartial judge, a company faced with an order from the Environmental Protection Agency to undertake a project of unlimited scope and duration has the right to a timely hearing in front of an impartial judge," Behan said.

Or, as stated succinctly in a Wall Street Journal story (paid subscription required):
GE, of Fairfield, Conn., contends the bar violates due process under the Fifth Amendment by presenting it with a dilemma: Either it would be forced to undertake a large and costly cleanup, or it could ignore the order "and risk severe punishment" by the EPA. The agency then could do the cleanup itself and impose triple damages if GE lost the later court challenge.

Posted by Marcia Oddi on Friday, March 05, 2004
Posted to Administrative Law & Decisions | Environmental Issues | General Law Related

Thursday, March 04, 2004

Environment - Four Indiana utilities agree to clean up manufactured gas plant sites

Under voluntary cleanup agreements with IDEM, four Indiana utilities -- PSI Energy, Inc. (Cinergy/PSI), Indiana Gas and Electric Company and Southern Indiana Gas and Electric Company (Vectren), Kokomo Gas and Fuel Company and Northern Indiana Public Service Company (NIPSCO) -- will remediate twenty-one old manufactured gas sites. The sites are located in Aurora, Franklin, Fort Wayne, Goshen, LaPorte, South Bend, Peru, Plymouth, Rochester, Seymour, Martinsville, New Castle, Jeffersonville, Huntington, Loogootee, Liberty, Washington, Evansville, Vincennes, Princeton and Kokomo. According to IDEM:

Manufactured gas was used as a heating fuel in much of the United States between the mid-1800s and mid-1900's before natural gas became widely used as a heating source. Production of manufactured gas created byproducts or residues, primarily coal tars. The vast majority of these tars were sold for various commercial purposes such as road and street construction, chemical manufacturing and waterproofing structures. On-site storage of these materials has, in some cases, resulted in contamination.

Access the complete press release here.

Posted by Marcia Oddi on Thursday, March 04, 2004
Posted to Environmental Issues

Indiana Decisions - Newly Posted Supreme Court and Court of Appeals Opinions

ISP.com LLC and ISP.net LLC v. David J. Theising, Receiver of IQuest Internet, Inc. (3/4/04 IndSCt) [Contracts; Aribtration]
Boehm, Justice

The plaintiff is David J. Theising, as the receiver of IQuest Internet, Inc. The defendants responded to his complaint with a motion to compel arbitration of the dispute. The motion was based on an arbitration clause in an agreement entered into between the defendants and IQuest before IQuest was in receivership. The trial court refused to compel arbitration and the Court of Appeals affirmed that order on interlocutory appeal. We hold that the arbitration clause is enforceable against the receiver as the successor in interest to IQuest. * * * The order of the trial court denying the motion to compel arbitration is reversed. This case is remanded with instructions to order the plaintiff, ISP.com, LLC and ISP.net, LLC to arbitrate their dispute under section 9.16 of the Asset Purchase Agreement.

David J. Theising, Receiver of IQuest Internet, Inc. v. ISP.com, LLC, ISP.net LLC and IQuest Internet, LLC (3/4/04 IndSCt) [Contracts; Aribtration]
Boehm, Justice

This is an appeal from an order of the Marion Superior Court described in our opinion dated today in ISP.com, LLC v. Theising, __ N.E.2d __ (Ind. 2004) (the Hamilton County case). In this case the Marion Superior Court ordered the parties to arbitrate their dispute, but the Court of Appeals, in an unpublished decision, reversed. We now grant transfer and affirm the trial court.
Sondra L. Ratliff v. Michael K. Ratliff (3/4/04 IndCtApp) [Family Law]

Re: calculation of weekly gross income for child support purposes; partial emancipation; litigation expenses and attorney fees.

John Thomas Sees v. Bank One, Indiana, N.A. (3/4/04 IndCtApp) [Banking]

Amy Bostick v. State of Indiana (3/4/04 IndCtApp) [Criminal Law & Procedure]

In the Matter of Involuntary Termination of Parent-Child Relationship of D.D. (3/4/04 IndCtApp) [Family Law]

Kimberly Johnson v. State of Indiana (3/4/04 IndCtApp) [Criminal Law & Procedure]

Estate of Kelly S. Spry v. Ruth Batey, et al. (3/4/04 IndCtApp) [Estates & Trusts]

Phyllis Gaddis v. Stardust Hills Owners Association, Inc. (3/4/04 IndCtApp) [Contracts]

Posted by Marcia Oddi on Thursday, March 04, 2004
Posted to Indiana Decisions

Indiana Law - 2004 General Assembly Draws to a Close

This General Assembly is drawing to a close; today is reportedly the final day of this session. The online version of the Indianapolis Star reported yesterday on end of the session negotiating in a story that concluded with this:

Meanwhile, House Democrats continued to raise topics that had not cleared either chamber, including a provision to allow Indiana University-Purdue University Indianapolis to buy and renovate a hotel and conference center.

Senate GOP lawmakers raised concerns about the number of topics House Democrats appear willing to combine in the same bill. The state Constitution limits bills to one subject.

"There may be so many subject matters we're inviting the courts to come in and settle it," Garton said. "And I welcome it."

Some of you may be interested in reading my 29-page 2001 law journal article, "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," available here.) Some quotes:
A law containing more than one subject would appear to be prohibited by the Indiana Constitution. But the last time the Supreme Court of Indiana used the one subject matter limitation to invalidate a law was thirty years ago, in 1971. Although a number of legislative acts have been challenged on the same basis since 1971, including those described above in the Indianapolis Star editorial, none has been held by the Court to violate the one subject matter prohibition.

The direction the Court has taken in recent years is one of reluctance to intervene in the activities of a co-equal branch of government. But is judicial deference the proper response? This paper attempts to answer that question by first examining the genesis of the current constitutional requirement. Although the one subject limitation contained in Article 4, section 19 has been a part of the Indiana Constitution since 1851, there have been three different versions of Article 4, section 19 during that period. Interpretations of Article 4, section 19 by the Indiana Supreme Court led to two constitutional amendments to that provision in the twentieth century, in 1960 and in 1974.

Next, this paper examines the Courts decisions interpreting the 1851 and 1960 versions of the one subject matter limitation. These versions required that an act shall contain but one subject, which shall be expressed in its title. The title-body test the Court applied in many of its holdings involved a parsing of the title of the act to determine whether it was broad enough to encompass all the provisions of the act itself.

Third, this paper examines the Courts decisions since 1974. Although the requirement that the subject of the act be expressed in its title no longer exists in the current version of Article 4, section 19, this paper finds that initially the post-1974 Court holdings continued to rely on the title-body reasoning of earlier decisions. More recently, the Court has adopted the position that the one subject matter limitation is one that the General Assembly itself must police.

Finally, this paper looks at the ramifications of the current Courts hands-off position, concluding that this position of judicial deference to a co-equal branch of government may unfavorably impact both the executive branch and the judiciary itself.

Has anything changed in the past few years? Perhaps. See this Indiana Law Blog entry from June 26, 2003, on the 6/24/03 Indiana Supreme Court decision in Cittadine v. INDOT.

Posted by Marcia Oddi on Thursday, March 04, 2004
Posted to Indiana Law

Wednesday, March 03, 2004

Indiana Decisions - Six Court of Appeals Decisions Posted Today

Sandy Diane Pugh v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure]
May, Judge; NAJAM, J., concurs; BAKER, J., concurring in part and dissenting in part with opinion. From the majority opinion:

Sandy Diane Pugh appeals the trial courts revocation of her probation. On appeal she questions whether the trial court abused its discretion by ordering her to serve two years of her previously suspended sentence. We affirm in part and reverse and remand in part.
Joshua H. Woolley v. Washington Township Small Claims Court (WTSSC) (3/3/04 IndCtApp) [Civil Procedure; Constitutional Law]
Baker, Judge
Woolley contends that the trial court erred in finding that an affidavit signed by Judge Lynda Huppert, then judge of the WTSSC, was not a public record and that Woolley had no substantive relief available to him through the Indiana Access to Public Records Act (APRA). See footnote The WTSCC also asserts that Woolleys action became moot when the federal lawsuit for which the affidavit was prepared was settled and dismissed. Finding that the action is not moot, that the affidavit is not a public record, and that Woolley has no relief available to him, we affirm. * * * Woolley contends that because he originally made an oral request, which was denied, and he renewed that request in writing, which was denied in writing more than seven days later without stating the specific exemption authorizing the withholding of the document, he can substantially prevail by showing that the WTSCC violated the APRA. However, Woolleys arguments stem from the premise that the affidavit at issue is a public record. Only public records are governed by the APRA by the specific language of Indiana Code section 5-14-3-9(a). Because we have determined that it is not a public record, the WTSCC was not required to follow the mandates of the APRA with regard to the timeliness of their response and a reason for denying Woolleys request. Even more compelling, the WTSCC simply does not have a copy of the affidavit. Quite simply, the WTSCC cannot produce what it does not possess. Inasmuch as the affidavit is not a public record and it is impossible for the WTSCC to produce it, the trial court can provide Woolley with no relief. We therefore find that the trial court did not err in finding that Woolley had no relief available to him.

CONCLUSION. In light of the above discussion, we find that this action is not moot. We further find that the APRA does not require and the Indiana constitution prohibits the WTSCC from being compelled to produce the affidavit describing the internal procedures of the court. Finally, we find that Woolley cannot substantially prevail, and thus he has no relief available to him.

Vaughn Hannibal v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure]

"Concluding the marijuana at issue was discovered pursuant to a proper protective sweep and the plain view doctrine permitted the police to seize the marijuana, we affirm."

Thomas Schaeffer v. Atul Kumar (3/3/04 IndCtApp) [Civil Procedure]
May, Judge

Thomas Schaefer appeals a summary judgment for Atul Kumar on Schaefers complaint to set aside Kumars tax deed for a parcel of real estate (the property) located in Lake County. Schaefer raises one issue on appeal, which we expand and restate as: 1) whether the trial court erred in granting summary judgment in favor of Kumar on the basis that Schaefers complaint was barred by a one-year statute of limitation, and 2) whether the grant of summary judgment in favor of Kumar can be affirmed based upon any other theory supported by the designated materials. We affirm.
James E. Clark v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Mathias, Judge
James Clark (Clark) has been charged with Class A misdemeanor possession of marijuana in Johnson Superior Court. He filed a motion to suppress the marijuana found during a search of his vehicle after he was stopped for a seatbelt violation. The trial court denied his motion to suppress. Clark has filed this interlocutory appeal arguing that under Indiana Code section 9-19-10-3 and Article One, Section Eleven of the Indiana Constitution, a law enforcement officer investigating a seatbelt violation is prohibited from requesting and obtaining consent to search a vehicle. Concluding that the trial court abused its discretion when it denied Clarks motion to suppress, we reverse and remand with instructions to grant Clarks motion to suppress.
Curtis Ray Johnican v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Curtis R. Johnican appeals his sentence. In particular, Johnican argues his sentence is erroneous because: (1) the State did not file his habitual offender enhancement within ten days of his omnibus date or show good cause for failing to make a timely filing; (2) the trial court improperly attached his habitual offender enhancement to his conviction for possession of cocaine, which is proscribed by Indiana Code 35-50-2-8(b); and (3) his aggregate sentence exceeds the allowable sentence pursuant to Indiana Code 35-50-1-2(c) because his possession of cocaine was not part of the same criminal episode as his other offenses. We find that the trial court did not err by allowing the State to belatedly file the habitual offender count or by determining that the offenses were part of a single criminal episode. Because we find that the trial court improperly attached the habitual offender count to a conviction ineligible for enhancement, however, we remand for re-sentencing consistent with this opinion.

Posted by Marcia Oddi on Wednesday, March 03, 2004
Posted to Indiana Decisions

Law - Feature on Martha Stewart's Attorney

"In Martha Stewart's Defense, A High-Priced 'Everyman' - Studiously Rumpled Attorney Morvillo Lets the Zingers Fly," reads the headline to this feature today in the Style Section of the Washington Post. A quote:

Balding, with a deep comb-over, plus hunched shoulders, a double chin, and glasses resting low on a bulky nose, Robert G. Morvillo raised his arms in disbelief. All was quiet inside Courtroom 110 of U.S. District Court for the drama of the defense's closing arguments in the Martha Stewart stock-sale conspiracy trial. And Morvillo, for years one of the city's most watched litigators, did not disappoint.
His reputation within New York's legal fraternity is that of an ace litigator with whom only the foolish would relish a fight. It made perfect sense, some in the profession said, that Stewart turned to Morvillo to get her out of the mess of her ImClone Systems stock sale and the federal charges of conspiracy and obstruction of justice it wrought. (The most serious charge, securities fraud, was dismissed last week.)

But Morvillo and Stewart make an odd client-lawyer pair. With the look of an overworked insurance man, he is as rumpled as she is perfectly put together. Something about the 66-year-old Morvillo conjures a gabby New York cabby. Though he is among that cadre of stratospherically high-priced litigators whose clients are headline names, something about him is an "everyman."

"He's certainly not the slickest," says Rick Fischbein, founding partner of Fischbein Badillo Wagner Harding. "Juries always like him. He's not supercilious. He doesn't come across as a slick, sharp attorney. He comes across as a kind of regular guy. And he's a devastating cross-examiner."

Posted by Marcia Oddi on Wednesday, March 03, 2004
Posted to General Law Related

Environment - Louisville reporter wins National Press Foundation award

"C-J reporter wins award for air-pollution series" is the headline of this story today in the Louisville Courier Journal. Some quotes:

James Bruggers, The Courier-Journal's environmental reporter, has won the National Press Foundation's 2003 Thomas L. Stokes Award for his series of stories last year about toxic air pollution in Louisville. * * *

Bruggers conducted an independent analysis of air-monitoring data that had been collected by the University of Louisville for the U.S. Environmental Protection Agency and the West Jefferson County Community Task Force.

The newspaper found 18 chemicals or compounds in Louisville-area air at concentrations that were higher than what local, state and federal environmental regulators considered safe hundreds of times higher at some of the monitors.

The highest readings were in western Louisville near the Rubbertown complex of chemical plants, but unacceptable levels also were found at monitors in Otter Creek Park in Meade County and on UofL's Shelby campus in eastern Jefferson County. * * *

Shortly after the first stories were published, Mayor Jerry Abramson persuaded three companies to pledge voluntary air-pollution reductions. Those companies and a fourth have since put their commitments in writing.

The Louisville Metro Air Pollution Control Board in January adopted a resolution calling for local environmental officials to draw up a new program for regulating toxic emissions one that would go beyond the minimum federal requirements that are now in place.

The EPA has begun full inspections of all 11 Rubbertown companies and has agreed to assist the local air pollution control district in reducing hazardous air pollutants.

Posted by Marcia Oddi on Wednesday, March 03, 2004
Posted to Environmental Issues

Tuesday, March 02, 2004

Environment - Confined Feeding Continues to be an Issue in Municie Paper

More confined feeding stories today in the Muncie Star Press: "Two of six local counties regulate CAFOs," may be found here; "Dairy odor drives neighbors indoors" is here. The Washington Times-Herald has an AP story, also about a Henry County farm: "Flap over dairy farm odor goes to court."

The Columbia City Post & Mail has a story today about spilled milk, and how it is considered an environmentally dangerous substance: "Spilled milk deemed hazardous to the environment."

[Update 3/3/04] IDEM this week asked the Huntington Superior Court to order Johannes DeGroot to reduce his dairy herd by half and to impose strict operational guidelines to avoid future releases of manure to the water. Access the press release here, headed "IDEM asks court to impose fines, severe restrictions on DeGroot Dairy; order farmer to pay state costs, establish spill funds."

Posted by Marcia Oddi on Tuesday, March 02, 2004
Posted to Environmental Issues

Law - DC Circuit Issues Important CERCLA Ruling Today

General Electric v. EPA, decided March 2, 2004. Laurence H. Tribe argued the cause for appellant. With him on the briefs were Benjamin W. Heineman, Jr., Brackett B. Denniston III, Stephen D. Ramsey, Carter G. Phillips, Angus Macbeth, Thomas G. Echikson, and Brian T. Fitzpatrick.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: The General Electric Company appeals the dismissal of its amended complaint alleging that the administrative orders regime of 106, 107(c)(3), and 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606, 9607(c)(3), and 9613(h), violates the Due Process Clause of the Fifth Amendment. The only issue on appeal is whether the district court erred in dismissing the amended complaint for lack of subject matter jurisdiction under 113(h). We hold that the plain text of 113(h) does not bar GEs facial constitutional challenge to CERCLA and accordingly, we reverse and remand the case to the district court. * * *

GE filed suit against the Administrator of EPA and EPA seeking a declaratory judgment that the provisions of CERCLA relating to the unilateral administrative orders regime, namely 106(a), 107(c)(3), and 113(h), are unconstitutional under the Due Process Clause of the Fifth Amendment. GE alleged that the combination of the absence of preenforcement review and massive penalties for noncompliance with a UAO imposes a classic and unconstitutional Hobsons choice: Either do nothing and risk severe punishment without meaningful recourse or comply and wait indefinitely before having any opportunity to be heard on the legality and rationality of the underlying order. EPA moved to dismiss the amended complaint for lack of jurisdiction on the ground that 113(h) postpones judicial review of any action under CERCLA until EPA seeks to enforce its remedial orders in court or the PRP sues to recoup its expenses for undertaking the clean-up. Alternatively, EPA moved for summary judgment on the grounds that there was no violation of due process, and that a facial attack on CERCLA would fail because there were circumstances in which the UAO regime could be applied in a constitutional manner. The district court dismissed GEs amended complaint for lack of subject matter jurisdiction under 113(h), concluding that GEs facial constitutional claim was the type of pre-enforcement challenge that Congress intended to preclude. General Electric Co. v. Whitman, 257 F. Supp.2d 8, 31 (D.D.C. 2003). * * *

GEs due process challenge to CERCLAs administrative orders regime is not a challenge to the way in which EPA is administering the statute in any particular removal or remedial action or order, but rather it is a challenge to the CERCLA statute itself. As such, GEs facial constitutional challenge does not fit within the plain text of 113(h)s reference to any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title. Although GE and EPA have ongoing interactions over remediation at several locations, GEs lawsuit does not challenge any particular action or order by EPA. The district courts conclusion that GEs facial constitutional challenge is barred by 113(h) renders much of this provision surplusage: gone is the limitation to challenges to removal or remediation actions. See Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 645 (D.C. Cir. 2000).

We therefore agree with the plain text interpretation of the en banc court in Reardon v. United States, 947 F.2d 1509, 1515 (1st Cir. 1991), that 113(h) does not bar preenforcement review of facial constitutional challenges to CERCLA. While [a] constitutional challenge to EPA administration of the statute may be subject to [ 113(h)]s strictures, because GEs claim does not challenge a removal or remedial action selected under 104 or an order issued pursuant to 106(a), GEs amended complaint sets forth a constitutional challenge to the CERCLA statute [that] is not covered by [ 113(h)].

Posted by Marcia Oddi on Tuesday, March 02, 2004
Posted to Administrative Law & Decisions | Environmental Issues | General Law Related

Indiana Decisions - Court of Appeals Posts Two

Larry L. Craig v. State of Indiana (3/2/03 IndCtApp) [Criminal Law & Procedure]

Anastazia Schmid v. State of Indiana (3/2/03 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Tuesday, March 02, 2004
Posted to Indiana Decisions

Law - More on electronic voting machines

The LA Times has choosen today, primary day in California, for a major article recounting the potential problems with electronic voiting. The headline: "Chads Out, but Controversy Remains: An electronic ballot awaits 43% of the state's registered voters today. Some experts worry."

An earlier ILB entry on electronic voting was posted here Feb. 14th.

[Update] See also this article in today's NY Times Science Section: "Did Your Vote Count? New Coded Ballots May Prove It Did"

[Update 3/3/04] So how did things turn out yesterday?

"Debut of New Technology Gets Mostly High Marks," is the headline to this story about the Maryland voting machines. But an AP story carried in the LA Times is headed: "Electronic Voting Runs Into Some Glitches."

From Freedom to Tinker: "Avi Rubin, the John Hopkins computer science professor and leading critic of e-voting, has posted a fascinating account of his day as an election judge in Baltimore, Maryland, using the new Diebold machines."

Posted by Marcia Oddi on Tuesday, March 02, 2004
Posted to General Law Related

Monday, March 01, 2004

Law - Wal-Mart Tries Patience of 7th Circuit Panel

In Hart v. Wal-Mart, an opinion issued today, the Court begins its opinion thusly:

Before CUDAHY, KANNE, and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. Yogi Berra might describe this case as deja vu all over again. For if the case seems familiar, it may be because we have decided the precise question presented in this appeal twice beforeboth times under virtually identical circumstancesand most recently, against the same appellant. See Speciale v. Seybold, 147 F.3d 612 (7th Cir. 1998); Blackburn v. Sunstrand Corp., 115 F.3d 493 (7th Cir. 1997). In both of these earlier cases we held that a petition to apportion claims to a settlement fund between an ERISA plan subrogation claim and other lienholders was not preempted by ERISAs civil enforcement provision and the allocation of the funds was a matter for determination in the state court. In the present case, Wal-Mart asks us to re-reconsider the issue, this time in the context of an award of $11,500 in attorneys fees, which the district court taxed against Wal-Mart under 28 U.S.C. 1447(c). After serious consideration (mainly of the possibility of sanctioning Wal-Mart for bringing this presumptuous appeal), we reaffirm our previous holdings in Blackburn and Speciale and affirm the order of the district court.

Posted by Marcia Oddi on Monday, March 01, 2004
Posted to General Law Related

Indiana Decisions - Star Reports on Indiana Rules "Adopted Last Week"

This story today in the Indianapolis Star, headlined "Justices OK rule limiting access to personal data," has a different take on the rule revision referred to here (or simply scroll down) in the Indiana Law Blog last Friday, Feb. 28.

In an age when information is available at the click of a mouse, the Indiana Supreme Court is clamping down on court records that contain personal information regarding crime victims and witnesses.

In a rule adopted last week, the court is attempting to balance an individual's right to privacy with the public's right to know what happens in court. * * *

"It's been open for the public to see if they come down to the courthouse and get it or have it faxed to them," VanValer Shilts said. "But it's a completely different thing when the information is available on the Internet."

The new rule will take effect next Jan. 1, just before Marion County's criminal court records are expected to go online. Marion County is launching an electronic record-keeping system that will one day be the standard for all courts statewide.

The Supreme Court rule change means information now available in court records -- such as the birth dates of crime victims -- will be off-limits next year. * * *

The rule will allow members of the public to access the confidential records if they can prove an "extraordinary circumstance" or that the opening of the records serves the public interest. Anyone seeking access must notify the individuals whose information they are trying to get. The victims or witnesses will have 20 days to respond.

Stephen Key, who is general counsel for the Hoosier State Press Association and served on the advisory committee, said the state's newspapers and broadcast media will be able to ask the Supreme Court for general access to victim and witness information not available to the general public.

Although the Star reports that the rule adoption has been finalized, I have been able to locate no notice of such: the proposed amendment to Administrative Rule 9 is still found here.

[Update] This afternoon the Supreme Court order, dated 2/25/04, amending Indiana Administrative Rule 9, was posted here on the Court's site. Access the revised Rule 9 directly here. Recall that the amendment takes effect January 1, 2005. Of particular interest is (A)(5): "This rule applies to all court records; however clerks and courts need not redact or restrict information that was otherwise public in case records and administrative records created before January 1, 2005."

Posted by Marcia Oddi on Monday, March 01, 2004
Posted to Indiana Decisions

Environment - Several stories on confined feeding; IDEM Responds to STAR Stories on SW Indianapolis Air Quality

The Muncie Star Press has carried a number of stories on confined feeding in recent days, including this one headlined "Full lagoons a 'common' occurrence," this one titled "Dutch dairyman denies allegation he menaced IDEM inspector," and this one: "Michigan: Vreba-Hoff gives farmers 'a black eye'."

IDEM's Commissioner responds to the recent stories on air pollution in SW Indianapolis (scroll down to see stories) in this Letter to the Editor in today's Indianapolis Star.

Posted by Marcia Oddi on Monday, March 01, 2004
Posted to Environmental Issues