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Friday, April 30, 2004

Not law but interesting - Justice Boehm screens USOC applicants

From an AP story today, dateline Denver:

More than 100 people applied for four independent spots on the U.S. Olympic Committee's new board of directors by Friday's deadline. The directors will join the three American International Olympic Committee members and four others nominated by athletes and sports organizations as part of the board formed last year after months of turmoil clouded the USOC's future.

The independent candidates, who applied online over the past three weeks, have a wide range of backgrounds -- including finance, marketing, public relations and athletics.

"There are people from virtually any description you might want to come up with," said Indiana Supreme Court Justice Theodore R. Boehm, who heads the four-person nominating committee. "Many of them have been distinguished in various fields, different backgrounds, different skills. We think we're going to be able to assemble a board that meets all the criteria we have, which obviously are credibility, talent, experience, diversity."

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to General News

Indiana Decisions - Four new Court of Appeals decisions posted today

George Carson v. State of Indiana (4/30/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

Appellant-Defendant George Allen Carson (“Carson”) appeals the trial court’s determination that he was guilty but mentally ill for the attempted murder of his wife, Tricia Carson (“Wife”). We affirm.

Issues. Carson raises two issues, which we restate as: [1] Whether the trial court’s determination that Carson was guilty but mentally ill was contrary to law because the evidence demonstrated that he was insane at the time of the attempted murder; and [2] Whether the Indiana Supreme Court’s holding in Barany v. State, 658 N.E.2d 60 (Ind. 1995), precluded Carson from proving that he was not responsible by reason of insanity at the time of the offense. * * *

On March 23, 2004, our supreme court decided [Thompson v. State, 804 N.E.2d 1146, 1148 (Ind. 2004)], wherein it held that a finder of fact is entitled to decide whether to credit the opinions of experts on insanity, even in the absence of lay witness testimony. Indeed, as previously mentioned, the Thompson court found sufficient evidence to support the trial court’s guilty but mentally ill determination when the evidence revealed that: (1) the defendant removed only items belonging to her from the house that she unlawfully entered; and (2) the police officers who stopped the defendant following the incident believed that she was lucid enough to proceed about her business. Although Thompson did not define the episodic parameters regarding what constitutes probative non-medical evidence, it demonstrates that the Indiana Supreme Court has revisited and reaffirmed its holding in Barany. Accordingly, we decline Carson’s invitation to disregard supreme court precedent. Affirmed.
NAJAM, J., and ROBB, J., concur.

In the Matter of the Supervised Administration of the Estate of Kellyn R. Andrews (4/30/04 IndCtApp) [Estates & Trusts]

"Given the sensitive nature and the specific facts of this case, we find that the trial court did not abuse its discretion in ordering the equal division of K.A.’s remains between Mother and Father. First, K.A.’s wishes allowed for the division of her ashes by the direction to spread them in different locales. Second, by acceding to such wishes, Mother also allows for a division of the remains. Moreover, neither IC 25-15-9-18 nor IC 23-14-31-26 distinguishes between a custodial and non-custodial parent. Finally, the practice of dividing the remains of a decedent among the survivors is common and acceptable in the funeral service industry. Susan French of French Funeral Home testified that the funeral industry has developed a market around the idea of dividing ashes. Specifically, French testified that memento urns or keepsakes have been marketed to preserve divided ashes for surviving family members."

Reeder Associates II v. Chicago Belle LTD., et al. (4/30/04 IndCtApp) [Attorney Fees]
Bailey, Judge

[H]ere, the propriety of the trial court’s award turns on the interpretation of a statute, i.e., Indiana Code Section 6-1.1-25-13. * * * Because Owner commenced the equivalent of an action to quiet title without first tendering the requisite check to Purchaser, it has not complied with the prerequisites necessary to invoke the attorney fees provision of Indiana Code Section 6-1.1-25-13(b). As such, the statute is inapplicable to the case at bar and the trial court erred by granting attorney fees and costs, in the amount of $49,348.76, to Owner. * * * For the foregoing reasons, we reverse the trial court’s award of attorney fees to Owner. Reversed.
RILEY, J., and DARDEN, J., concur.
Betty Bridges v. Metromedia Steakhouse Company, et al. (4/30/04 IndCtApp) [Tort]
Najam, Judge
Betty Bridges sued Metromedia Steakhouse Company, L.P., d/b/a Ponderosa Steak House (“Metromedia”), after she sustained a burn injury while visiting one of Metromedia’s restaurants. A jury returned a verdict in favor of Bridges, but also assessed her forty percent comparative fault. She appeals and presents the following issues for our review: 1. Whether the trial court abused its discretion when it allowed an insurance adjustor to testify regarding the extent of Bridges’ injury based upon her observation during the parties’ mediation. 2. Whether the trial court abused its discretion when it allowed that testimony despite Metromedia’s failure to identify the insurance adjustor as a witness prior to trial. We affirm.
BAKER, J., and MAY, J., concur.

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending April 30, 2004

Here is the Indiana Supreme Court's transfer list for the week ending April 30, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - Interesting story on judge shopping

A story today in the Munster Times has some interesting history on the prohibition against "judge shopping" in Indiana:

In the old days, "judge shopping" wasn't prohibited. Prosecutors who were prosecuting a high-profile murder case could pick whichever judge they felt was toughest on people accused of that crime.

But Bradford said that ended several years ago when boxer Mike Tyson stood trial for rape in Indiana and his attorneys complained that the prosecution got the case assigned to a judge who was a former sexual crimes prosecutor.

The Indiana Supreme Court ordered each county to come up with a way to randomly assign cases. Porter County came up with a marble system, getting marbles made of colors like black, white and green. Marbles are now drawn randomly from a container, and the color which is drawn decides which judge receives the case.

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to Indiana Decisions

Indiana Decisions - Two takes on same story, in the same story

"Attorney gets 5-month sentence, and a lot of support," is the headline to a mortgage scam story published this week in the Muncie Star-Press. "Take #1" is found at the beginning of the story:

INDIANAPOLIS - Moments after Federal Judge Sarah Evans Barker sentenced a former Delaware County court official to a 5-month prison term, she nearly cried and told the people standing in her courtroom how she never wanted to hear the case. But she did, and former master commissioner Bruce McLaren, a man Barker had apparently met before, was sentenced in connection with a mortgage scam in which he and two co-defendants were able to steal money over a 3-year period.

Along with the 5-month prison term, Barker also sentenced McLaren to five months of home detention and two years of supervised probation, and ordered him to pay $314,361 in restitution. But, McLaren will not start serving his sentence until mid July so he can attended his daughter's wedding on May 22.

"Take #2" appears later in the same story:
According to federal authorities, McLaren, real estate agent Cindy Hickey, 45, and appraiser Danny R. King, 37, conducted 25 fraudulent real estate transactions between 1998 and July 2001. Most of the homes involved were on Muncie's south side, investigators said.

McLaren bought homes at low cost to resell. Then he and Hickey provided mortgage lenders false information about buyers' assets in order to get the buyers to qualify for mortgages. King allegedly provided numerous appraisals that corroborated the grossly inflated sales prices to mortgage lenders.

Based on the bogus information, the buyers obtained loans that were sometimes twice as much as McLaren had paid for the houses, investigators said. McLaren and Hickey shared the profits from the transactions, authorities alleged, and paid King a fee for his appraisals. In most instances, the buyers defaulted on their mortgages, prompting loan companies to foreclose on the properties.

[Original link thanks to Kemplog.com.]

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to Indiana Decisions

Indiana Law - Online Child Support Calculators

In a press release this morning titled "Judiciary Launches Online Child Support Calculators," the Indiana Supreme Court reports that:

In a highly collaborative effort, the Indiana Supreme Court has created three new electronic tools that will make calculating child support obligations easier and faster, Chief Justice Randall T. Shepard announced today.

“These tools will assist judges, attorneys, and citizens around the state make accurate calculations of child support in domestic relations cases that follow the Indiana Child Support Guidelines,” said Chief Justice Shepard.

These three calculators, which generate the required child support court forms, include:

  • an online, interactive Step-by-Step Calculator complete with instructions, definitions, and references to the Guidelines;
  • an online, interactive Practitioners’ Calculator specifically designed for members of the justice community with experience calculating child support; and
  • a Downloadable Calculator for Microsoft Excel™ for use on computers without an Internet connection by members of the justice community with experience calculating child support.
The calculators are the product of collaboration between the Division of State Court Administration, the Indiana Judicial Center, the Judicial Conference of Indiana Domestic Relations Committee, the Indiana Supreme Court Judicial Technology and Automation Committee (JTAC), and the Marion Superior Court. Technical development of the online calculators was completed by eGov Strategies of Indianapolis. JTAC staff members completed the technical development of the downloadable calculator.

“The greatest benefit of these calculators is their ease of use,” said St. Joseph Superior Court Judge Michael Scopelitis, who chairs of the Domestic Relations Committee. “Not only do the calculators simplify the process of determining support obligations in compliance with the Child Support Guidelines, but using each calculator should be intuitive for their respective audiences.”

Check out the three calculators here.

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to Indiana Law

Environment - Update to 500 barrels of waste story

Updating yesterday's entry - "500 barrels of hazardous waste found" - is this story today in the Munster Times headed "State vows water testing at dump site near Lowell." Some quotes:

In the wake of news of about hazardous chemicals being dumped at the old Feddeler site, the Indiana Department of Environmental Protection Thursday promised to again test groundwater at the site in coming weeks.

At the same time, the state partly backed away from an e-mail written last August by a solid waste official at the agency.

In that memo to the director of the Lake County Solid Waste Management District, Bruce Palin wrote that 500 barrels of hazardous waste had been documented at the now-closed site.

A memo to Palin from state staffer Daniela Klesmith Thursday clarifies the situation. It notes the 500 additional barrels were not dumped, but cites inspection sheets indicating a Michigan firm called Organic Chemical had deposited "numerous barrels of hazardous waste" in two trenches, which were then covered.

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to Environmental Issues

Law - Restriction against testimonials from happy clients challenged

"Lawyer tackles state rules restricting ads," is the title of a story last week in the Cleveland Plain Dealer. Some quotes:

Cincinnati - Bret Adams has won some huge paydays over the years for Ohio's biggest sports stars.

Now, the lawyer wants celebrity clients like former football standout Chris Spielman to appear in advertisements to talk about the money he's made for them. * * *

[But] State rules on legal ethics prohibit lawyers from lining up testimonials from satisfied customers.

In Ohio, any ads with clients touting an attorney's capabilities are banned as "misleading and self-laud- atory" under the disciplinary code. A lawyer can have his license lifted for violating the ban, which has been on the books for nearly a century. * * *

Adams, who also represents University of Cincinnati basketball coach Bob Huggins and ESPN commentator George Karl, filed a federal lawsuit this month that aims to scrap the Ohio Supreme Court rules that govern content in ads sponsored by the state's 30,000 lawyers.

All seven justices have been named as defendants. So far, they have not responded to the suit.

Thanks to Carolyn Elefant's MyShingle.com for the link.

What about Indiana? See Rule 7.1 (Publicity and Advertising), and particularly subsection 7.1(d), of the Indiana Rules of Professional Conduct, for a similar prohibition.

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to General Law Related

Law - More on Drug Calculators

Updating the Indiana Law Blog entry from Wednesday (4/28/04), titled "More on pharmaceutical arbitrage and drug import," is this story from the Business Section of yesterday's NY Times headlined: "Medicare Starts Web Site to Compare Drug Prices." Some quotes:

Medicare plans today to open a Web site designed to help millions of older Americans compare prices of their prescription drugs. The site is the first big-league test for DestinationRx, a little-known company that Medicare hired without competitive bidding to design and run the system.

If it works as advertised, Medicare enrollees will be able to visit the site to find prices of their particular medications at nearby stores that will accept Medicare-certified discount cards. They could then use the information to decide which card would help them most when the discount program starts on June 1.

But the program has attracted a number of skeptics. Many industry experts doubt that price transparency can be achieved in a business famous for spreading a fog of consumer confusion. Others wonder if Medicare's Web price-comparison service is even necessary; several free commercial services are already available online. And even among people who think the Medicare comparison site, at www.medicare.gov, is a good idea, some wonder if DestinationRx will prove up to the task. "It is astounding that a tiny firm got that contract on a noncompete basis," said Dr. Arnold Milstein * * *.

[I tried to check out the drug calculator; I believe this is the direct link. Using it certainly is not effortless as there are several variables involved, including what drug card the user/client/patient has/or will sign up for. As the story notes: "Accurate comparisons are important because the short time frame - 19 months - and because in some cases pays a subscription fee of as much as $30 for a card."]

The Times story continues:

Companies that already operate drug price-comparison Web sites, including Drugstore.com and PillBot .com, have complained that Medicare administrators did not seek competitive bids before awarding the $3 million, 18-month contract. But executives at DestinationRx, which operates a online discount pharmacy service, insist they qualify because they already have the computer systems that Medicare needs. * * *

Drugstore.com says it will publish its comparisons of the Medicare card prices. It promises to offer some drugs at still lower prices, regardless of whether the buyer has a Medicare-certified discount card. "Our standard discount is 20 to 30 percent off A.W.P.,'' said Greg French, a spokesman for Drugstore.com.

PillBot.com, another online drug information company, also expects to undercut the Medicare card discounts, said Gregg James, a PillBot vice president. The company operates an online pharmacy, RxCorps .com, that offers low-cost generic drugs to Medicare enrollees. "We are going to bring our prices low enough that people will not want to have that drug card,'' he said.

Medicare Resources Online. Published this week on the excellent LLRX.com is a comprehensive article titled "Medicare Resources Online" that reviews "some of the many online Medicare resources," listing "primarily free resources that emphasize law, policy, and program implementation."

Posted by Marcia Oddi on Friday, April 30, 2004
Posted to General Law Related

Thursday, April 29, 2004

Indiana Decisions - One Court of Appeals, Two New Tax Court Opinions Posted Today

Dean E. Blanck v. Indiana Department of Corrections (3/30/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Najam, Judge

Dean Blanck appeals the trial court’s dismissal of his complaint against the Indiana Department of Correction (“DOC”) and the Miami Correctional Facility. He raises a single issue on appeal, namely, whether the trial court erred when it dismissed his complaint for failure to state a claim upon which relief can be granted. We reverse and remand. * * *

Relying on [Zimmerman v. State, 750 N.E.2d 337 (Ind. 2001)], the state asserts categorically that, “the result is no different because Blanck claims the violation of a statutory right.” We cannot agree. Concurring in Zimmerman, Justice Boehm recognized “two open questions” the defendant did not raise in his complaint. Specifically, the defendant “made no claim that Indiana Code [S]ection 11-11-5-4 grants him a statutory right which is protected by Article I, Section 12’s open courts clause.” Id. Justice Boehm went on to state:

We are left, then, with two open questions for another day. First, does Indiana Code section 11-11-5-4, which prohibits the Department of Correction[] from imposing certain disciplinary actions, create a statutory right? If so, does Article I, Section 12 of the Indiana Constitution guarantee inmates a right to judicial review of disciplinary proceedings allegedly in violation of that statute?
Here, as we have stated, Blanck’s complaint alleges in part that “he has a state created statutory right by the provisions of Ind. Codes § 11-11-5-4, § 11-11-5-5, § 11-11-5-6, § 11-11-5-7 and § 11-10-1-7 protected by the State Constitution,” and that “Article [I], Section 12 of the Indiana Constitution ‘Open Courts Clause’ is a guaranteed right to judicial review of state laws where prison officials have imposed arbitrary forms of disciplinary punishments in direct violation of these statutes [i.e.] I.C. 11-11-5-4.” Thus, Blanck has raised legal questions not addressed in Zimmerman. Indeed, Blanck’s complaint raises issues of first impression, and he is entitled to his day in court to have those issues decided on the merits. In sum, we reject the State’s argument that Zimmerman is dispositive and conclude that Blanck’s complaint states allegations upon which relief could be granted. Thus, the trial court erred when it dismissed Blanck’s complaint. Reversed and remanded for further proceedings.
BAKER, J., and MAY, J., concur.
Phelps Dodge v. Department of Local Government Finance (4/28/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]

"The sole issue for the Court to decide is whether the State Board erred when it refused to award obsolescence depreciation to PD’s improvements." Affirmed.

The Dalton Foundries, Inc. v. Department of Local Government Finance (4/28/04 IndTaxCt NOT FOR PUBLICATION) [RRS Deduction]

"Thus, it is clear to the Court that Dalton’s RRS application was denied because it was untimely filed. Having stated in Dalton I that the Assessor had discretion to deny an untimely filed Form RRS-1, and in light of the filing deadlines prescribed by statute, the Court cannot say that the State Board abused its discretion in affirming the Assessor’s denial of Dalton’s RRS deduction application."

Posted by Marcia Oddi on Thursday, April 29, 2004
Posted to Indiana Decisions

Indiana Decisions - Among the 7th Circuit opinions issued today

Noteworthy among the opinions issued today by the USCA for the 7th Circuit is an immigration case, GUCHSHENKOV, IVAN v. ASHCROFT, JOHN D., where Judge Posner writes about the immigration judge:

Her analysis fell far below the minimum required to support an administrative decision. It is one more indication of systemic failure by the judicial officers of the immigration service to provide reasoned analysis for the denial of applications for asylum. We are mindful that immigration judges, and the members of the Board of Immigration Appeals, have heavy caseloads. The same is true, however, of federal district judges, and we have never heard it argued that busy judges should be excused from having to deliver reasoned judgments because they are too busy to think. The two cases under review, like the other cases in which we have reversed the board of late, are not so difficult that it is unreasonable for a reviewing court to expect and require reasoned judgments at the administrative level. The errors that have compelled us to reverse in these cases despite the deferential standard of judicial review of agency action are not subtle. Asylum seekers should not bear the entire burden of adjudicative inadequacy at the administrative level.

The petitions for review are granted, the orders of removal vacated, and the cases returned to the immigration service for further proceedings consistent with this opinion. We urge that these two cases be reassigned to other immigration judges in view of the striking inadequacy of the analysis by the immigration judges whose decisions we are vacating.

The panel here consisted of Posner, Rovner, and Evans. Judge Evans, in a concurring opinion, begins:
Although I join the majority in voting to remand these two consolidated asylum petitions for further proceedings, I write separately to express my concern, and growing unease, with what I see as a recent trend by this court to be unnecessarily critical of the work product produced by immigration judges who have the unenviable duty of adjudicating these difficult cases in the first instance.
Judge Evans then goes on to quote some prior language of the Court, in a paragraph that begins: "Recently, in failing to find substantial evidence in the record sufficient to affirm the decisions of the immigration judges, we have made disparaging comments about the quality of their work: * * *."

Posted by Marcia Oddi on Thursday, April 29, 2004
Posted to Indiana Decisions

Indiana Decisions - Supreme Court suspends Karon Perkins

An AP story posted this morning on the IndyStar.com website, headlined "Court yanks Columbus lawyer's license," reports:

COLUMBUS, Ind. -- The Indiana Supreme Court suspended the law license of an attorney accused of helping to turn her law office into a front for a methamphetamine-dealing operation. The order suspending Karon Perkins, which Chief Justice Randall T. Shepard signed Wednesday, was effective immediately. The suspension was to remain in effect until the allegations against Perkins are resolved.
The order itself is not yet available online.

Posted by Marcia Oddi on Thursday, April 29, 2004
Posted to Indiana Decisions

Environment - Two items in today's Indiana papers

Coal Ash. The Evansville Courier-Press has a lengthy editorial today on coal ash that covers the history of the issue as it pertains to disposal on mine property. It begins:

Since 1988, and probably much longer ago than that, Indiana environmentalists, government officials and the coal/power industry have been debating the disposal of coal combustion waste. And they are still at it today, with no resolution in sight. In fact, it looks as if not much will happen until after the National Academy of Sciences completes a study of whether coal ash is an environmental threat when disposed of on mine property. With the study expected to begin this summer and take 18 months, it could be two years or more before the controversy has any scientific guidance.
The editorial refers to a Courier-Press story last weekend. That story, and others, are included in this Indiana Law Blog entry from April 25, 2004.

500 barrels of hazardous waste found. That is the headline to this story today in the Munster Times. The gist:

Five hundred barrels of hazardous waste were dumped at the old Feddeler landfill west of Lowell, according to a memo by an Indiana Department of Environmental Management official. * * * Even so, the state did not bother to test the leachate flowing out of the now-closed landfill and into a stream that eventually feeds the Kankakee River, according to the memo, which The Times obtained this week.

Several homes and businesses located within a few hundred feet of the dump rely on well water pumped from an underlying aquifer.

[Bruce Palin, IDEM's deputy assistant commissioner for its Office of Land Quality] said he wrote the memo discussing the hazardous waste after the director of the Lake County Solid Waste Management District inquired about cleaning up the site.

In the Aug. 14 memo, Palin said a staff summary documented there were 500 barrels of hazardous waste from a company called Spartan Chemicals, along with pesticides, paint thinner, resins and a variety of chemicals at the site. * * *

Robert Feddeler, who once also owned land immediately north of Ind. 2, but sold it about three years ago to Allied Waste to turn into another construction and debris landfill. He could not be reached for comment.

Palin recalled that money from the sale was to be used to properly close the Feddeler dump, but that did not happen and, after years of ongoing troubles, IDEM Commissioner Lori Kaplan ordered Feddeler's company, R&M Enterprises, the corporate owner of the dump, to pay a $54,750 fine. The state did not fine Feddeler himself. The company asserted it had no money and never paid.

Indeed, IDEM records show that IDEM entered into a Commissioner's Order (9610) with "R&M Enterprises d.b.a. Feddeler Landfill" on June 27, 2001. The Order does not make reference to the 500 barrels of hazardous waste. It requires that the respondent proceed with closure of the site as a solid waste facility and that it pay a $54,750 civil penalty to IDEM.

Also of interest is an April 13, 1999 Agreed Order (387) entered into by R&M ENTERPRISES, INC. d/b/a Feddeler Construction/Demolition Landfill and IDEM, whereby the respondent agreed to pay a civil penalty of $98,862.50. However, most of this penalty was to be forgiven under the terms of a vaguely outlined Supplemental Environment Project (SEP) whereby respondent was "to provide earthmoving equipment and equipment operators for performance of earthmoving activities at a site or sites to be identified by the Complainant." This agreement also makes no mention of barrels of hazardous waste, but rather charges "that the Respondent has overfilled 66,000 cubic yards of construction/demolition material located on the southwest portion of the landfill."

Posted by Marcia Oddi on Thursday, April 29, 2004
Posted to Environmental Issues

Law - US Supreme Court upholds Pennsylvania redistricting plan

Here is the Washington Post coverage of yesterday's decision in Vieth v. Jubelirer. Some quotes:

A deeply divided Supreme Court yesterday upheld a redistricting plan that sought to give the Republican Party an edge in races for Pennsylvania's 19 congressional seats but refused to close the door on court challenges to such "partisan gerrymandering" in future cases.

A five-justice majority ruled that there is no objective way to determine whether the 2002 Pennsylvania redistricting plan, which a Republican-dominated state legislature devised and which produced GOP victories in 12 of the 19 districts, was so unduly influenced by politics that it denied Democrats their constitutional right of equal treatment under state law. As a result, the majority said, the court must bow out.

Referring to the 1986 Supreme Court decision in Davis v. Bandemer (declaring an Indiana legislative redistricting to be unconstitutional partisan gerrymandering), the story continues:
No "judicially manageable standards for adjudicating political gerrymandering claims have emerged," Justice Antonin Scalia wrote in an opinion that was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas. Though a decision by the court in 1986 opened the door to court challenges against alleged partisan gerrymandering, Scalia wrote, the past 18 years of experience, in which no court has upheld such a challenge, shows that "political gerrymandering claims are nonjusticiable and that [the 1986 decision] was wrongly decided."

The fifth member of the majority, Justice Anthony M. Kennedy, agreed with Scalia that the Pennsylvania Democrats, who noted that the state now has a Republican-majority House delegation even though Democrats got most of the statewide vote for Congress, had failed to show how a court could decide that they had been the victims of unconstitutional gerrymandering.

But he said that did not mean a court could never figure out how much political gerrymandering is too much, and he refused to overrule the 1986 decision.

"I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases," he wrote.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented, offering their views of how courts could formulate intelligible definitions of excessively partisan redistricting.

Here is the LA Times coverage of the decsion. Some quotes:
The 5-4 ruling is a major disappointment for liberal reformers who had hoped that the court would insist on fairness and equality in the political process.

They argued that elections are being "rigged" across the country so that politicians pick their voters, instead of the other way around.

During the 1970s and 1980s, Democrats used their majorities in state legislatures to ensure that their party would maintain a majority in the U.S. House of Representatives. Typically, they would draw district lines in a way that would lump Republicans into a few districts, leaving most with a comfortable majority of Democratic voters.

In recent years, and particularly since the 2000 census, Republicans have done the same. And thanks to more sophisticated computers, reformers say, state party officials can engineer the results long before the voters go to the polls.

Lawyers challenging this process had hoped the Supreme Court would rule that democracy requires elected representatives to reflect the will of most voters, not the line-drawing skill of the state lawmakers who control the process.

"Today's decision means that the courts have given up on trying to curb even the most outrageous partisan gerrymanders," said Tom Gerety, executive director of the Brennan Center for Justice at New York University Law School. He cited Pennsylvania, Georgia, Florida, Michigan and Texas as examples of overly partisan line-drawing.

While the framers of the Constitution envisioned the House of Representatives as reflecting the will of the people, political scientists say that, today, it rarely reflects democracy in action. In 2002, for example, 99% of the House incumbents who sought reelection won.

Here is the NY Times article:
Holding the swing vote, Associate Justice Anthony M. Kennedy voted with his conservative colleagues in saying that the Pennsylvania case did not violate the Constitution. But in a separate opinion, he declared that he was not willing to say as they did that no case would ever rise to that standard.

The lineup of the justices was the same as in the case that ended the recount in Florida after the 2000 election and essentially awarded the presidency to George W. Bush.

Several other redistricting cases are in the pipeline and may end up before the Supreme Court. If the court accepts a suit challenging State Senate and House districts in Georgia and decides it on the same ground as the Pennsylvania case, then Democrats would be the winners. But issues other than partisan gerrymandering are involved in the Georgia case, and it could be decided on different grounds.

The most conspicuous case is in Texas. A new map of Congressional districts was approved there last year at the urging of Representative Tom DeLay, the House majority leader. Republicans drew the new lines after they won full control of the Legislature, and they are expected to bring the party at least four new House seats in November.

Useful commentary on the opinion from SCOTUSBlog and from Election Law Blog.

Posted by Marcia Oddi on Thursday, April 29, 2004
Posted to General Law Related

Wednesday, April 28, 2004

Indiana Decisions - Seven Court of Appeals Decisions Posted Today

Daniel F. Million v. Janet L. (Million) Swager (4/28/04 IndCtApp) [Family Law]

Another dispute over divorced parents' shares of college costs for child. "Daniel F. Million (“Father”) appeals the trial court’s order regarding payment of college expenses for C.C.M., the oldest child of Father’s former marriage to Janice L. Swager (“Mother”). Father raises one issue on appeal, which is whether the trial court’s order that Father pay toward C.C.M.’s education at Cornell University was clearly erroneous. We affirm."

Steven A. Fields v. State of Indiana (4/28/04 IndCtApp) [Criminal Law & Procedure]
Robb, Judge

On March 30, 2004 the Indiana Law Blog reported here: "Court of Appeals to hear another chewing tobacco/breathalyzer case," to be argued at Indiana State University. Here is the decision: "Because we hold the trial court did not abuse its discretion in admitting the chemical breath test results, and the State presented sufficient evidence to support Fields’s conviction, we affirm the judgment of the trial court." BAKER, J., and RILEY, J., concur.

Mikki M. Bergman v. Thomas M. Zempel (4/28/04 IndCtApp) [Family Law; Civil Procedure]
May, Judge

Mikki M. Bergman (“Mother”) brings this interlocutory appeal from the Allen Superior Court’s denial of her motion to dismiss a petition to establish paternity filed by Thomas M. Zempel (“Father”). Mother raises two issues, which we consolidate and restate as whether the trial court erred when it failed to dismiss Father’s petition. We reverse. * * *

We have repeatedly noted jurisdiction under the UCCJA [Uniform Child Custody Jurisdiction Act] is a question of jurisdiction over the case and, if a party fails to contest a trial court’s jurisdiction, the issue can be waived. Similarly, Pennsylvania’s Rules of Civil Procedure require a party to “raise any question of jurisdiction of the person or venue by preliminary objection filed within twenty days of service of the pleading to which objection is made or at the time of hearing, whichever first occurs.” As Father failed to question the Pennsylvania Court’s jurisdiction at an appropriate time, he has waived any such argument. Accordingly, even if the Pennsylvania Court erred when it exercised jurisdiction over Mother’s petition, Indiana courts should recognize and enforce its custody determination.

The Allen Superior Court should have stayed proceedings on Father’s petition and contacted the Pennsylvania Court when it learned custody proceedings were pending in Pennsylvania. Because the Pennsylvania Court had entered an initial custody decree in conformity with the PKPA [Parental Kidnapping Prevention Act], the trial court should have recognized and enforced that initial order. Moreover, because Pennsylvania had continuing jurisdiction over the custody determination in accordance with the PKPA and Pennsylvania’s version of the UCCJA, the trial court should have dismissed Father’s petition. Accordingly, we reverse the trial court’s denial of Mother’s motion to dismiss.
Reversed. BAKER, J., and NAJAM, J., concur.

William M. Geiersbach, Jr. v. Robert Frieje, Dave Wagner, and Tri State University, and Josh Wagner (4/28/04 IndCtApp) [Tort]

"Conclusion. A participant in a sporting event or practice cannot recover against another participant absent proof of intentional injury or malicious or reckless behavior. Geiersbach failed to designate any evidence showing such conduct. Therefore, the trial court properly granted the motions for summary judgment. The trial court’s decision is affirmed."

George M. Saunders v. State of Indiana (4/28/04 IndCtApp) [Criminal Law & Procedure]

Christina M. Allgood, individually and on behalf of all others similarly situated v. Meridian Security Insurance Company (4/28/04 IndCtApp) [Insurance]
Robb, Judge

Christina Allgood appeals from the trial court’s dismissal of her class action lawsuit against Meridian Security Insurance Company and denial of her own motion for partial summary judgment. We reverse. * * *

Conclusion. The policy at issue provides that Meridian may, at its option, repair or replace a damaged vehicle with “like kind and quality.” We construe that to include not only restoring to the insured a vehicle of similar physical condition, but also restoring to the insured a similar value as prior to the damage. Accordingly, we hold that in an appropriate case, diminution in value may be recovered by the insured. The trial court therefore erred in granting Meridian’s motion to dismiss and in denying Allgood’s motion for partial summary judgment on this issue. We therefore remand to the trial court for further proceedings consistent with this opinion. Reversed.
SULLIVAN, J., concurs.
HOFFMAN, SrJ., dissents with opinion:
I respectfully dissent to the majority’s rewrite of the contract between Allgood and Meridian. As the majority has already stated, and I restate for emphasis, we may not rewrite an insurance contract if the language of the contract is unambiguous. Estate of Ebelhard v. Illinois Founders Insurance Co., 742 N.E.2d 1, 2 (Ind. Ct. App. 2000). In interpreting the contract, we must attribute the plain meaning to the contract’s language. * * *

Terry L. Slinkard v. State of Indiana (4/28/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Wednesday, April 28, 2004
Posted to Indiana Decisions

Indiana Decisions - Five Tax Court Rulings Posted Today

Robert Rakoci v. Department of Local Government Finance (4/23/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]

"Robert Rakoci (Rakoci) appeals the State Board of Tax Commissioners’ (State Board) final determination valuing his real property for the 1998 tax year. The issue for the Court to decide is whether the State Board erred in assigning each of Rakoci’s two apartment buildings a “C” grade. For the following reasons, the Court AFFIRMS the State Board’s final determination."

Waterfurnace Intl., Inc. v. Department of Local Government Finance (4/23/04 IndTaxCt) [Property Tax]

Waterfurnace International, Inc. (Waterfurnace) appeals the State Board of Tax Commissioners’ (State Board) final determination valuing its real property for the 1998 tax year. The issue for the Court to decide is whether the State Board erred when it assessed Waterfurnace’s improvement using the General Commercial Industrial (GCI) schedule as opposed to the General Commercial Kit (GCK) schedule. * * * Waterfurnace argues that the State Board erred in using the GCI as opposed to the GCK schedule when it assessed its improvement. The State Board claims that Waterfurnace failed to demonstrate that its improvement qualified for GCK pricing. The State Board, however, is incorrect. * * * Because the State Board failed to support its final determination with substantial evidence, it did not rebut Waterfurnace’s evidence indicating that its improvement qualified for assessment under the GCK schedule. Accordingly, the State Board’s final determination must be reversed.
Goshen Sash & Door - Smokercraft v. Department of Local Government Finance (4/23/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]

"The sole issue for the Court to decide is whether three of GSD’s improvements are entitled to additional obsolescence depreciation adjustments. * * * Because GSD failed to link the factors causing obsolescence with an actual loss in its property’s value, it failed to make a prima facie case quantifying the amount of obsolescence to which it was entitled. Thus, the Court AFFIRMS the determination of the State Board."

Shelby Street Realty Corporation, n/k/a Merchandise Warehouse, Inc. v. Perry Township Assessor (Opinion) (4/26/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]

Re obsolescence depreciation.

Shelby Street Realty Corporation, n/k/a Merchandise Warehouse, Inc. v. Perry Township Assessor (Order on Respondent's Motion to Dismiss) (4/26/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]

Posted by Marcia Oddi on Wednesday, April 28, 2004
Posted to Indiana Decisions

Law - More on pharmaceutical arbitrage and drug import

This opinion piece in today's Wall Street Journal (paid subscription required), titled "Why Not Import Drugs From Fantasyland?" got my attention. Referring to an announcement last week from Congress of "bipartisan legislation to allow 're-importation' of drugs sold to Canada," the column continues:

We're not in business to give Congress even worse ideas than it can come up with on its own, but if the Canadian system is so great, why not just enact our own Canadian-style price controls here? Or why not just mandate that all U.S. drugs be shipped to Canada and then shipped back so they'll be eligible for Canadian prices and all Americans can have cheaper drugs? What's the point of simply sanctifying ad hoc hoops and hurdles that permit a few Canadian Internet pharmacists to get rich by arbitraging between our system and theirs?
"Web Site Lets Uninsured Compare Medication Costs," is the headline of this story today in the Washington Post, that reports:
With a new Web site -- one of the first of its kind in the country -- unveiled yesterday by Maryland Attorney General J. Joseph Curran Jr., uninsured patients like Schuldenfrei can enter a Zip code and prescription type and compare the prices at pharmacies in the neighborhood and across the state.

It's the latest attempt to bring down the price of prescription drugs. Maryland Gov. Robert L. Ehrlich Jr. (R) recently announced that Maryland will join a pool of states that could save money by buying drugs in bulk. And Montgomery County, as part of its employee health plan, is considering importing drugs from Canada, where prescription drugs are generally less expensive because of a weak Canadian dollar and price controls set as part of the country's national health care program. * * *

In Maryland, Curran noted at the news conference where reporters and senior citizens crowded around tables and leaned against the walls, almost 700,000 people younger than 65 have no health insurance, and more than 220,000 seniors on Medicare have no prescription drug coverage -- that's "about 1 million Marylanders," he added, " . . . a lot of us."

So about a year ago, inspired by programs in Arizona, New Mexico and Maine that surveyed pharmacies and publicized the disparate costs for prescription drugs, Curran (D) decided to embark upon a similar effort but take it one step further.

Culling information from Medicaid reimbursement requests, Curran's staff was able to determine how much each of the state's 1,200 pharmacies was charging for 25 of the most commonly prescribed drugs. All of that information, updated monthly, is now available on the Web site: www.oag.state.md.us.

In Montgomery, the price of the cholesterol-lowering medication Lipitor can range from $60 to $109, a difference of $49 a month or $588 a year, according to the Web site. In Prince George's County, the price can run from $68 to $98, while in Howard County, Lipitor is sold for $72 to $104.

When Curran first alerted the state's 1,200 pharmacies to what he was doing, many expressed concern. Some 24-hour pharmacies worried that they would be undercut by pharmacies that didn't keep extended hours, said Carolyn Quattrocki, Curran's special assistant, who oversaw creation of the Web site. Independent drugstores, which offer a personal relationship with a pharmacist, fretted that price comparisons with large chains such as Target and Wal-Mart would put them out of business.

Here is the link to the Maryland Drug Calculator.

Here is an earlier (4/23/04) Indiana Law Blog entry on drug prices.

Posted by Marcia Oddi on Wednesday, April 28, 2004
Posted to General Law Related

Law - US Supreme Court rules in environmental case

The Supreme Court issued a decision in Engine Manufacturers Association, et al. v. South Coast Air Quality Management District, et al. this morning, vacating and remanding the lower court decision by a vote of 8-1. The question in the case was: Whether local government regulations prohibiting the purchase of new motor vehicles with specified emission characteristics--which are otherwise approved for sale by state and federal regulators--are preempted by the Clean Air Act. See the FindLaw docket here.

[Update 4/29/04] Here is today's LA Times coverage. The lead:

Southern California air quality officials overstepped their authority when they required private trash haulers, bus lines and other companies to purchase low-pollution vehicles for their fleets, the U.S. Supreme Court ruled Wednesday.

The 8-1 decision significantly sets back a broad effort by the South Coast Air Quality Management District, the regional smog agency, to expand its reach and tackle the biggest sources of smog-forming exhaust: cars, trucks and other motor vehicles.

The federal government has primary authority over those pollution sources, and local regulators assert that federal officials are not doing enough to help clean the air in Southern California.

The ruling could also forecast trouble for other efforts by California officials to press the state's authority to push new air pollution regulations, some legal experts said.

In another air story today, the LA Times reports here:
WASHINGTON — Career government experts in the arcane field of air quality modeling have joined to oppose a new Bush administration policy that they say threatens air quality over national parks and wilderness areas.

In a rare internal protest, they contend that science is being manipulated to suit policy objectives.

The air quality modelers in all but one of the Environmental Protection Agency's 10 regions have told their bosses that they believe the policy, which alters the air quality modeling for North Dakota's national parks and wilderness areas, represents "substantial changes from past air quality modeling guidance … and accepted methods."

They also warned that the policy change "could set a precedent" for other regions, according to an internal EPA memo dated April 21.

Veteran EPA officials said the agency's modelers decided to take a stand against the policy because they were offended by what they termed the administration's efforts to use science to mask a policy change that would hurt air quality. They also were worried that the new policy would make it more difficult to protect the air over federal lands.

Posted by Marcia Oddi on Wednesday, April 28, 2004
Posted to General Law Related

Indiana Law - Executive branch "lobbyists" to be regulated

Today's Indianapolis Star has this front-page story: "State sets new rules for ethics: Kernan aims to restrict lobbying and ban gifts to executive branch." It begins:

Gov. Joe Kernan laid out new ethics and lobbying rules Tuesday, including a ban on any gifts to executive branch employees and a one-year restriction on lobbying by senior officials who leave his administration.

In addition, Kernan said he will create an "office of chief investigator," who will report to the governor. That person will coordinate the state's internal ethics investigations and develop additional policies to prevent fraud.

"An organization, in order to be effective, must have the trust of its customers, and must have very clear expectations and rules that are laid out, that are not confusing," Kernan said at a news conference in his Statehouse office.

That trust has been strained by a series of scandals in state government in recent months. Four employees at the Bureau of Motor Vehicles were arrested, accused of taking bribes to give out driver's licenses. A convicted identity thief was arrested after the state learned he'd lied to win a key job at the Public Employees Retirement Fund that gave him access to sensitive information.

A manager at the Family and Social Services Administration was fired and indicted earlier this month on charges that he bilked the state out of $455,000.

Kernan will implement the new rules through executive orders, many of which will take effect July 5. The new rules also say lobbyists trying to influence state agencies must register, just as those trying to influence the legislature must do.

Here is the link to the actual Kernan press release, dated 4/27/04.

My initial questions: First, re the series of scandals listed above - these offenses already are being prosecuted. What will the new rules add?

Second, what will be the definition of an executive branch lobbyist? This will not be easy to draft. Here is the link to the law on legislative lobbyists in Indiana (IC 2-7). Here is the chapter (IC 2-7-1) containing the definitions. Essentially, this law requires that anyone who is paid or expends more than $500 to influence legislative action must register. The focus of "legislative action" is basically the enactment or defeat of legislative measures. The executive/administrative branch of state government is much more diverse. What will the definitions be here?

Some attention is given to this issue in the Star story this morning:

But Dan Seitz, a lobbyist with BoseTreacy Associates LLC and a partner with the law firm of Bose McKinney & Evans LLP, said Kernan's announcement leaves him with more questions than answers.

His biggest concern? The definition of a lobbyist.

In the legislature, it's anybody who spends at least $500 a year to influence the General Assembly.

How a lobbyist is defined in the executive branch will be decided by the Department of Administration, which Kernan has charged with developing theproposed rules by July 5.

Rules affecting lobbyists will be published in the Indiana Register and will go through the normal rule-making process, with feedback from the public, before final versions are drafted in six to nine months.

Seitz questioned Kernan's authority to impose the registration requirement.

"There are freedom-of-speech issues," he said.

Other papers this morning also cover this story. Here is the Louisville Courier-Journal report. A quote:
Kernan also expanded the state's "revolving door" policies. Currently, executive branch employees and state agency heads must wait one year before lobbying state officials on an issue with which they had been previously involved.

For example, if the commissioner of the Indiana Department of Environmental Management resigns, he or she can't immediately go to work as an attorney for a company working with that agency.

Kernan's new policy expands that prohibition by banning former senior-level staff of the governor and lieutenant governor and agency heads from contacting state officials about any official action for one year, regardless of the topic.

Another question: What about staff level employees leaving state government and going to work for those their agency has been regulating -- "changing sides" during the course of an enforcement action or similar dispute where they have inside knowledge, for instance? Is this a problem, and is/would it be covered?

The Munster Times has a brief story this morning. A quote: "[T]he changes will affect 35,000 state employees and thousands of state vendor companies and lobbyists. "We are drawing very clear, easy-to-understand lines that will make a real difference," Kernan said.

[More] Here is the link to a Center for Public Integrity report, "Hired Guns," and related information on lobbyists.

Posted by Marcia Oddi on Wednesday, April 28, 2004
Posted to Indiana Law

Tuesday, April 27, 2004

Law - States put delinquent taxpayers names online

"Websites Tattle on Tax Scofflaws," is the headline to this story today in WiredNews.com. A quote:

ATLANTA -- To those for whom civic duty alone is not enough motivation to pay taxes, states are rolling out a new weapon: shame.

A growing number of states are hoping to humiliate delinquent taxpayers by putting their names online. Used in at least 13 states and sporting zingy names like CyberShame [Louisiana] and DelinqNet [Minnesota], the websites are giving state tax collectors a surprisingly useful tool for gathering old taxes.

"We're trying to shame people," said Danny Brazell of the South Carolina Department of Revenue, which attributes $5.5 million in newly collected taxes to its website, Debtor's Corner, started in 2001.

Posted by Marcia Oddi on Tuesday, April 27, 2004
Posted to General Law Related

Indiana Decisions - A slew of Court of Appeals decisions posted today

City of Carmel v. Leeper Electric (3/18/04 IndCtApp) [Reposted, apparently to correct an error in the original posted decision, covered by the 3/18/04 ILB entry]

Fifth Third Bank v. Gloria Stanek (4/26/04 IndCtApp) [Banking; Contracts; Statutory Construction]
Crone, Judge

Stankek's house was burglarized, her safe deposit box key was stolen, and, per the opinion:

That same day, Smith went to Fifth Third and approached Melissa Meyer, a Fifth Third customer service representative. Meyer determined which safe deposit box Smith wished to enter by examining the key. Meyer then retrieved the safe deposit box access card, which listed Stanek and her daughter, Jean Neely, as the only people authorized to access the safe deposit box, but nonetheless gave Smith the card to sign. Smith signed the name “John Stanek” and was allowed access to the safe deposit box. Contrary to Fifth Third’s normal office protocol, Meyer did not ask Smith for identification, nor did she crosscheck the name Smith signed with the list of authorized names on the access card. Smith took most of the contents of the safe deposit box, including the coin collection, and left the bank. * * *

Fifth Third argues that Indiana’s Safe Deposit Box Statute shields it from all liability resulting from the loss, theft, or misappropriation of any property it received from Stanek pursuant to the statute, regardless of its own fault or culpability in the loss. In support of this contention, Fifth Third directs our attention to Indiana Code Section 28-1-11-11 * * *.

Fifth Third argues that under the plain and unambiguous language of this statute, it could not be liable to Stanek. Fifth Third further asserts that courts are not permitted to “judicially construe” an unambiguous statute; and, even if this Court determined that the statute did in fact contain an ambiguity such that “judicial construction” would be proper, the historical and legal background of the enactment of the statute compels a literal application of the statutory language which clearly protects it from any possible liability to Stanek.

Stanek, on the other hand, asserts that the facts contained in her complaint establish that Fifth Third was negligent when it allowed unauthorized access to her safe deposit box. Stanek further asserts that Fifth Third is not entitled to the protection afforded by the Safe Deposit Statute because it failed to act with reasonable care or diligence in ensuring the safety of her property. In support of her argument, Stanek directs our attention to two cases, Welbourn v. Peoples Loan & Trust Co., 152 Ind. App. 337, 283 N.E.2d 544 (1972) and Parke State Bank v. Akers, 659 N.E.2d 1031, 1032 (Ind. 1996). * * *

Welbourn holds that a bank’s due diligence is a prerequisite for it to use the Safe Deposit Box Statute as a shield from liability. Fifth Third argues that Welbourn, the only reported appellate decision to date to specifically interpret the Safe Deposit Box Statute, was incorrectly decided and urges us to reject its reasoning. We might be inclined to consider doing so if our supreme court had not recognized the viability of a breach of contract claim in a similar situation in Parke State Bank. * * *

As stated earlier, a motion for judgment on the pleadings cannot be granted unless it is clear from the face of the complaint that under no circumstances could relief be granted. In light of Parke State Bank, and unless we receive further guidance from our supreme court, we are constrained to find that when, as here, a bank freely negotiates a contract wherein it contractually obligates itself to use reasonable care in the safekeeping of its customers’ property, the Safe Deposit Box Statute does not automatically shield it from all liability. Accordingly, we conclude that the trial court properly denied Fifth Third’s motion for judgment on the pleadings. Affirmed.
MATHIAS, J., and BARNES, J., concur.

Monica Hubbard v. Columbia Women's Hospital, et al. (4/26/04 IndCtApp) [Medical Malpractice]
Bailey, Judge
The trial court was without subject matter jurisdiction to rule upon the merits of a medical malpractice complaint filed before a medical review panel rendered an opinion. Although the Act prescribes a procedure for invoking the subject matter jurisdiction of the trial court for limited purposes pending a medical review panel opinion, Hubbard did not comply with the statutory mandate of anonymity. Accordingly, the trial court properly dismissed Hubbard’s complaint, without prejudice. Affirmed.
RILEY, J., and DARDEN, J., concur.
Northrop Corporation v. General Motors Corporation & Allison Engine Company (4/27/04 IndCtApp) [Evidence]
Darden, Judge
Northrop Corporation, Northrop Aircraft Division, n/k/a Northrop Grumman Corporation ("Northrop"), appeals the trial court's judgment in the amount of $67,669,492.05 in favor of General Motors Corporation and Allison Engine Company, Inc. ("Allison"). * * *

Based on the foregoing, we find and conclude the following:
The trial court did not commit reversible error when it denied Northrop's motion for judgment on the evidence.
There was sufficient evidence presented to the jury and by a preponderance of that evidence, we find no reversible error in the jury's verdicts in favor of Allison on its superior knowledge claim, its defective specifications claim, and its claim for damages due to scope of work changes caused by Northrop's conduct.
There was sufficient evidence presented to the jury and by a preponderance of that evidence, we find no reversible error in the jury's verdict in favor of Allison on its claim for damages due to Northrop's failure to pay for the work Allison performed on the Trailing Edge project.
There was sufficient evidence presented to the jury and by a preponderance of that evidence, we find no reversible error in the jury's denial of Northrop's counterclaim for damages.
We find that pursuant to California Civil Code, Section 3287(a), the trial court did not commit reversible error by awarding Allison prejudgment interest.
SULLIVAN, J., and RILEY, J., concur

Matter of SPH and HPH v. Clay County (4/27/04 IndCtApp) [Family Law]

"[W]e conclude that Hancock’s due process rights were not violated and the evidence is sufficient to support the trial court’s termination of his parent-child relationship."

Herbert Smith, Jr., and Charles Zacek v. Lake County, et al. (4/27/04 IndCtApp) [Civil Procedure]
Mathias, Judge

In this case, the parties clearly felt the need to select a judge, rather than accept normal assignment. The parties were presented with a panel of three judges under the procedure established in Rule 79(F). Each party struck one judge from the panel, and the remaining judge, Judge Dywan, qualified and assumed jurisdiction of the case. By failing to strike Judge Dywan, both parties indicated their belief that Judge Dywan would be fair and impartial in presiding over the case. Moreover, their reasonable expectation was that Judge Dywan, as the duly appointed special judge, would preside over the case. [Instead, Judge Dywan "appointed and designated Jennifer Kalas “to preside as Temporary Judge of said Court pursuant to I.C. 33-13-16-1, et seq., on the 12th day of June, 2003, and hereby fully authorize and empower her to preside as said Temporary Judge of said Court on said day and date in as full and ample manner as I could do myself.”] Accordingly, we conclude that because Judge Dywan qualified and assumed jurisdiction of the case after he was selected as the special judge under the procedure established in Trial Rule 79(F), Judge Dywan was required to preside over the case. This is consistent with common sense and the only discovered Indiana cases of even marginal relevance.

Because the Plaintiffs objected to Temporary Judge Kalas presiding over the case, Judge Kalas lacked jurisdiction to hear and rule on the motions to dismiss. Therefore, Judge Kalas’s July 25, 2003 order is without legal effect and we must dismiss this appeal as premature.

Beth A. Comer-Marquardt & House of Rays, LLC v. A-1 Glassworks, LLC (4/27/04 IndCtApp) [Civil Procedure; Agency]
Barnes, Judge

Interesting case. A sample:

However, we hold there is another basis on which to conclude that the trial court did abuse its discretion in refusing to set aside the default judgment against Rays. Specifically, Rays contends that entry of default judgment against it while the action against Marquardt personally remains unresolved has the potential to lead “to an incongruous result . . . .” We agree. This is because under the doctrine of respondeat superior, a master or principal is chargeable with, and liable for, any tortious act committed by his servant or agent while such servant or agent is acting in the course of his employment and in the line of his duty. See Grzan v. Charter Hosp. of Northwest Indiana, 702 N.E.2d 786, 792 (Ind. Ct. App. 1998). Conversely, if the servant or agent is released of liability, no liability can be imputed to the principal. See id. Thus, it is axiomatic “that a judgment in favor of an employee requires judgment in favor of his employer when the employer’s liability is predicated solely upon the acts of said employee.” Health & Hospital Corp. of Marion County v. Gaither, 272 Ind. 251, 260, 397 N.E.2d 589, 595 (1979).
Romel D. Armstead v. State of Indiana (4/27/04 IndCtApp) [Criminal Law & Procedure; Statutory Construction]
Kirsch, Chief Judge
To obtain a conviction for carjacking, the State had to prove that Armstead knowingly or intentionally took a motor vehicle from another person or from the presence of another person by using or threatening the use of force on any person or by putting someone in fear. IC 35-42-5-2. Armstead argues that Pawlick’s motor scooter is not a “motor vehicle” so that he cannot be guilty of carjacking for taking it. IC 35-41-1-18.5, by way of IC 9-13-2-105(a), defines “motor vehicle” as a vehicle that is self-propelled, except for a farm tractor, an implement of husbandry, or an electric personal assistive mobility device. Here, the evidence at trial showed that Pawlick was operating his motor scooter, driving down a road in Gary, Indiana, when Armstead approached him. Pawlick testified that the motor scooter is motorized, operates on gasoline like a car, and runs at speeds up to forty-five miles per hour. He explained that it does not have pedals and cannot be operated like a standard bicycle. Because Pawlick’s vehicle is self-propelled, we find that it is a motor vehicle within the statutory definition and can be the subject of a carjacking.

Nonetheless, Armstead cites State v. Drubert, 686 N.E.2d 918, 919 (Ind. Ct. App. 1997) in which a panel of this court determined that a moped was not a motor vehicle for purposes of the habitual traffic violator laws. The court relied on the fact that an operator’s license is not required to operate one. However, the term “motor vehicle” is defined differently for purposes of the traffic and criminal penal statutes. For purposes of the traffic laws, the definition of a “motor vehicle” excludes motorized bicycles, two- or three-wheeled vehicle that are propelled by an internal combustion engine or an electric motor, and which operate at not more than twenty-five miles per hour on a flat surface. By contrast, the definition of “motor vehicle” applicable to the criminal code does not exclude motorized bicycles. * * * Affirmed.
NAJAM, J., and RILEY, J., concur.

Linda R. Borth v. Paul W. Borth (4/27/04 IndCtApp) [Family Law]

Dispute over divorced parents' shares of college costs for child. "Mother, however, refused to pay 37% of the cost of Baylor, and instead insisted that her responsibility was capped at 37% of the cost of attending Indiana University."

Antoine Jones v. State of Indiana (4/27/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Najam, Judge

Issue Two: Double Jeopardy. Next, Jones contends, and the State concedes, that his convictions on Count III and IV, possession with intent to deliver and possession within 1,000 feet of school property respectively, violate the “actual evidence test” applied under Article I, Section 14 of the Indiana Constitution. “To show that two challenged offenses constitute the same offense under the actual evidence test, ‘a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). In this case, both Counts III and IV alleged that on October 17, 2002, Jones possessed more than three grams of cocaine. But only two quantities of cocaine were presented as evidence at trial, the 1.75 grams found in Jones’ bedroom and the over 43 grams found inside the bathtub. Thus, we agree that to find Jones guilty of both Counts III and IV, the jury had to rely on the same 43 grams of cocaine to establish the essential element of cocaine possession under both offenses in violation of the actual evidence test.

Although the parties agree that a double jeopardy violation occurred, they dispute the appropriate remedy on remand. In particular, the State directs us to a footnote in a case in which our supreme court noted that some of the defendant’s convictions may violate double jeopardy principles. See Roop v. State, 730 N.E.2d 1267, 1270 n.2 (Ind. 2000). * * *

First, we do not consider the supreme court’s statements in Roop binding because the court did not squarely address the issue presented here, namely, what is the appropriate remedy for a double jeopardy violation. Our supreme court does not decide important questions of law in footnotes. See Molden v. State, 750 N.E.2d 448, 451 (Ind. Ct. App. 2001). The court was merely commenting on an issue not raised by the defendant, and the State reads far too much into the Roop footnote. A double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the “practical effect” of concurrent sentences or by merger after conviction has been entered.

In addition, in Kochersperger v. State, 725 N.E.2d 918, 925-26 (Ind. Ct. App. 2000), we explained that where the trial court had “merged” two offenses, imposed one sentence, but entered judgment of conviction on both offenses, one of the offenses must be vacated to comport with double jeopardy. Here, the trial court entered judgment of conviction on both Count III and Count IV. Therefore, we remand with instructions to the trial court to vacate the judgment of conviction on Count IV. * * *
Affirmed in part, reversed in part, and remanded.
KIRSCH, C.J., and RILEY, J., concur.

Jaye Edwards v. State of Indiana (4/27/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Tuesday, April 27, 2004
Posted to Indiana Decisions

Indiana Law - Indiana/Ohio towns' dispute downgraded to false alarm by Justice Dept.

Re the story covered here in an entry Sunday (scroll down) titled "Dispute between Indiana and Ohio towns brings in Justice Department," today the Richmond Palladium-Item is reporting, in a story headlined "U.S. Justice Department threat downgraded:"

WEST COLLEGE CORNER, Ind. -- A threat by the U.S. Justice Department last month to sue both sides of this two-state town over violations at Indiana's sewage treatment plant has been downgraded to "not urgent," village attorney Harrison Green said. * * *

Neither town had heard from the U.S. Environmental Protection Agency in two years, since it demanded the Ohio village become a joint permit holder with Indiana for the sewage treatment plant. Last fall, the towns signed a new agreement for sewage service that's allowed engineering to begin on needed plant improvements.

One participant is quoted as saying: "There's a war in Iraq and troops in Haiti and they're messing with a little town out in the middle of nowhere."

Posted by Marcia Oddi on Tuesday, April 27, 2004
Posted to Indiana Law

Environment - Falcon chicks hatch

As this story reports this morning in the Indianapolis Star:

Under the gaze of thousands of Internet watchers, the peregrine falcon chicks in Indianapolis' Downtown nest have hatched.

Visible on Falcon Cam at indystar.com, the tiny chicks are mere balls of white fluff right now but will grow fast. By 6 weeks, they will be nearly adult-sized and soon after will take their first flights around Monument Circle.

View the Star Falcon Cam here. The earlier April 19th ILB falcon entry is here.

Posted by Marcia Oddi on Tuesday, April 27, 2004
Posted to Environmental Issues

Monday, April 26, 2004

Indiana Decisions - New 7th Circuit opinions posted

Among the 7th Circuit opinions posted today is JUAREZ v. MENARD, INC., an appeal from the ND Ind, Hammond Division, Judge Lozano. In an opinion affirming the district court, Judge Rovner writes:

Menards, a chain of home improvements stores operates under a business model which combines warehouse with retail store. Customers make their selections from merchandise displayed on lower shelves and excess merchandise is stored on shelves high above. Consequently, employees at Menards often use machinery to load and unload merchandise from high shelves at the same time that customers are shopping in the store.

On January 19, 2002, two Menard employees were stocking doors in the millwork department of a Menards in Schererville, Indiana, when the doors they were stocking onto a high shelf on one side of an aisle pushed up against a steel door perched on a storage shelf high above the adjacent aisle. The steel door fell from its shelf, hitting Maria Juarez, and, according to Juarez, broke four vertebrae in her back, and caused head injuries, blurred vision, and permanent back and neck injuries.

Juarez filed a complaint in the district court invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332, and seeking compensatory and punitive damages for her injuries. * * *

Juarez does not challenge the jury’s verdict awarding her $385,000 in compensatory damages as unsatisfactory, and theoretically at least, she has been made whole by that award. Punitive damages, however, go beyond compensating a tort victim for a cognizable wrong. They are designed to deter and punish wrongful activity, and as such, are quasi-criminal in nature. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003). Under Indiana law, which we must apply in this diversity action, (see Erie R.R. Co. v. Tompkins, 304 U.S 64, 78 (1938)) civil plaintiffs have no right to receive punitive damages. Cheatham, 789 N.E.2d at 472. And, in fact, the Indiana General Assembly has demonstrated a disinclination toward allowing unchecked punitive damages awards by enacting legislation that limits the amount of money a plaintiff may receive from a punitive damages award (Ind. Code § 34-51-3-6) and by requiring that a plaintiff establish the facts warranting an award of punitive damages by clear and convincing evidence rather than the usual preponderance of the evidence standard. Ind. Code § 34-51-3-2. Thus in Indiana, before a court may award punitive damages, a plaintiff must demonstrate by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence or oppressiveness that was not the result of mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. [cites deleted] Moreover, a trier of fact is not required to award punitive damages even after finding all of the facts necessary to justify the award. Cheatham, 789 N.E.2d at 472. The requirements for an award of punitive damages, therefore, go far above and beyond those required for a finding of negligence. Menard does not dispute that it was negligent in allowing this accident to happen. It argues, however, that it did not have the requisite intent needed for an award of punitive damages. * * *

Menard admitted liability for the accident and a jury awarded Juarez $385,000 in compensatory damages for her injuries. The only question presented by this appeal then is whether Menard acted with malice, fraud, gross negligence or oppressiveness which was not the result of mistake of fact or law, honest error or judgment, overzealousness, mere negligence or other human failing. Although Menard’s failure to protect customers from falling merchandise pushed by employees loading stock in an adjacent aisle was, as Menard admits, negligent, it did not constitute the type of willful and wanton or quasi-criminal conduct for which punitive damages may be assessed. Consequently we AFFIRM the decision of the district court.

Access the Indiana Law Blog's June 2, 2003 coverage of the Cheatham decision here and access a pdf version of the opinion here.

Posted by Marcia Oddi on Monday, April 26, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending April 23, 2004

Here is the Indiana Supreme Court's transfer list for the week ending April 23, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Monday, April 26, 2004
Posted to Indiana Transfer Lists

Economic Development - More on the Iron Nugget Plant

More than two weeks have passed since our last iron nugget entry. Here is a story from the Friday, 4/23/04 Mesabi Daily News, reporting on the chair of Minnesota House tax committee:

[Rep.] Abrams distributed an article to floor members that showed how Minnesota�s $16 million investment in Mesabi Nugget technology was heading to Indiana.

Abrams told the representatives, I don't care where you are from, "when you read this stuff and see how we were had, we are all Iron Rangers. One thing that is not in the bill is something dealing with the escalator."

He added, "(The article) said we have been dealt from the bottom of the deck. It isn't right and I felt very compelled to speak out on this issue and bring the plant back to MN where it belongs."

With emotions and passions running high, House members seemed to agree that they wanted Minnesota's technology and natural resources to stay in the state. Abrams said he would not think about a tax rebate until there was stronger commitment from mining companies to open the first plant here. Range legislators said that Abram�s words meant a lot.

Abrams said mining companies have approached him about the high rate of taxes in Minnesota. But, he said, "I don't want to hear about the taxes ... until they have a firm date (for opening a plant)."

Meanwhile, two their representatives:
are in the process of introducing legislation in environmental committees to shorten permitting processes in Hoyt Lakes, since the site has already underwent permitting. The companion bills have been scheduled for hearings next week.

Dill said Abrams' comments on the plant moving to Indiana should help garner support for his environmental legislation in the House, since members would understand why the expedited process is needed.

A widely-published AP story from Saturday reports:
ST. PAUL - Minnesota has made a last-minute push to bring a next-generation taconite-processing plant to the site of the dormant Hoyt Lakes plant on the Iron Range instead of a site in Indiana.

Mesabi Nugget, a consortium formed in 2001 partly with state money, had planned to open its first production plant in Indiana by 2005 because of Minnesota's more-stringent environmental review process.

Minnesota provided $16 million in low-interest loans to Mesabi Nugget, about half of the $30 million in financing originally required to operate the successful pilot plant in Silver Bay.

"We're in discussions about the financial requirements for a plant in Minnesota vs. Indiana," Commissioner Sandy Layman of Iron Range Resources said Friday.

The agency uses taconite taxes to seed redevelopment in northeastern Minnesota. "We're being told that Steel Dynamics of Indiana, a Mesabi investor, would be a major investor in an Indiana plant but less so in Minnesota. So our requirement would be filling the gap with some debt." * * *

Mesabi Nugget had decided to build the first commercial-scale plant in Auburn, Ind., closer to the steel-making furnaces of Steel Dynamics.

That decision has enraged several Iron Range lawmakers.

In a speech on the floor of the state House on Friday, a chief taconite industry advocate at the Legislature said he would no longer work for industry production-tax changes.

Rep. Ron Abrams, R-Minnetonka, sent a warning to the taconite industry and, specifically, to the partners in Mesabi Nugget.

During debate on an omnibus tax bill, Abrams, chairman of the House Tax Committee, said he was angered that it appeared the iron-nugget-production facility would be built in Indiana and not Minnesota.

As for the environmental issues, the story continues:
Indiana, like Minnesota, has a six-month plant-licensing process, but not the more extensive 16-month environmental review on top of that.

Cheryl Corrigan, executive director of the Minnesota Pollution Control Agency, said this week that Minnesota has offered to waive the environmental review period if Mesabi Nugget agrees to permanently retire the antiquated taconite smelter at the dormant Hoyt Lakes plant and refit the facility with next-generation pollution controls.

Mesabi Nugget is expected to make a decision in May. Corrigan said the state would not waive the environmental review at Silver Bay, citing its proximity to Lake Superior. Silver Bay is the preferred site for Mesabi Nugget.

"It gets more expensive if we have to build the plant inland from Silver Bay," Lehtinen said.

Lehtinen said a final decision on Hoyt Lakes is contingent on financing among the Mesabi Nugget partners, expeditious environmental permitting, and further due diligence over whether long-term market conditions are favorable and demand adequate for a plant.

[Update 4/29/04] Another story today in the Duluth News Tribune. Several significant items:
The Minnesota Senate's Environmental Policy Committee gave its approval to a bill that would exempt a full-scale iron nugget production plant from environmental review if its developers build it at the former LTV Mining Co. in Hoyt Lakes. * * *

The Bakk-Dill measure, passed on voice vote in the Senate committee Wednesday, allows existing environmental permits for the closed LTV taconite plant to be used instead of requiring developers to obtain new air and water pollution permits specific to the iron nugget process. The legislation also requires that the facility's existing taconite furnaces be permanently closed. Any attempt to bring them back on line would require a complete environmental review process.

The legislation also requires developers to use the "best available technology" for air pollution prevention. Without the bill, the plant could still be permitted but developers might not be held to those standards or required to close the dirty burning taconite furnaces, said Sandy Layman, commissioner of Iron Range Resources. "This is actually an environmentally friendly proposal because it reduces overall air impacts from the project," she said.

A Minnesota Pollution Control Agency official said it was likely the rotary hearth furnace that would be used to fire the iron nuggets would produce far fewer air pollutants, especially mercury, than the older taconite furnaces. The old taconite furnaces annually pumped an average of 82 pounds of mercury into the air, according to Ann Foss, the agency's major facilities section manager. While air pollution data from an iron nugget pilot plant at Silver Bay was still being analyzed, Foss said she was confident the mercury pollution coming from a full-scale iron nugget facility would be less than what was produced by the old LTV plant.

Posted by Marcia Oddi on Monday, April 26, 2004
Posted to Indiana economic development

Sunday, April 25, 2004

Indiana Law - Dispute between Indiana and Ohio towns brings in Justice Department

"U.S. Justice Department could act against towns - Sewage treatment plant: College Corner boards to meet," is the headline to this story today in the Richmond Palladium-Item. The towns involved are Town of West College Corner, Indiana and Village of College Corner, Ohio. This map shows where the are located, on the Indiana/Ohio border south of US 40/I70 and Richmond. The story reports that:

The U.S. Department of Justice is considering legal action against both sides of this two-state community because of problems with the Indiana side's sewage treatment plant.
The two communities have an interlocal agreement for sewage services, provided by a plant on the Indiana side. In March, according to the story, "attorneys for both towns received letters from Justice ... ordering them to Chicago for an April 8 meeting to discuss the plant's violations. Both attorneys said their towns couldn't afford to pay them to travel to Chicago, town council president Terry Starcher said. [Justice] agreed attorneys could submit the information needed by mail." More:
Two years ago, the federal Environmental Protection Agency notified the towns that it planned to hold both sides responsible for improvements and violations at the community's sewage treatment plant. The EPA ordered College Corner, Ohio, to become a federal permit holder for the sewage treatment plant.

The plant has been in violation of environmental rules since 1996 and has operated under an agreement with the Indiana Department of Environmental Management that required West College Corner to upgrade the plant. Some work has been done, but finishing the project was delayed by a dispute over sewer bills. The dispute traveled through several courts before an interlocal agreement was signed in fall 2003.

Background documents available on the web include this 9/1/903 Palladium-Item story:
LIBERTY, Ind. - Union County Circuit Judge James Williams gave the town councils of West College Corner, Ind., and College Corner, Ohio, a stern warning Wednesday: Produce a written agreement by Tuesday or a mediator will do it for you.

In June, the councils met with mediator Doug Hill for two days and signed a memorandum of understanding. The mediation was to settle the last segment of a seven-year-old lawsuit between the towns over sewage bills and operation of the treatment plant. A memorandum of understanding is legally binding on the parties that sign it. * * *

Attorney Tom O'Connor, who represents West College Corner, told the judge Wednesday that the draft submitted by attorney Harrison Green was "miles" away from the draft that's acceptable to the Indianapolis bond counsel representing West College Corner.

West College Corner is required by the Indiana Department of Environmental Management to improve its sewage treatment plant. To qualify for funding, the town needs an agreement for service with its largest customer, College Corner, Ohio.

If the councils can't produce a document by the deadline, the mediator will return with a word processor and write one, Williams said. * * *

At issue is a $3.2 million counterclaim filed in 1999 by College Corner, Ohio, against West College Corner for damages relating to the sewer service. West College Corner first sued the Ohio village in 1996 over its unpaid sewer bills. The 1996 suit was settled through facilitators working with the councils in 2000.

The case has been in Union Circuit Court, U.S. District Court, Wayne Circuit Court and the Indiana Court of Appeals, which returned it to Union Circuit Court.

Here is the Indiana Court of Appeals decision of 4/23/02.

Posted by Marcia Oddi on Sunday, April 25, 2004
Posted to Indiana Law

Law - Chaney case tests separation of powers

Another excellent Linda Greenhouse analysis piece today in the NY Times. She begins:

The Bush administration's effort before the Supreme Court to shield the names of private citizens who helped devise its energy policy might appear on the surface unrelated to its defense, in cases also before the court, of the detention of those the administration has classified as enemy combatants. But the legal arguments are strikingly similar, projecting a vision of presidential power in both war and peace as far-reaching as any the court has seen and posing important questions of the constitutional separation of powers.
The admiistration is arguing that the 1972 Federal Advisory Committee Act:
is "plainly unconstitutional" in authorizing "unwarranted intrusion" and "extreme interference" with the president's exercise of his "core" constitutional responsibilities.

"Congress does not have the power to inhibit, confine or control the process through which the president formulates the legislative measures he proposes or the administrative actions he orders," Solicitor General Theodore B. Olson's brief asserts. * * *

Federal advisory committees are extremely common in the government; there are now 947, according to the General Services Administration. The Federal Advisory Committee Act imposes a number of obligations on these committees: they must hold their meetings in public, make their records accessible and have a membership that is "fairly balanced." The president must explain the actions he takes in response to a committee's recommendations.

The statute exempts any advice-giving group "composed wholly of full-time, or permanent part-time, officers or employees of the federal government." Since all members of the Cheney task force, formally called the National Energy Policy Development Group, are federal employees, the administration maintains that the law simply does not apply.

But in 1993, ruling in a suit seeking access to information about Hillary Rodham Clinton's health care task force, the federal appeals court here held that private citizens, through close participation, could be deemed "de facto members" of a committee and bring the committee within the law's coverage.

Applying that precedent to the Cheney case, the district court ruled in 2002 that Judicial Watch and the Sierra Club were entitled to pretrial discovery sufficient to determine whether the energy task force included any such members. * * * The administration is arguing that the "de facto member doctrine" was never intended by Congress and should be rejected by the Supreme Court. Its brief says the doctrine turns the statute "into a general warrant to search executive branch groups and committees for contacts with outsiders who might be deemed de facto members," and that this interferes with the president's ability to obtain the advice he needs to perform his constitutional duties.

Here is a link to the July 8, 2003 decision of the USCA for the DC Circuit in the case of In re Cheney, and here is a link to the FindLaw.com site collecting all of the documents in this case, including a number of district court rulings -- scroll down to Tuesday, April 27th, about 2/3 down the page.

The 1993 Hilary Clinton health care task force ruling mentioned in the Greenhouse article and cited in the July 8th Court of Appeals opinion is Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902-03 (D.C. Cir. 1993).

Posted by Marcia Oddi on Sunday, April 25, 2004
Posted to General Law Related

Environment - Disposal of coal ash in strip mines questioned

"EPA will review coal ash disposal: Southwest Indiana residents ask agency to rule on putting waste back into mines," is the headline to this front-page story this morning in the Indianapolis Star. The lead:

Trucks rolling through the hills of southwest Indiana are hauling more than just coal from strip mines to power plants. They're also returning with the ash left after the coal is burned, dumping it into the deep pits that pockmark the landscape.

It's a practice gaining popularity across the country as a way to dispose of millions of tons of waste generated by power plants. And it's at the heart of a dispute that's been simmering in Indiana for 16 years.

Environmentalists and residents fear heavy metals -- including arsenic, lead and cadmium -- that concentrate in the ash eventually will pollute drinking-water supplies. That is because minefill areas lack the same safeguards as landfills, such as liners and long-term groundwater monitoring. * * *

Mine and utility owners and some state officials say coal ash is safe when put in mines, and helps refill and speed mines' restoration, allowing them to be returned to wildlife areas and cropland. In Indiana, the Department of Environmental Management regulates landfills, but a 1988 Indiana law says the agency cannot adopt environmental rules for mines. Instead, mines are regulated by the Department of Natural Resources.

And the difference in standards adopted by the agencies creates unequal protection for residents, said Brian Wright, coal policy advisor at the Hoosier Environmental Council.

"We want the same standards (for mines as) you'd find at a municipal waste site," Wright said. "There is a different standard for (protecting) southwest Indiana citizens' water."

That's why federal regulations are needed, Wright and others say.

The story reports that EPA says that right now "there's no proof that coal ash dumped in mines has polluted groundwater that then migrated offsite in Indiana or elsewhere" and a study is needed. More:
But activists say there is plenty of proof that it has polluted groundwater inside the mines -- which means it eventually could move and contaminate drinking water outside of the mine boundaries. They also say there is proof that groundwater contaminated by coal ash is bubbling up into rivers and streams.

One case in Indiana in which water was tainted by coal ash did not involve a mine, but a landfill near Lake Michigan. Hundreds of residents in Town of Pines in northwest Indiana were connected to water lines run from Michigan City after their wells were contaminated by compounds linked to an old coal ash landfill.

This past Thursday the Indiana Law Blog posted an entry on the Town of Pines groundwater contamination. Access it here, or simply scroll down.

Today's Star article on SW Indiana concludes:

But even regulators and industry officials say they are ready for the federal agency to make a decision.

"I'm not a proponent that they [US EPA] do rules or don't do rules; I'm asking them to make some decision," said Nathan Noland, president of the Indiana Coal Council. "We have neighbors around our mines that have been scared half to death by some in the environmental community, and they deserve an answer from the EPA."

[Update 4/26/04] The Evansville Courier-Press reported yesterday here that: "State officials are defending Indiana's policies for protecting the environment and public health from the contamination of buried waste from power plants."

Posted by Marcia Oddi on Sunday, April 25, 2004
Posted to Environmental Issues

Law - Concord Law School, fully online

"Forget Socrates" is the title of this story today by Adam Liptak in a special Education Supplement to the NY Times about Concord Law School. Some quotes:

The school has no buildings or library, and its 1,600 students listen to lectures, attend discussion groups, have ''teas'' with the dean, hang out in the student lounge, take exams and submit essays entirely online. After four years of this, they are eligible to take the bar examination in California. * * *

[Concord] does not use the Socratic method of calling on students at random to recite the facts and reasoning of cases under discussion. Many students find the method terrifying. ''Quite frankly,'' said Jack R. Goetz, Concord's dean, ''the Socratic method as typically employed in American law school is probably not the best way to educate people. We have a more nurturing atmosphere.'' * * *

Though both conventional and correspondence law schools now offer virtual classes, Concord says it believes that it remains the only fully online law school in the United States. Founded in 1998, it is among the largest law schools in the country. Thirty-three students entered its first class. The numbers have grown each year, and 916 students started last year.

The profession and other law schools appear threatened by the whole concept, and the American Bar Association has declined to consider an online law school for accreditation, which would be necessary for its students to take the bar in any state except California. But California, which has long allowed correspondence school graduates to take its exam, has reciprocity agreements that would let its lawyers practice in some other states.

John A. Sebert, a bar association official, says it has no plans to accredit a completely virtual law school, though it has recently allowed traditional law schools to offer limited online courses. ''We're training professionals who deal with people as problem solvers who need skills of negotiation, counseling and advocacy,'' he said. ''Most of us find it difficult to believe that that kind of training can be done solely in an online atmosphere.''

THE bar association's motives may not be entirely pure. The legal profession has long acted as a guild, restricting competition in the name of maintaining standards.

''The bar is a carefully protected monopoly,'' said Robert E. Oliphant, a professor at William Mitchell College of Law in St. Paul. ''You bring in something like Concord and accredit it and you threaten a lot of other law schools that are marginal.''

The article reports that Concord teaches "black letter law" while "professors at elite schools are less apt to take existing law at face value. They question the policies behind legal doctrines and tease out inconsistencies in judges' decisions. Professor Berman-Barrett was intent, instead, on drilling key concepts into her students, by repetition and encouragement. Her class was reminiscent of the bar review course that she sometimes teaches." More from later in the article:
Deborah L. Rhode, a law professor at Stanford who writes on the legal profession, believes that Concord may serve an important role.

''For many routine services where unmet needs are greatest, three years of on-site education is neither necessary nor sufficient to provide competent training,'' Professor Rhode said. ''Most law schools do not provide the detailed expertise and specialized training in form preparation and procedural rules that is necessary in areas like uncontested divorces, immigration, bankruptcy and routine real estate matters.''

''Online distance education,'' she added, ''may be a more cost-effective way to provide certain basic training, and could make legal careers accessible to those of limited means who are now priced out of legal education or forced to incur crippling debt burdens.''

Here is the Concord Law School web site.

This NY Times Education Section also contains several other interesting articles, including The Digital Doctorate and The B-School Hierarchy.

Posted by Marcia Oddi on Sunday, April 25, 2004
Posted to General Law Related

Not law but interesting - Rumsfeld/Woodward interview transcripts

A comment on C-Span this morning pointed me to this story today in the NY Times based upon information from Donald Rumfeld's release of the transcripts of his interviews with Bob Woodward. This interests me, not necessarily politically, but because it gives insight into a reporter's techniques. From the NY Tmes story:

BOB WOODWARD has yet to write a how-to guide like "The Seven Secrets to Secret Sources" or "Interview Styles of the Great and Powerful," but a few tips are now available thanks to the Pentagon's release of transcripts of his interviews with Defense Secretary Donald H. Rumsfeld. An analysis reveals some techniques of the well-connected journalist.

Nod frequently. To get ahead, Mr. Woodward repeatedly offers Mr. Rumsfeld encouragements like "I agree," "Well said," "That's great," "Thank God," "No question," "I am totally in sync with you on that" and "I totally understand exactly what you're saying." When Mr. Rumsfeld mentions the "enormous numbers of hours" spent by Mr. Bush deciding on the war, Mr. Woodward replies: "It's an exercise in patience, not impatience. Would you agree withthat?" He gets no quarrel.

Praise his boss. "Whether you like what the president did or don't like it, it is one of the gutsiest calls in history," Mr. Woodward says, alluding to the decision to go to war. He marvels at the many briefings of Mr. Bush and says, "He really had his hands in it, didn't he?" Mr. Rumsfeld adds his own dollops, telling how he and his wife "invariably" return from an evening at the White House and say, "Isn't that just a delight to be working with a person who is that way, who is that straightforward, that open, that comfortable with himself, that rooted — that has the confidence, courage, I guess the words you've used."

Drop names. Mr. Woodward keeps reminding Mr. Rumsfeld of all the people he has already interviewed, like Tommy Franks, the commander of the war: "I spent four hours with General Franks, which someone said is 10 times more than he spent with anyone else."

When all else fails, drop the big one. After listening to Mr. Rumsfeld complain about his questions, Mr. Woodward resorts to the classic I'll-tell-the-teacher technique. "I have a good relationship with President Bush," he says, "and he wants me to do this, I think, as you know."

And here are the transcipts themselves, from the Department of Defense webpage on the Secretary's "media activity." Here are direct links to the 10/23/03 transcript, and the 9/20/03 transcript.

It looks like Scott Purdum of the Times first picked up on this on April 20th, the day after the transcripts were posted. A quote from the Purdum story: "Because the transcripts show not only Mr. Rumsfeld's answers, but also Mr. Woodward's questions, they amount to a vicarious glimpse at a reporting style that blends flattery and silken intimidation with unparalleled access."

In his column "White House Briefing," Dan Froomkin of the Washington Post wrote on Wednesday about the DOD transcripts:

But even more revelatory is the fact that someone over there deleted some of the most important bits! Apparently, part of the experience of being interviewed with Woodward is having some regrets afterward.

Mike Allen writes in The Washington Post today: "The Pentagon deleted from a public transcript a statement Defense Secretary Donald H. Rumsfeld made to author Bob Woodward suggesting that the administration gave Saudi Arabia a two-month heads-up that President Bush had decided to invade Iraq. . . .

"Woodward supplied his own transcript showing that Rumsfeld told him on Oct. 23, 2003: 'I remember meeting with the vice president and I think Dick Myers and I met with a foreign dignitary at one point and looked him in the eye and said you can count on this. In other words, at some point we had had enough of a signal from the president that we were able to look a foreign dignitary in the eye and say you can take that to the bank this is going to happen.' " * * *

The Post helpfully reprints, from Woodward's transcript of the on-the-record interview, some of the missing bits.

Access the "missing bits" here.

Posted by Marcia Oddi on Sunday, April 25, 2004
Posted to General News

Saturday, April 24, 2004

Law - HIPAA privacy requirements and the church

"When Calls for Prayer Trample Personal Privacy: Disclosing Details of Members' Health Could Pose Legal Problem for Churches," is the title of a very interesting story today in the Washington Post. An example from the article:

[A]n April 2000 article posted on the Web site of Fairmount Presbyterian Church in Cleveland heralded the minister of music's return from an illness:

"We have good news for you!" the article read. "Bryan Mitnaul is returning to Fairmount after a long medical leave of absence.

"Since the summer of last year, Bryan has been treated for bi-polar illness, a condition which at time has resulted in serious depression for him. Various therapies and medications have been tried, and finally, after much experimentation, his health has improved considerably. For that we are all very happy."

The Post story continues:
The church's comments, no matter how well-intentioned, crossed a line that should be a warning to any religious group that shares members' medical information in newsletters and during worship services, several ministers and specialists said.

Legally, publishing details of Mitnaul's condition without his permission was an invasion of privacy because it "included information in a way that would be highly offensive to the ordinary person," said Richard Hammar, general counsel for the Missouri-based Assemblies of God and publisher of Church Law & Tax Report, a national bimonthly newsletter.

Some conditions carry more of a stigma than others, and mental illness is one of them, Hammar said. Saying a person is recovering from a heart attack or being treated for cancer is "much less offensive," he said.

That's the way an Ohio appeals court ruled in 2002, citing invasion of privacy in sending the case back to a lower court that had issued a summary judgment favoring the church.

The case referenced is Mitnaul v. Fairmount Presbyterian Church, available here. More from the Post article:
Commonly referred to as HIPAA, the law called for broad protection of patient confidentiality rights and primarily applies to doctors, pharmacies and health care organizations. But the new law made it more difficult to visit members in the hospital, especially if the patient had failed to sign a consent form for such visits, and many clergy and laypeople worried that the law would restrict how they announced members' illnesses on prayer lists and in newsletters.

In February, the General Council on Finance and Administration of the United Methodist Church posted a 13-page memorandum on its Web site in an effort to clarify how HIPAA affects local churches. It cited Mitnaul v. Fairmount Presbyterian Church, not as an example of how the law might apply to religious communities but how the principle behind the law does.

"Obviously, this was an unfortunate case where well-meaning people unintentionally exposed their church to legal liability," the document states. "While this case does not involve the HIPAA privacy rule, it illustrates very clearly many of the issues churches need to consider whenever they disclose health related information about an individual."

Here is a link to the 13-page memorandum on the HIPAA priacy rule and local churches.

The Post also has a sidebar story titled "Law Prompts New Guidelines," available here. The Post also provides a link to guidelines from Health Ministries of the Presbyterian Church, which itself has additional links.

Posted by Marcia Oddi on Saturday, April 24, 2004
Posted to General Law Related

Friday, April 23, 2004

Law - Text book arbitrage and drug arbitrage

Last October, the NY Times published an article headlined "Students Find $100 Textbooks Cost $50, Purchased Overseas." It is no longer freely available, but here is the Times abstract:

American college students find that their textbooks cost far less overseas than they do in United States; more and more individual students and college bookstores are ordering textbooks from abroad; National Assn of College Bookstores has written to all leading publishers asking them to end practice they see as unfair to American students; publishing industry defends its pricing policies, saying foreign sales would be impossible if book prices were not pegged to local market conditions; textbook publishers have tried to block reimporting of American texts from overseas; Supreme Court ruled in 1998 that federal copyright law does not protect American manufacturers from having products they arrange to sell overseas at discount shipped back for sale in US; photo; chart (M)
Here is a link to a tool that "lets you search for a book on Amazon, and then compare prices across Amazon's UK, Germany, Canadien, and Japanese sites, including in shipping costs."

I recalled the above when I read this article in Forbes earlier this month on pharmaceutical arbitrage and this article yesterday in the San Diego Union-Tribune headlined "Are drug imports good medicine?"

Posted by Marcia Oddi on Friday, April 23, 2004
Posted to General Law Related

Indiana Decisions - Among today's 7th Circuit rulings posted

In VOELKER, FRANK T. v. NOLEN, CATHERINE, a per curiam opinion of the panel affirms Judge Hamilton's (SD Ind.) dismissal of tax protestor Frank Voelker's suit claiming that three Internal Revenue Service agents violated his due process rights. The district court dismissed the suit for lack of subject matter jurisdiction, determining that the case should have been brought in the United States Tax Court.

The 19-page USA v. SNOOK, RONALD opinion, by Judge Rovner, deals with Clean Water Act violations:

A jury found Ronald Snook guilty of one count of conspiring to defraud the federal government by violating the Clean Water Act, 18 U.S.C. § 371, 33 U.S.C. §§ 1317(d) and 1319(c)(2)(A), and five counts of concealing material information regarding a matter within the jurisdiction of the federal government, 18 U.S.C. § 1001(a)(1). He was sentenced to concurrent terms of 21 months’ imprisonment, concurrent terms of two years of supervised release, a $1,000 fine, and $600 in special assessments. On appeal he challenges two evidentiary rulings, allegedly improper statements by the prosecution during closing arguments, and a two level increase in his offense level for abusing a position of trust, U.S.S.G. § 3B1.3. We affirm in all respects.

Posted by Marcia Oddi on Friday, April 23, 2004
Posted to Indiana Decisions

Indiana Decisions - Hearing on Lake County Criminal Court Judge Joan Kouros

"Panel to decide judge's fate - JOAN KOUROS HEARING: Peer says Kouros' job too big a task for her," is the headline to this story today in the Munster NWI Times.

Here is the Sept. 26, 2003 announcement: "Judicial Commission Files Charges Against Judge Kouros."

[More] Here is an AP story just posted on the IndyStar.com site.

Posted by Marcia Oddi on Friday, April 23, 2004
Posted to Indiana Decisions

Law - Refusal to provide photo may doom Amish man's immigration

Here here the facts as set out in a NT Times story yesterday:

Mr. Zehr, 29, is from an Amish community in southern Ontario. He married in June 2001, and he and his wife, Ruth Ann, moved to rural Clarion County, Pa., to live near her family. In February 2002, the couple filed papers with the federal government to obtain permanent resident status for Mr. Zehr. But their applications were denied because both had refused to submit photographs.

Last fall, the Department of Homeland Security began deportation proceedings against Mr. Zehr. Despite those proceedings, he returned to Canada last December to visit his father, who had suffered a heart attack. Mr. Zehr was told by immigration officials that he could not return to the United States because he did not have photo identification. But on April 1, he was granted temporary "parole" into the country. That status has expired.

In the lawsuit, Mr. Zehr's lawyers argues that the government was violating his First Amendment right to freedom of religion by requiring him to submit a photograph. But Ms. Buchanan asserted that Mr. Zehr does not have First Amendment rights because he was never officially "admitted" into the country, only paroled, which is a more provisional status.

A district court judge in Pittsburgh ruled Wednesday that Zehr could be deported any time. Yesterday he appealed to the USCA for the 3rd Circuit. Here is an NPR story.

According to a story today in the Atlanta Journal Constitution, "A federal appeals court on Thursday refused a request to keep a Canadian Amish man in the United States while he challenges a law requiring his photo be taken." However, I could not access the story itself without providing the following fields in addition to my name and email address, so I elected to not cover stories in the Atlanta Journal Constitution:

• Password Hint is required.
• Gender is required.
• Primary Phone is required.
• Home Address Line is required.
• Home City is required.
• Zip Code is required.
• Home State is required.
• Paper Usage is required.
• Household Income is required.
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[More] Here is a Washington Post/AP report on the 3rd Circuit refusal Thursday to hear an emeregency appeal. [link via How Appealing]

Posted by Marcia Oddi on Friday, April 23, 2004
Posted to General Law Related

Environment - Inspired solution helps both Chicago and East Peoria

This "don't miss" story from yesterday's NY Times begins:

CHICAGO, April 21 — Chicago needed mud, and East Peoria, Ill., needed to get rid of it.

If the elegant (albeit muddy) solution seems obvious now, remember: these cities are 165 miles apart, and, like most cities, neither had ever devoted much time to pondering the other's problem.

Chicago's 570 acre US Steel South Works plant was covered with slag, a steel-making byproduct which anyone who has lived near Lake Michigan recognizes immediately, it is kind of like rough lightweight cinders, with an unpleasant odor. More from the story:
So when United States Steel and city officials began dreaming several years ago of ways to turn the famed old mill into a new development — perhaps with businesses, homes, roads and parks — the slag posed a problem. How exactly would one set a grassy park on slag, where grass will not grow?

In East Peoria, meanwhile, an entirely different question was being asked. More and more sediment was accumulating on the beds of Upper and Lower Peoria Lakes, thanks in part to the development of a navigational channel in the Illinois River, which runs through the lakes. * * * But where exactly would one throw away all this muddy sediment, especially given the high prices of disposal?

That was where John C. Marlin, a scientist so curious about mud that he has taken hundreds of photographs of it (wet, dry, cracked, caked), stepped forward. Dr. Marlin, a senior scientist in the waste management and research center of the Illinois Department of Natural Resources, has been fascinated with silt and sediment for more than three decades. * * *

For at least the next six weeks, barges loaded with mud from the bottom of Lower Peoria Lake will make the 165-mile, two-day journey to the edge of Lake Michigan. There, hundreds of truckloads of mud will be dumped on the slag-covered land. And by summer, Dr. Marlin said, grass will grow on the acres meant to become a city park. Seventy barges will make the trip, each with 1,500 tons of mud. In the end, more than 100,000 tons of mud will frost the top of this land.

The mud is safe, the federal Environmental Protection Agency reported after reviewing core samples from the lakes. And most of a $2 million grant from the state is paying to transport it — a deal, in the eyes of Chicago officials who needed clean dirt and East Peoria officials who did not.

The best quote: "We needed good quality soil," said Mayor Richard M. Daley, "and basically this solves two environmental problems, one urban and one rural."

Posted by Marcia Oddi on Friday, April 23, 2004
Posted to Environmental Issues

Thursday, April 22, 2004

Indiana Law - Voting system required to undergo audit

Updating yesterday's ILB entry titled "Marion County Clerk raises issues about Omaha-based electronic voting machine company," is a brief story just posted on the IndyStar.com website, reporting that:

Election Systems & Software, the company that provides Marion County with its voting equipment, must conduct a system-wide audit before the May 4 primary to ensure that all of its products are legal.

The independent audit, which the company has agreed to pay for, was required today by the Marion Election Board following allegations that the Omaha-based company distributed illegal software used by Indianapolis voters last year.

[More] Here is a much longer, updated Star story.

[Update 4/26/04] Here is an AP story from 4/24/04 that begins:

SAN JOSE, Calif. -- A growing number of federal and state legislators are expressing doubts about the integrity of the ATM-like electronic voting machines that at least 50 million Americans will use to cast their ballots in November.

Computer scientists have long criticized the so-called touchscreen machines as not being much more reliable than home computers, which can crash, malfunction and fall prey to hackers and viruses.

Now, a series of failures in primaries across the nation has shaken confidence in the technology installed at thousands of precincts. Despite reassurances from the machines' makers, at least 20 states have introduced legislation requiring a paper record of every vote cast.

Posted by Marcia Oddi on Thursday, April 22, 2004
Posted to Indiana Law

Indiana Decisions - Three Court of Appeals opinions posted today

Michael Dicen v. New Sesco, Inc. (4/22/04 IndCtApp) [Employment Law; Contracts]
Sullivan, Judge

In reviewing the non-competition provisions of the employment agreement, the Court here finds that "the geographic scope of the non-competition covenant contained in the Employment Agreement is overbroad and unreasonable as a matter of law and cannot therefore be enforced." More:

Here, we are unable to strike these offending provisions and enforce the contract as so modified. If we “blue pencil” the offending provision of the Employment Agreement, the result would be no geographic limitation whatsoever. This would be broader than the stricken limitation. We cannot limit the geographic scope of this covenant without impermissibly adding terms to the agreement. Thus, the non-competition provisions of the Employment Agreement are unenforceable.
Re the covenant not to compete in the purchase agreement, the Court finds:
To determine whether a covenant not to compete ancillary to the sale of the business is overbroad, we apply the following three-part test: (1) whether the covenant is broader than necessary for the protection of the covenantee in some legitimate interest; (2) the effect of the covenant upon the covenantor; and (3) the effect of the covenant upon the public interest. The ultimate concern is whether the covenant is reasonable as to the covenantee and whether it is reasonable as to time, space, and the activity restricted. * * * In situations involving a covenant not to compete contained in an employment contract, the lack of a geographic limitation renders the covenant presumptively void. In covenants ancillary to the sale of a business, courts are “more indulgent” regarding the reasonableness of geographic limitations. * * * We hereby modify the covenant to prohibit Dicen from soliciting past, present, and prospective customers of New Sesco as we have defined those terms. We also modify the covenant to prohibit Dicen from competing with New Sesco only in the area of business which was sold by Dicen and the other shareholders, i.e. primarily air-stack testing and environmental consulting. Thus, the covenant will operate only in the limited geographic area to which Dicen’s activities at New Sesco were limited. The covenant as so modified will not place an undue hardship upon Dicen compared to the potential harm posed to New Sesco.
Re Dicen's "claims that the trial court erred in concluding that New Sesco’s customers’ names, addresses, needs, and histories are trade secrets entitled to protection, and that those portions of the preliminary injunction restricting his use of such information are erroneous," the Court agreed. Finally:
Conclusion. In conclusion, the covenant not to compete contained in the Employment Agreement is unenforceable for lack of geographic limitation, and the covenant not to compete contained in the Purchase Agreement is enforceable as modified by this court. This requires us to remand this cause to the trial court to modify the preliminary injunction accordingly. We reverse the preliminary injunction order to the extent that it concludes that New Sesco has demonstrated a reasonable likelihood of success upon its IUTSA claim. The trial court did not err in the consideration of what Dicen claims to be parol evidence, nor did it err in excluding evidence regarding New Sesco’s allegedly unclean hands. Lastly, although Dicen has failed to demonstrate that trial court improperly set the injunction bond, it may be necessary to re-evaluate the bond amount upon remand.
The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings not inconsistent with this opinion.
ROBB, J., and BROOK, Sr.J., concur.
Sandra K. Kelley, Ph.D. v. Vigo County School Corporation (4/22/04 IndCtApp) [Civil Procedure; Attorney Fees]

Donna Greenfield, Personal Representative of the Estate of Kelly R. Mossbarger, and Donna Greenfield, personally, v. Allstate Personal Property and Casualty a/k/a Allstate Insurance Company and the Estate of David R. Light (4/22/04 IndCtApp) [Insurance]
Robb, Judge

Greenfield urges us to reconsider the holdings of Whitledge and Jones, arguing that recent decisions have begun to move away from the logic behind these decisions. She cites Corr v. American Family Ins., 767 N.E.2d 535 (Ind. 2002). In Corr, the issue was whether, in determining if a vehicle was an underinsured motor vehicle within the meaning of [IC] 27-7-5-4(b), the proper comparison was the per accident bodily injury limits, or the amounts received by each insured and the underinsured motorist limits. The court determined that the term “available for payment to the insured,” when describing the coverage limits in the statute, meant money present or ready for immediate use by the insured and not the amounts potentially available. Therefore, the court held that the statute did not require a strict limits to limits comparison.

In Corr, our supreme court was interpreting language which was “not as clear as it might be.” In the present case, the controlling language is clear and unambiguous. An uninsured motor vehicle is a “motor vehicle without liability insurance.” Therefore, Corr is not instructive. Rather, following the holdings of Whitledge and Jones, we agree with Allstate that the policy does not provide liability insurance for an uninsured motorist operating an insured motor vehicle.

Alternatively, Greenfield argues that such a result is contrary to public policy by failing to allow recompense to those injured by those with no insurance. This argument was also presented to this court in Whitledge and this court rejected the argument, stating:

Whitledge further contends that the trial court erred in upholding an insurance clause which is void as against public policy. I.C. § 27-7-5-2 mandates insurers to make available uninsured motorist insurance in their liability policies. The purpose of uninsured motorist coverage is to put the injured insured party in substantially the same position as if the offending party had complied with the minimum requirements of the Financial Responsibility Act. Any language in the insurance policy which limits or diminishes the protection required by statute is contrary to public policy. The statute is violated when the policy specifically limits uninsured motorist coverage as to persons who would otherwise qualify as insureds for liability purposes. Whitledge contends that West American’s policy violates this principal.

Whitledge would not have qualified for liability coverage. The West American policy contains an exclusion which states that the policy does not provide liability coverage for any person for bodily injury to the policyholder or any family member. The family exclusion clause was upheld in Transamerica Insurance Co. v. Henry (1990), Ind., 563 N.E.2d 1265, where the court found that the exclusion did not violate the Indiana uninsured motorist statute or the policy of the state. We do not find that the trial court erred in entering summary judgment in favor of West American.

Likewise here, Light would not have qualified for liability coverage under the Allstate policy for the death of Mossbarger. Light was not a permissive user of the vehicle and therefore, there is no coverage for any claim against Light in this case because he was not an insured under the terms of Allstate’s policy. The policy clearly states that a person is an insured if they are a person using the vehicle with “your permission.” The policy defines “your” as the policyholder named on the declaration page – here, Greenfield – and that policyholder’s resident spouse – here, David. The undisputed evidence is that Light did not have Greenfield’s or David’s permission to operate the Sunfire. See United Farm Bureau Mut. Ins. v. Ludwig, 744 N.E.2d 1061, 1063 (Ind. Ct. App. 2001) (holding, as a matter of law, that an insurance policy provides no liability coverage for a driver operating the vehicle without the permission of the insureds). Therefore, there was no coverage. * * *

Conclusion. Following our prior decisions in Whitledge and Jones, we hold that the Allstate policy does not provide liability insurance for an uninsured motorist operating an insured vehicle. Additionally, Greenfield has not convinced this court that this holding is contrary to public policy. Therefore, the trial court’s granting of Allstate’s Motion for Summary Judgment is affirmed.
SHARPNACK, J., and DARDEN, J., concur.

Posted by Marcia Oddi on Thursday, April 22, 2004
Posted to Indiana Decisions

Indiana Decisions - Several 7th Circuit Rulings Posted

Among the U.S.C.A. for the 7th Circuit decisions posted today are TAYLOR, DONNA T. v. CAVALRY INVESTMENT, an opinion by Judge Posner relating to the application of the requirement of the Fair Debt Collection Practices Act that any dunning letter by a debt collector state “the amount of the debt” that he’s trying to collect.

An opinion by Judge Evans, M., A. v. BUTLER, JERRY, deals with an attorney reprimand:

In our March 2, 2004, decision resolving this case, we reprimanded attorney Lisa A. Hoffman for failing to include, in an appendix to her main brief (or in a separate appendix), the opinion of the Appellate Court of Illinois which was the centerpiece of this appeal. Including that opinion in the brief was required by Circuit Rule 30. Our decision went on to ask attorney Hoffman to show cause “why she should not be fined $1,000 . . . .” She has filed a timely response to our order. * * *

An intent to deceive the court is not a precondition to imposing a monetary sanction against an attorney for violating Rule 30, but its absence is certainly a factor we consider, along with others, in deciding how best to proceed. In that regard, we are convinced that Ms. Hoffman did not willfully omit including the Illinois Appellate Court opinion from her brief. The fact that the omission was not willful also means, of course, that it didn’t occur for any deceptive or strategic purpose. Furthermore, we note that Ms. Hoffman has no record of violating court rules and has, in fact, performed capably in other cases. * * *

For these reasons, we chalk up the violation of Rule 30 in this case to a simple mistake. Although our original opinion still stands as a public censure, a fine of $1,000, or some lesser amount, is not, in our view, necessary to make amends for Ms. Hoffman’s error. The order to show cause is DISCHARGED.

In LOCAL 1001 v. LABORERS' INT'L UNION, Judge Easterbrook writes:
The Laborers’ International Union sought to put its Local 1001 into trusteeship. Authority to approve trusteeships is vested in an independent hearing officer as a result of a consent decree settling a racketeering suit by the United States. See Serpico v. Laborers’ International Union, 97 F.3d 995 (7th Cir. 1996). Concluding that the Local’s leadership had been infiltrated by organized crime, was engaged in financial mischief, and had undermined the Local’s democratic processes, the independent hearing officer imposed a trusteeship. After the Trustee assumed control, the law firms that had previously represented the Local filed a suit—in the name of the Local rather than of the ousted officers— in state court. The Trustee promptly fired the law firms (Winston & Strawn LLP and Faraci & Faraci) and directed them to take no further action in the Local’s name * * *.

Still purporting to act for the Local, the law firms filed two motions: first for a remand * * * and second (in the event the first should be denied) for a temporary restraining order that would block the Trustee from exercising any authority over the Local. * * *

[But] the two law firms have no business purporting to speak on behalf of Local 1001. Both the notice of appeal (No. 04-1654) and the petition for leave to appeal (No. 04-8006) have been filed against express instructions of the litigant purportedly represented. * * *

These law firms have no responsibility at all, fiduciary or otherwise, for they have been sacked. Clients may dismiss their attorneys for any reason, good or bad, and a fired lawyer has no entitlement—certainly no “fiduciary duty”—to continue acting on the ex-client’s behalf. * * *

What is more, lawyers are obliged not to oppose or otherwise undermine their ex-client’s legal position, and they must not reveal confidences they may have received during the course of the representation. See Restatement §45(2). These two law firms, by purporting to act on behalf of a client that has discharged them, and by opposing in court the position their ex-client has taken on a matter within the scope of the representation, may well have violated several disciplinary rules.

Posted by Marcia Oddi on Thursday, April 22, 2004
Posted to Indiana Decisions

Indiana Decisions - Tax Court ruling could be costly to Indiana casinos

An Indiana Tax Court decision reported here in the Indiana Law Blog on Tuesday, April 20th (it is the last in the list), Aztar Indiana Gaming Corporation v. Indiana Department of State Revenue (4/19/04 IndTaxCt), could "force the state's 10 casinos to pay an additional $200 million in taxes, industry officials said," as reported in this AP story today. More:

The tax court ruled this week that Aztar Corp., which operates Evansville's riverboat, was not entitled to deduct wagering taxes from its state income tax bill.

The state's other gaming companies have claimed the same deduction, said Mike Smith, executive director of the Indiana Casino Association.

The ruling would force Aztar to pay an additional $17.3 million in state taxes covering the years 1995 through 2004.

Aztar officials said they intend to appeal Tuesday's ruling. It could ask the state Tax Court to review the case again or ask the Indiana Supreme Court to review it, Smith said. However, if the ruling stands, other gaming companies also would have to pay additional taxes, he said.

A longer story is available here, from the Evansville Courier&Press (intrusive registration required). Other reports may be found here, from BusinessWire.com, which reports:
On April 19, 2004, the Indiana Tax Court ruled in the case of Aztar Indiana Gaming Corporation v. Indiana Department of State Revenue that gaming taxes paid to the state of Indiana based on casino revenues are not deductible for the purpose of Indiana corporate income tax. The company understands that the affected party intends to seek judicial review of the decision in Indiana courts.

The company's preliminary estimate is that the decision, if upheld, could have a cumulative negative impact on net income, through the first quarter of 2004, of up to $9 million (after the federal income tax benefit and before any penalties or interest). Once the company completes a more detailed analysis of the financial impact of the court decision, it will report its estimate in a press release and on Form 10-Q.

and here, from PR Newswire's "Aztar Reports First-Quarter 2004 Results," reporting:
Indiana Tax Court Ruling The Indiana Tax Court has recently ruled against Aztar in the company's challenge to an assessment for additional Indiana state income tax. The company had challenged the Indiana Department of Revenue's position that gaming taxes paid to the state based on casino revenues are not deductible for Indiana income tax purposes. The company estimates that it will be obligated to pay approximately $17.3 million to cover assessments of taxes and interest from 1996 through the end of the first quarter of 2004. This amount would then be deductible for federal income tax purposes, resulting in net cash and net income effects of approximately $11.3 million. Accordingly, income taxes in the quarter have been increased by $11.3 million, equivalent to 31 cents per share.

Going forward, the company estimates that Indiana state income taxes, net of the federal benefit, will increase by approximately $1.6 million or four cents per share per annum.

Posted by Marcia Oddi on Thursday, April 22, 2004
Posted to Indiana Decisions

Environment - Town of Pines (Indiana) groundwater contamination the subject of national report

"Report uses Pines as example of waste problem: Environmental group says federal enforcement needed to ensure safe disposal," is the headline to this story today in the NWI Times. Some quotes:

THE PINES -- Two decades of unsafe disposal of coal combustion waste in The Pines and the resulting groundwater contamination are the focal point of a report, to be released today, calling for stepped-up federal regulation of the waste.

The report, "Not in My Lifetime: The Fight for Clean Water in Town of Pines, Indiana," published by the Clean Air Task Force, will be unveiled at a public hearing on power plant waste disposal in Vincennes, Ind.

The report calls the story of The Pines a "lesson of failed environmental policies at both the state and federal level" and calls on the U.S. Environmental Protection Agency to create federally enforceable regulations governing disposal of the waste. * * *

For at least 19 years, fly ash from the Northern Indiana Public Service Co.'s Michigan City Generating Station was dumped at the unlined Yard 520 landfill in The Pines. Groundwater contamination was traced to that waste, and in 2000 the town was named an EPA Superfund cleanup site.

Here is the website of the Clean Air Task Force, and here is the link to the report itself: "Report: Not in My Lifetime: The Fight for Clean Water in Town of Pines, Indiana (April 2004)." The accompanying description: "It is a story meant to inspire action, not just in Town of Pines, but nationally, to ensure responsible and environmentally safe disposal practices, particularly for toxic coal combustion wastes."

Earlier Indiana Law Blog coverage on the Town of Pines issues may be found in this Feb. 15, 2004 entry and this entry from Feb. 10, 2004. Here is a map showing the location of the Town of Pines (marked with a star), which is incidently not far from my hometown, Chesterton.

Posted by Marcia Oddi on Thursday, April 22, 2004
Posted to Environmental Issues

Indiana Law - One more medical malpractice story today

"Malpractice claims nationwide are declining," is the headline to this story today in the Evansville Courier&Press series on medical malpractice. Some quotes:

Last year, 1,065 malpractice complaints were filed in Indiana - which has more than 22,000 doctors, more than 17,700 hospital beds and thousands of more medical offices, outpatient centers, clinics and nursing homes where treatments could go wrong.

Since 1995, the average number of new Indiana malpractice complaints has been between 900 and 1,000 a year - although the number of surgeries and other medical procedures being performed has increased substantially.

That reflects the national trend. According to the National Association of Insurance Commissioners, the number of new medical malpractice claims nationwide actually declined by about 4 percent between 1995, when 90,212 claims were filed, and the year 2000, when 86,480 claims were filed. * * *

The landmark Harvard Medical Practice Study found that only one in eight preventable medical errors committed in hospitals results in a malpractice complaint. And yet, the cost of liability insurance for doctors has skyrocketed to the point that government studies say it threatens Americans' access to health care.

Although "[l]eaders of the medical profession contend the problem is caused by frivolous malpractice claims being filed at the urging of 'predatory lawyers,' plus the growing numbers of multimillion-dollar awards being granted by 'runaway' juries," the story continues that national consumer groups "contend the problem has been caused by insurance companies' 'unregulated corporate greed.' The consumer groups contend that the AMA, as part of its $15 million-a-year lobbying efforts, should be pushing for insurance reform rather than limits on damage awards."

Posted by Marcia Oddi on Thursday, April 22, 2004
Posted to Indiana Law

Wednesday, April 21, 2004

Law - Interesting privacy questions before DC Circuit

A blurb today in the Metro/Crime section of the Washington Post reports:

A five-star Washington restaurant might have violated the privacy of two diners by giving a copy of their credit card bill for a lunch last year to their boss, a federal appellate court said yesterday, but the court said it needs more information to be sure.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit yesterday asked the D.C. Court of Appeals to clarify D.C. privacy law. The panel is considering an appeal in a lawsuit filed by Catherine Schuchart and Valerie Rheinstein against Taberna del Alabardero.

The women said the Spanish restaurant violated their privacy by turning over a copy of the lunch bill and the credit card receipt to their boss, a frequent Taberna patron who had been angry that they had spent three hours at the January 2003 lunch. He fired them soon after their $250 meal. Another judge dismissed the suit, and the women appealed.

Here is the opinion, Catherine Schuchart and Valerie Rheinstein v. La Taberna Del Alabardero, Inc. (4/20/04 USCA DC Cir.) Here is the question, as framed by the Court of Appeals panel and certified to the DC Court of Appeals ("Because, under the circumstances, it would be inappropriate for this court to speculate on a matter of 'local doctrine,' ... we certify several questions of law to the District of Columbia Court of Appeals."):
Under District of Columbia law, does a customer state a claim for intrusion upon seclusion, or another common law tort, where (1) a business discloses without consent a customer’s personal credit card information to a third party not involved in processing payment (specifically, the customer’s employer), and does the result differ if the credit card information is disclosed to a party who already possesses that information, and (2) a restaurant discloses to a third party the dining habits of a patron without the patron’s consent?

Posted by Marcia Oddi on Wednesday, April 21, 2004
Posted to General Law Related

Indiana Decisions - Two Supreme Court, One Court of Appeals Rulings Posted Today

Brian C. Eddington v. State of Indiana (4/20/04 IndSCt) [Criminal Law & Procedure]

Richard & Kaye Kennedy v. Guess, Inc., et al. (4/21/04 IndSCt) [Products Liability]
Shepard, Chief Justice

We consider here for the first time certain strict liability provisions in the Indiana Product Liability Act that render some distributors liable as though they had manufactured the product. The case arises from motions for summary judgment the trial court granted for two corporate defendants involved in distribution of an allegedly defective designer umbrella. We conclude the defendants did not establish that they were entitled to judgment.

On a second question of first impression, we hold that those who license their trademarks for use on products that cause injury may have negligence liability proportionate to their role in the product’s design, manufacturing, and distribution. * * *

Genuine issues of material fact exist as to whether Callanen can be deemed a manufacturer under the “principal distributor or seller” exception and also as to whether Guess can be held liable under the “apparent manufacturer” theory, thus precluding summary judgment. Therefore, we affirm in part and reverse in part, as indicated above.

Sullivan and Rucker, JJ., concur.
Dickson, J., concurs in result without separate opinion.
Boehm, J., concurs in result with separate opinion in which Dickson, J., joins.

Joshua A. Willis v. State of Indiana (4/21/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Wednesday, April 21, 2004
Posted to Indiana Decisions

Law - I loved this story!

"Hitting the Books in the Golden Years," a story in the Education Section of today's NY Times, begins:

It took everyone at the Syracuse University law school a little while to get used to the idea of an 81-year-old first-year student.

"It's not easy to make a decision to give a seat to someone in their, you know, waning years, when so many young people hope to get in," said William Banks, a professor on the admissions committee.

"Yes, I was kind of surprised we admitted someone that age," said JoAnn Larkin, a student affairs administrator. "I was surprised an 81-year-old would think that this is something an 81-year-old would want to do. I thought, there might be, you know, problems."

Problems? "You know, the problems you'd anticipate with any 81-year-old law student," Ms. Larkin said.

More from later in the story:
In Mrs. Goldstein's case, it seems there was always a lawyer lurking inside, trying to get free. After getting her teaching degree in 1943, she settled down to raise those eight children, but helped her husband, David, with the family optical business. In 1958, they went to Japan, where he negotiated a deal to distribute Olympus Optical microscopes. "I took one look at the contract and ripped it up," Mrs. Goldstein said. "I rewrote it to make sure there was no way out for Olympus. That's the trick - think of every angle." * * *

Tough? She fell in November and broke an arm. "It was a Saturday," she said. "I was in school Monday, didn't miss a class." "That's my mother," said her son Jeremy. "Broke an arm? I got another arm. I got two legs."

Of the 280 who started in 2001, she is one of 231 expected to graduate next month. Her law interests come from her life experience. She likes corporate and securities law (her husband's business was nearly ruined in a fraudulent takeover and she hates "Enron people.")

The day after graduation she will begin a bar review course. She plans to take the New York and New Jersey bar exams. "That will get me a waiver to practice in Washington," she said. "You can get a government job." Is she serious? "I might be," she said. Is she serious? "I don't know," said her son Jeremy. "She says to me, 'Jeremy, you know what a starting lawyer makes at the S.E.C. - $85,000!' "

Posted by Marcia Oddi on Wednesday, April 21, 2004
Posted to General Law Related

Indiana Law - Marion County Clerk raises issues about Omaha-based electronic voting machine company

"New voting equipment didn't pass state muster: Marion County clerk says Omaha company tried to cover up error by reinstalling old software." So reads the headline in this front-page story in today's Indianapolis Star. I've read the story twice now and it looks like the Marion County Clerk's concern is not with the upcoming May 4 primary, but with the past conduct of the vendor, "the Omaha-based company, Election Systems & Software, that provides voting equipment to 41 counties and more than half of Indiana's registered voters." Some quotes (not all linearly arranged):

Marion County's optical-scan voting system was not ready for its debut last fall because it used unapproved software the manufacturer later tried to replace in a cover-up, Marion County Clerk Doris Anne Sadler said Tuesday. * * *

The problem with last fall's election was with software that collects votes and moves them from one computer to another. The company used a version of the software that had not received state certification. * * * That software, known as the data acquisition manager, reads computer storage cards that are removed from the county's 937 optical-scan machines after polls close. Once it collects data from each card, it sends vote tallies to a central computer.

The company now "has switched the software back to an earlier, certified version," for the upcoming May primary, according to the story.
Sadler said she did not think the uncertified software affected last year's election results. In that election, which decided control of the City-County Council and the Indianapolis mayor's office, 150,440 residents voted.

Sadler said she is less concerned about the possibility of skewed vote tallies than she is about a company that repeatedly has sold illegal equipment and, in this case, concealed it.

Thursday's election board meeting will address possible responses, which include terminating the contract with the company or asking it to pay back a portion of the system's cost.

The story also points out that:
Tuesday's news comes one month after ES&S was chastised by the four-member, bipartisan Election Commission for selling similarly uncertified voting equipment in four other counties: Johnson, Vanderburgh, Wayne and Henry.

The company was required to post a $10 million bond to ensure this year's elections go smoothly in those four counties.

In Marion County's case, Sadler said when the company realized it had made the error, it told its local representative, Wendy Orange, not to disclose it.

Here is the March 11 Indiana Law Blog entry on the State Election Commission vote "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." Here is a follow-up ILB entry from March 14th.

[More] I just ran across this story from yesterday's Oakland CA Tribune, headlined "Diebold knew of legal risks: Attorneys warned firm that use of uncertified vote-counting software violated state law." This lengthy story, from another state and about another company, begins:

Attorneys for Diebold Election Systems Inc. warned in late November that its use of uncertified vote-counting software in Alameda County violated California election law and broke its $12.7 million contract with Alameda County.

Soon after, a review of internal legal memos obtained by the Oakland Tribune shows Diebold's attorneys at the Los Angeles office of Jones Day realized the McKinney, Texas-based firm also faced a threat of criminal charges and exile from California elections.

Yet despite warnings from the state's chief elections officer, Diebold continued fielding poorly tested, faulty software and hardware in at least two of California's largest urban counties during the Super Tuesday primary, when e-voting temporarily broke down and voters were turned away at the polls.

Posted by Marcia Oddi on Wednesday, April 21, 2004
Posted to Indiana Law

Indiana Law - Medical Malpractice Series Continues Today

The lead story today in the Evansville Courier&Press series on medical malpractice is titled "You can't get over it." A quote:

[W]hen the malpractice complaint was settled she was required to sign a confidentiality agreement, pledging not to talk about the doctor and hospital or the money that was paid.

It's one reason the public seldom hears about most malpractice cases. Confidentiality agreements are a standard requirement in the settlements, attorneys said.

"That's something the health-care providers and insurance companies insist on," explained Deborah Pennington, an Indianapolis attorney who has represented injured patients across the state. She said the agreements are, in effect, "a gag order."

Actually, all the details - except for the amount of money paid in negotiated settlements - are a matter of public record available from the Indiana Department of Insurance. But the department doesn't reveal the records unless someone asks for them. And its periodic public reports on the state Patient's Compensation Fund does not reveal the identities of any health-care provider involved in settlements paid by the fund, although the identities are public record by law.

When asked why the identities aren't reported, Amy Strati, general counsel for the department, said, "My guess is because knowing the health-care provider's name is not important to us for data analysis."

But people who've won malpractice claims said one reason the victory seems meaningless is because it doesn't help protect other people from being injured the way they were.

A related story today is titled "Malpractice claims nationwide are declining."

Posted by Marcia Oddi on Wednesday, April 21, 2004
Posted to Indiana Law

Tuesday, April 20, 2004

Indiana Decisions - Many Significant Court of Appeals and One Tax Court Opinion(s) Posted Today

Robert Stytle v. Angola Die Casting Company, et al. (4/20/04 IndCtApp) [Worker's Compensation; Constitutional Law]
Ratliff, Senior Judge

The question Stytle presents is whether Indiana Code Section 22-3-7-9(f) as applied in this case violates Article I, Section 12 of the Indiana Constitution, which reads, “All courts shall be open; and every person, for injury done to him in his person, property, or reputation shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”

Strictly speaking, Indiana Code Section 22-3-7-9(f) is a statute of repose, rather than a statute of limitation. As we explained in Kissel v. Rosenbaum, 579 N.E.2d 1322 (Ind. Ct. App. 1991),

A statute of limitation requires a lawsuit to be filed within a specified period of time after a legal right has been violated. In contrast, a statute of repose is designed to bar actions after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim. A statute of repose might theoretically bar a claim filed within the period allowed by the applicable statute of limitation. A statute of limitation extinguishes a remedy while a statute of repose may bar a cause of action even before it arises. In practical terms, a statute of repose marks the boundary of a substantive right whereas a statute of limitation interposes itself only procedurally to bar a remedy after a substantive right has vested. A statute of limitation implicitly seeks to punish those who sleep on their rights, while a statute of repose operates to bar some recoveries no matter how diligently the claim may have been asserted. * * *
We are obliged to follow precedents established by our supreme court, which are binding until changed either by a subsequent supreme court decision or by legislative enactment. Computer Co., Inc. v. Davidson Indus., Inc., 623 N.E.2d 1075, 1079 (Ind. Ct. App. 1993). We acknowledge that the statute of repose at issue in Bunker specifically addressed asbestos-related claims, but we note that our supreme court has not disavowed its holding in that case, and the legislature has not updated Indiana Code Section 22-3-7-9(f) to provide for a discovery rule in aluminum poisoning cases. Our court is ill-equipped to determine as a matter of law whether a discovery rule for work-related exposure to certain substances is warranted on the basis of a cold and meager administrative record, and we are likewise ill-equipped to determine an appropriate period of repose. As the Bunker court astutely observed, such determinations are properly reserved for the legislature. In light of these considerations and the circumstances of this case, we cannot conclude that a two-year period of repose is so manifestly insufficient that it represents a denial of justice.

We therefore hold that Indiana Code Section 22-3-7-9(f) is not unconstitutional as applied to Stytle, who did not become disabled from alleged work-related aluminum poisoning until eight years after he was last exposed to aluminum as an Angola employee. Consequently, we affirm the Board’s dismissal of Stytle’s application as time-barred.
SULLIVAN, J., and ROBB, J., concur.

Dallis J. Tirey v. Marla L. Tirey and State of Indiana (4/20/04 IndCtApp) [Family Law]
Friedlander, Judge

Dallis and Marla Tirey divorced in 1994. Their dissolution decree addressed child support with respect to two children: then eight-year-old R.T., who was the Tireys’ biological child, and then three-year-old A.L., who was the biological daughter of Marla’s brother, Neal Lloyd. A.L. had lived with the Tireys since she was five days old, as will be explained more fully below. The court awarded custody See footnote of both children to Marla, and Dallis was ordered to pay child support for both children. Dallis filed a motion to terminate his obligation as to A.L., and the trial court denied the motion. Dallis appeals that ruling, presenting the following restated issues for review:
  1. May a court impose a child support order upon a man who volunteered to pay support but is neither the biological father nor the adoptive parent of the child?
  2. Did the trial court err in denying Dallis’s request to modify his child support obligation with respect to A.L.?
We affirm.
Dreibelbiss Title Company v. Fifth Third Bank (4/20/04 IndCtApp) [Real Estate; Banking]

Dimitrios and Laura Garnelis v. Marion County Health Department (4/20/04 IndCtApp) [Tort Claims Act]
Sharpnack, Judge

Dimitrios G. was "definitively" told he was HIV positive by the Health Dept. in 1991. In 1999, he was tested in Greece and found to be HIV negative.

On October 7, 1999, the Garnelises served a tort claim notice on the Health Department. The Garnelises then filed a complaint against, among others, the Health Department, alleging that the Health Department was “careless and negligent” in: (1) “the performance of, the analysis of, and/or the reporting of Dimitrios Garnelis’s HIV test[;]” and (2) “failing to order retesting of Dimitrios Garnelis to verify the positive result of his HIV test.” Id. at 9-10. The Health Department filed a motion for summary judgment on the issue of whether the Garnelises’ tort claim notice was timely filed, and the Garnelises filed a cross-motion for summary judgment on the same issue. * * * The sole issue is whether the Garnelises complied with the requirement of the Tort Claims Act to give notice of their claim within 270 days after their loss occurred. The trial court determined that the Garnelises’ tort claim notice to the Health Department was not timely under the Tort Claims Act and entered its summary judgment order in favor of the Health Department and against the Garnelises. See Ind. Code § 34-13-3-6 (1998). The Garnelises argue that the trial court erred by determining that the Garnelises’ tort claim notice was untimely under the Tort Claims Act. * * *

The undisputed facts of this case lead us to conclude that Dimitrios did not know or, in the exercise of ordinary diligence, could not have discovered the alleged negligence and resulting injury until July 5, 1999. Similar to City of Hobart, where the homeowner plaintiffs’ loss occurred so as to trigger the statutory period to file a tort claim notice on the date they discovered that their house was not connected to the city sewer system, not on the date that they were first erroneously charged for sewer service, the Garnelises’ loss occurred so as to trigger the statutory period to file a tort claim notice on the date when Dimitrios discovered that he was not HIV positive, not the date that the Health Department erroneously diagnosed him as being HIV positive. Therefore, July 5, 1999, was the date that the Garnelises’ cause of action accrued and was the date upon which their loss occurred so as to trigger the 270-day time period for filing their tort claim notice. Accordingly, we conclude that the Garnelises’ tort claim notice, filed on October 7, 1999, was timely. Thus, the trial court erred by granting summary judgment to the Health Department. For the foregoing reasons, we reverse the trial court’s grant of the Health Department’s motion for summary judgment and denial of the Garnelises’ cross-motion for summary judgment, and we remand to the trial court for proceedings consistent with this opinion.
Reversed and remanded.
MATHIAS, J. and VAIDIK, J. concur

Swiggett Lumber and Construction Company v. Barbara Quandt, et al. (4/20/04 IndCtApp) [Civil Procedure]
Swiggett Lumber Construction Co., Inc. (Swiggett) appeals the trial court’s denial of Swiggett’s Motion to Set Aside Default Judgment. Swiggett presents the following consolidated and restated issued for review: Did the trial court err when it denied Swiggett’s motion to set aside default judgment for insufficiency of service of process? We reverse and remand. * * *

Here, we are not confronted with merely a technical defect in service of process, as there was no attempt whatsoever to comply with T.R. 4.1(B). Furthermore, the rules do not contemplate that an unidentified employee of unknown position within a corporation is authorized to accept service of process for the corporation’s registered agent. Because service of process was inadequate in the instant case, the trial court did not have personal jurisdiction over Swiggett, and the default judgment entered against Swiggett is void. Therefore, we reverse the judgment of the trial court, set aside the default judgment against Swiggett, and remand for further proceedings consistent with this opinion. Judgment reversed and remanded.
KIRSCH, C.J., and BARNES, J., concur.

Rosalind R. Bowman v. Harold E. Smoot (4/20/04 IndCtApp) [Civil Procedure]
Riley, Judge
Appellant-Plaintiff, Rosalind R. Bowman (Bowman), appeals from the trial court’s denial of her Motion for Relief from Judgment pursuant to Ind. Trial Rule 60(B). We affirm. * * * Here, Bowman fails to specify how the jury venire in the Bowman/Smoot trial does not represent a cross-section of citizens in Monroe County. To the contrary, she merely asserts, “[t]he narrow socio[-]economic segment reflected by the flawed jury pool completely obliterated the diversity of Monroe County in income, racial composition, age, occupation, and virtually every other criteria.” (Appellant’s App. p. 6). We find her bald accusation without merit. Consequently, we hold that Bowman fails to demonstrate that the jury selection process utilized in the instant case does not substantially comply with the statutory requirements of I.C. § 33-4-5-2. * * *
DARDEN, J., and BAILEY, J., concur.
John P. Myers v. State of Indiana (4/20/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Brook, Senior Judge; Sullivan, J., concurs; Robb, J. dissents with opinion.

Interlocutory appeal of denial of motion to suppress a handgun seized during a warrantless search of his vehicle. Affirmed 2-1.

Daniel C. Portee v. State of Indiana (4/20/04 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge

This is credit time case; citing the Supreme Court in Robinson v. State and two subsequent Supreme Court decisions, but not Hakim v. State, which the Supreme Court issued today (scroll down to the next earlier entry), the court here rules that in:

the instant case, Portee asserts that the trial court improperly denied his motion to correct erroneous sentence because his abstract of judgment failed to include good time credit as required by I.C. § 35-38-3-2. Based on Robinson and its companion cases, we affirm the trial court’s denial of Portee’s motion – omissions in an abstract of judgment may not be challenged by a motion to correct sentence. Judgment affirmed.
RILEY, J., and SULLIVAN, J., concur.
Aztar Indiana Gaming Corporation v. Indiana Department of State Revenue (4/19/04 IndTaxCt) [AGI Tax]
Fisher, J.
The sole issue for the Court to decide is whether Indiana’s Riverboat Wagering Tax (RWT) is a state tax “based on or measured by income” for purposes of an add-back provision in Indiana’s adjusted gross income tax law. * * *

In this case, it is clear that the RWT is an excise tax: it is not payable unless the privilege of conducting riverboat gambling is exercised and the exercising of those privileges is the occasion for the imposition of the tax. Nevertheless, it is an excise tax that is measured by income. Indeed, Aztar’s RWT liability calculation is measured by the adjusted gross receipts it receives from its gaming operations: all cash and property received by Aztar from its gaming operations (minus certain adjustments) certainly constitute income to Aztar. See A.I.C. § 4-33-2-2. See also Black’s Law Dictionary 766 (7th ed.) (defining income as “[t]he money or other form of payment that one receives . . . from employment, business, investments, royalties, gifts, and the like”). Accordingly, Aztar’s RWT liability is subject to the add-back provision of Indiana Code § 6-3-1-3.5(b)(3). The Department’s final determination is therefore AFFIRMED.

Posted by Marcia Oddi on Tuesday, April 20, 2004
Posted to Indiana Decisions

Indiana Decisions - Supreme Court order posted today

Ali Abdul Hakim a/k/a Jesse James Williams v. State of Indiana (4/19/04 IndSCt) [Criminal Law & Procedure]

In a published order granting transfer and affirming the judgment of the trial court, the Court here addresses an issue relating to its March 10th decision in Robinson v. State (the Indiana Law Blog entry is here). Per the order:

Subsequent to the dismissal of this appeal, we issued our opinion in Robinson v. State, ___ N.E.2d ___ (Ind., March 10, 2004).

In Robinson, we held that a motion to correct erroneous sentence based on clear facial error is not in the nature of a post-conviction proceeding, and therefore may also be filed after a post-conviction proceeding has already been conducted without seeking the prior authorization necessary for successive petitions for post-conviction relief under Indiana Post-Conviction Rule 1 § 12. We overruled any cases that held to the contrary. Thus, the basis for dismissal relied on by the Court of Appeals is no longer good law.

The Court of Appeals dismissed the appeal under its reading of the case law as it stood at that time. But regardless of whether this particular rule of law is to be applied to appeals pending at the time Robinson was decided, the appellant is not entitled to relief. For as we also stated in Robinson:

Sentencing judgments that report only days spent in pre-sentence confinement and fail to expressly designate credit time earned shall be understood by courts and by the Department of Correction automatically to award the number of credit time days equal to the number of pre-sentence confinement days. . . Because the omission of designation of the statutory credit time entitlement is thus corrected by this presumption, such omission may not be raised as an erroneous sentence.
Appellant has no basis for filing a motion to correct erroneous sentence under our holding in Robinson and the trial court correctly denied the motion. We grant transfer of jurisdiction pursuant to Ind. Appellant Rule 58(A), vacating the dismissal order of the Court of Appeals, and affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, April 20, 2004
Posted to Indiana Decisions

Law - Interesting Colorado decision on federal funds and the separation of powers

When federal funds are distributed to a state, can the Governor use them without the funds first having been appropriated by the General Assembly? That is the simplified version of the issue posed in a ruling issued yesterday by Colorado's Supreme Court, In Re Interrogatories Submitted by the General Assembly on House Bill 04-1098. However, the issue rapidly becomes more complicated. See coverage from the Rocky Mountain News here and here (an opinion piece that makes a very good point). Here is the Denver Post report on the ruling.

Posted by Marcia Oddi on Tuesday, April 20, 2004
Posted to General Law Related

Indiana Law - More from Indiana medical malpractice series

"Patient stockpile kitty is shrinking" is the heading to today's story from the Evansville Courier&Press series.* The lead (from what I consider the best story in the series so far):

The Indiana Patient's Compensation Fund is paying out more money to victims of medical malpractice than it's collecting. Doctors are concerned. Last year, the fund paid $97.2 million to injured patients and their families. Its revenues totaled not quite $80.6 million. * * *

The fund is financed with an annual surcharge paid by the state's licensed health-care providers - doctors, hospitals, nurses, pharmacists and others. * * *
The department administers the fund as part of a system created by the state's 1975 Medical Malpractice Act, which limits a health-care provider's liability to no more than $100,000 for any single malpractice incident that occurred before July 1, 1999, and no more than $250,000 for incidents after that date. Any damages awarded in excess of those limits are paid from the fund, up to the maximum $1.25 million cap set by the law. In August, State Insurance Commissioner Sally McCarty imposed an immediate 72.6 percent increase in the surcharge.

Doctors in high-risk specialties, such as obstetrics and orthopedic surgery, now pay $26,452 a year into the fund. Those who work in medium-risk specialties pay $7,002 a year. And the low-risk physicians, including family practice doctors, pay $3,112 a year. That's on top of the premiums they pay for their private liability insurance.

Two other stories today: "Insurance companies faring well in Indiana," and "Doctor discipline rate is low."
*Unfortunately to access these stories, the Courier&Press now requires that you go through a lengthy and instrusive "registration" process, requiring that you provide your address, gender, date of birth, etc., etc., in order to read the stories (and view the ads). Plus you will need to create yet another password. I leave it to you to decide ...

[More] This AP story was just posted on the IndyStar.com site. The lead:

LOUISVILLE, Ky. -- A Louisville hospital and a doctor have been ordered to pay $27.5 million to the family of a 6-year-old Indiana boy for injuries he suffered during delivery.

A Jefferson County jury issued the judgment Friday against Baptist Hospital East and Dr. Maria Schweichler. The jury ordered the doctor to pay $5.4 million to the family of Spencer Sapp and the hospital to pay the rest.

Posted by Marcia Oddi on Tuesday, April 20, 2004
Posted to Indiana Law

Monday, April 19, 2004

Law - Are state laws banning outsourcing illegal?

A "Review & Outlook" story on page A20 of the Wall Street Journal today (paid subscription required) reports that state "Buy American" laws not only force taxpayers to pay more for services, but also violate the U.S. Constitution. A quote:

Most of the proposals would ban government contracts to companies that carry out the work overseas. In the case of state laws, this trespasses on Washington's constitutional prerogative to run foreign affairs and regulate commerce. We're all for federalism, but the Supreme Court has routinely found that Indiana isn't supposed to have an independent foreign policy. As recently as its 2000 unanimous Natsios ruling, for example, the High Court overturned a Massachusetts statute barring state agencies from letting contracts to companies that did business with Burma. This means that sooner or later state outsourcing laws are likely to be struck down by federal courts.
The story references "a new study out today from the National Foundation for American Policy, a Virginia think tank." Here is the Foundation's website, and here is a direct link to the 32-page study, "Exporting the Law: A Legal Analysis of State and Federal Outsourcing." Here is a useful press release/summary of the study.

Posted by Marcia Oddi on Monday, April 19, 2004
Posted to General Law Related

Environment - Birders Mourn Webcam Falcon

"Birders Mourn Webcam Falcon," is the headline to an AP story today that begins:

ST. PAUL, Minnesota -- Birders around the world are mourning the death of Mae, the first known peregrine falcon to nest at a power plant, who became an Internet star through a webcam that allowed thousands to watch her during nesting season.

Mae was killed this spring in a territorial battle with another falcon at an Xcel Energy smokestack in Oak Park Heights, about 20 miles east of St. Paul. Sympathy cards have arrived from as far away as Germany since her death, said Bob Anderson, director of the Raptor Resource Project and overseer of Xcel's bird-cam and nest-box programs.

Our Indianapolis Star Falcon Cam (in cooperation with IDNR) is here, along with related features. As falcon fans will recall, a similar "battle to the death" probably occurred here several years back, when, after 7 years of female Scout and her mate, Kinney:
Last year, Scout was replaced by a new female bird, later dubbed Kathy Q. How the change happened was unclear; wildlife experts suspect Scout would not have given up her prime nesting spot without a vicious battle, probably resulting in her death.

Posted by Marcia Oddi on Monday, April 19, 2004
Posted to Environmental Issues

Indiana Decisions - One Court of Appeals decision today

Donald Ennis v. State of Indiana (4/19/04 IndCtApp) [Criminal Law & Procedure]
BAKER, Judge

Appellant-petitioner Donald E. Ennis appeals the denial of his petition for post-conviction relief regarding his conviction and sentence following a guilty plea for the non-support of a dependent child. Specifically, Ennis contends that the trial court improperly modified the original sentence and judgment of conviction that had been imposed, that he was subjected to double jeopardy and that he was not afforded the proper amount of credit time to which he was entitled. Concluding that the trial court did not inappropriately modify the judgment of conviction, that there was no breach of the terms of the plea agreement, that Ennis’s probation was properly revoked, that he was not subjected to double jeopardy and that Ennis was not deprived of any credit time to which he was entitled, we affirm the judgment of the post-conviction court.

Posted by Marcia Oddi on Monday, April 19, 2004
Posted to Indiana Decisions

Indiana Decisions - U.S. Supreme Court denies cert in Endres

03-1183 ENDRES, BENJAMIN P. V. INDIANA STATE POLICE is listed on page 3 of the U.S. Supreme Court's Order List for Monday, April 19, 2004, under the heading "CERTIORARI DENIED." This is the State Trooper/Riverboat Gambling case -- see the Indiana Law Blog entry from last Friday, April 16th here (or simply scroll down).

[More] Here is this morning's AP report of the review denial, titled "High Court Rejects Religious Trooper Case."

Posted by Marcia Oddi on Monday, April 19, 2004
Posted to Indiana Decisions

Sunday, April 18, 2004

Environment - Indianapolis Star editorial: degrading the environment costs money and jobs

This lead editorial in the Sunday Indianapolis Star, titled "Indiana can't afford high costs of lax policies on pollution," includes the following:

Failure to act will cost jobs and money.

Historically, the mantra of Indiana government officials, business and industrial leaders has been that money spent limiting pollution limits economic development.

What is becoming increasingly clear through the haze and smog is that it is the other way around. Failure to act is more costly -- whether it is attracting jobs, controlling health costs, luring quality workers to the state, being hit with mandates to clean up pollution, paying litigation costs to defend the environmental status quo, or tolerating an inferior quality of life.

Hoosiers are paying an increasingly steep price for cheap, coal-fired electricity, destruction of forests and wetlands, reliance on septic systems and combined sewers, a love affair with the automobile and lax regulations on business and industry.

Posted by Marcia Oddi on Sunday, April 18, 2004
Posted to Environmental Issues

Law - Two important national law stories today

The NY Times has two really outstanding legal writers, Adam Liptak, and of course Linda Greenhouse. Liptak has a front-page story today in the Times on how Nafta has changed the accepted legal review process:

After the highest court in Massachusetts ruled against a Canadian real estate company and after the United State Supreme Court declined to hear its appeal, the company's day in court was over.

Or so thought Chief Justice Margaret H. Marshall of the Massachusetts court, until she learned of yet another layer of judicial review, by an international tribunal.

"I was at a dinner party," Chief Justice Marshall said in a recent telephone interview. "To say I was surprised to hear that a judgment of this court was being subjected to further review would be an understatement."

Tribunals like the one that ruled on the Massachusetts case were created by the North American Free Trade Agreement, and they have heard two challenges to American court judgments. In the other, the tribunal declared a Mississippi court's judgment at odds with international law, leaving the United States government potentially liable for hundreds of millions of dollars.

Linda Greenhouse has a comprehensive piece titled "Cases Before Supreme Court Will Test Limits of Presidential Power." The lead:
Three Supreme Court cases generated by the Bush administration's detention of those it deems "enemy combatants" will be argued over the next 10 days, framing a debate of historic dimension not only about the rights of citizens and noncitizens alike, but also — or perhaps principally — about the boundaries of presidential power.

It was always evident that these cases would invite the justices to re-examine the balance between individual liberty and national security, and perhaps to recalibrate that always delicate balance for the modern age of terrorism. But the full extent to which the arguments turn on competing visions of presidential authority became clear only after the dozens of briefs filed in the three cases began to arrive at the court after the first of the year.

The story is accompanied by an excellent graphic previewing the three cases, plus a link to the Findlaw.com site where the briefs for these cases may be accessed. In addition, Greenhouse has a piece in the Week in Review section of today's Times titled "The Imperial Presidency and the Constraints of the Law," where she presents quotes from some of the briefs, with this intro:
The administration's lawyers argue for a view of executive authority that leaves no room for "second-guessing" by the federal courts. On the other side, briefs from across the political spectrum have expressed alarm about that view. The Cato Institute, the libertarian research organization, has filed a brief asserting that the government's argument "strikes at the heart of habeas corpus,'' which, the brief calls "a right to judicial protection against lawless incarceration by executive authorities.'' Following is a sample of voices from the dozens of briefs received by the court.

Posted by Marcia Oddi on Sunday, April 18, 2004
Posted to General Law Related

Indiana Law - Don't miss this series on medical malpractice in Indiana

"Medical Malpractice: Seeking resolution," is the title of a major story today in the Evansville Courier&Press, billed as "First in a Series." It begins:

Juries in this state have never been known for granting the so-called "jackpot" multimillion-dollar verdicts, especially not against doctors sued for malpractice.

About 75 percent of the time juries rule for the doctors. So when a Daviess County jury in February awarded a combined verdict of $7 million to a Washington, Ind., couple and their child, who suffered severe brain injury from a doctor's alleged malpractice, it set a local record.

At least, on paper, it set a record. In reality, it doesn't matter what the jury said. The case is far from resolved.

The law in Indiana says the maximum that can be awarded to victims of medical malpractice is $1.25 million — no matter how severe the injury or the economic damages. It's one of the lowest and most strict malpractice caps in the nation. Most states with limits on malpractice awards only restrict judgments on noneconomic damages — which include pain and suffering and punitive damages — but they don't limit recovery for medical costs or lost wages. Only two other states, Louisiana and Virginia, have an overall cap like Indiana.

The report continues that supreme courts in at least seven states have ruled caps like Indiana's are unconstitutional.
Indiana's law has withstood a constitutional test. But court rulings have amended various aspects of the law, and a ruling April 7 by the Indiana Court of Appeals could affect the outcome of the Decker case. Before the appeals court ruling, the $1.25 million cap was applied to every case, regardless of how many people were injured by a single act of malpractice. Now, the court has said that if more than one person is injured, each is entitled to seek damages up to the $1.25 million.
Here is the decision: Commissioner Sally McCarty v. Vicki L. Sanders, et al. (4/7/04 IndCtApp) [Medical Malpractice; Statutory Construction] More from today's story:
The law already has been amended once by the Indiana Supreme Court. In 1999, it said the two-year statute of limitations on filing a malpractice lawsuit was unconstitutional when applied to people who couldn't be expected to know that their doctors made mistakes, such as cancer patients who were told they didn't have the disease. Lawyers who defend Indiana doctors and hospitals in malpractice cases acknowledge the $1.25 million cap on damage awards is inadequate in cases of catastrophic injury — the brain-damaged babies, the quadriplegics, others who will require years of care.
Two related stories were also published in the Evansville Courier&Press today, headlined "Filing suit can be hard on families," and "Malpractice cases often complex".

[Update Monday 4/10/04] Here is Part 2 of the series, titled "Case against damage cap." This story focuses on whether or not a proposed cap on medical damages in Kentucky is a good idea. Three other related stories also appear today: titled "Malpractice cases often complex," which discusses in detail the complexities of the Indiana Medical Malpractice Act; "Lawyers say jury awards show damage cap not the answer;" and "Insurance crisis sends doctors packing," about doctors moving across the river from Kentucky to Indiana:

Howell said the decision to move was "a no-brainer." Kentucky was, and still is, in the throes of a malpractice insurance crisis. Indiana is considered a doctor-friendly state because of its 1975 Medical Malpractice Act that caps the damage awards to injured patients and limits the liability of health-care providers. Hoosier physicians' insurance premiums haven't soared.

Cave and Howell said they would not have made the move if it meant having to abandon their patients or relocate their families. But they had to do neither. Their new office is just a 15-minute drive from Henderson and most of their patients are still Kentuckians. Also, The Women's Hospital "is extremely popular" with Henderson patients whose insurance plan includes that hospital, Howell said. "So we essentially followed a lot of patients over here," he added. "They led the way."

But the doctors said the primary reason for their move was the malpractice issue. "We both have 20 more years to practice. For us, the choice was that we couldn't stay," said Cave. "There was too much uncertainty. We just felt we have to go to a known commodity, a stable situation."

Ironically, almost as soon as she and Howell moved their offices to Indiana they received an abrupt notice - along with every doctor practicing in Indiana - that the situation isn't so stable after all.

The notice was from the Indiana Department of Insurance, informing them of an immediate 72.6 percent increase in the fees that all healthcare providers must pay into the Indiana Patients Compensation Fund, to help pay for damage awards to malpractice victims.

The fund has been paying out more than it's taking in. But Howell and Cave said even with the increase, they still come out ahead - saving about 20 percent over what they would have been paying for insurance in Kentucky.

Posted by Marcia Oddi on Sunday, April 18, 2004
Posted to Indiana Law

Law - Agriulture Dept. denies meatpacker's plan to test every cow for mad cow disease

The AP first covered this story April 9th. The lead:

WASHINGTON (AP) The Agriculture Department has rebuffed a meatpacker's plan to test every animal at its Kansas slaughterhouse for mad cow disease.

Creekstone Farms Premium Beef, a small Kentucky-based meatpacking company, had created a firestorm in the cattle industry by seeking government certification for its plan to test each animal at its Arkansas City, Kan., plant.

The NY Times gave expanded coverage to the decision today. The Times story reports that on April 9th the USDA:
forbade Creekstone to test its cattle, saying there was "no scientific justification" for testing young steers like those Creekstone sells. Certifying some beef for Japan as disease-free, the department said, might confuse American consumers into thinking that untested beef was not safe.

Calling those arguments "ludicrous," Mr. Fielding has threatened to sue. He says he only wants the freedom to please a big, fussy customer, and he accuses the department of bending to the will of the big meat companies that control 80 percent of the industry. * * *

[The chief executive of the National Cattlemen's Beef Ass'n] said, "If you let one company step out and do that, other companies would have to follow," at considerable expense. * * *

Support for Creekstone is emerging from some Kansas Congressional representatives, state agricultural officials and small cattle ranchers. On Wednesday, former Senator Nancy Kassebaum Baker, who is married to Howard Baker, the ambassador to Japan, backed the company in a letter to Agriculture Secretary Ann M. Veneman. Ms. Veneman, a former food-industry lobbyist, has exchanged increasingly tense letters with Japanese agriculture officials, who expressed disappointment at her Creekstone decision.

Posted by Marcia Oddi on Sunday, April 18, 2004
Posted to General Law Related

Law - File sharing and the recording industry

When I was growing up, finding the new music was simple -- new tunes were introduced on the radio and later, on TV's American Bandstand. The new tunes generally sounded odd the first couple times you heard them, then some would catch on.

Apparently it isn't so simple anymore. I heard something to that effect on NPR this week, but can't find it now. However, I did run across an editorial piece titled "The Recording Industry Soldiers On Against Illegal Downloading," in the NY Times Saturday with this paragraph that caused me an "ah-ha!" moment:

But the recording industry's interests are not synonymous with the public interest. The industry assumes that the main reason people engage in file sharing is simply to get free music. For many people, certainly, that is its main appeal. But file sharing — like the new generation of legal music-downloading services, including Apple's wildly successful iTunes Music Store — is also a direct response to a number of unpleasant realities in the music business. As long as the recording industry lives and dies by the blockbuster, music listeners will be looking for ways to see deeper into the music catalog. For some listeners, file sharing has become a way to experiment — to try out new music without first shelling out $16 or $17 for a CD. There was a time when radio gave listeners a chance to hear lots of new music. Thanks to conglomerates like Clear Channel, those days are dead.

Posted by Marcia Oddi on Sunday, April 18, 2004
Posted to General Law Related

Saturday, April 17, 2004

Law - Madison County Illinois makes news again

When last the Indiana Law Blog mentioned Madison County, Illinois, I believe it was in connection with the tobacco suits. An entry from 8/24/03, titled "Forum Shopping in Illinois," reported that the county is known as a "plaintiff's paradise."

This story from Friday, 4/16/04, from the Illinois Leader, titled "Former attorney general condemns Madison County's court system," begins:

MADISON COUNTY -- Former U.S. Attorney General Griffin Bell this week called for a U.S. Justice Department investigation of the Madison County, Ill., court system, which some court observers say may be the most out-of-control jurisdiction in the United States.

The 86-year-old Bell, who served as Attorney General under President Jimmy Carter and also fifteen years as a federal judge, made his call during an appearance at the Washington University Law School in St. Louis, Mo., across the Mississippi River from Madison County. While Bell attacked Madison County's court system, plaintiff's attorney and former Madison County Judge Randall Bono shouted across the table at Bell.

According to the rpoert, Bell stated that "About 25 percent of all asbestos cases nationwide in which the plaintiff suffers from mesothelioma are filed in Madison County."
Several panelists argued with Bell but none more heatedly than Bono. Bell criticized a mesothelioma case Bono handled for an Indiana man who last year won a $250 million judgment against U.S. Steel. * * * Bono responded by shouting at Bell: "You are a corporate advocate. I trust the American judicial system because I trust my fellow citizens to do the right thing."
Last weekend the St. Louis Post Dispatch carried a story about doctors fleeing Illinois because of an "astounding rise in malpractice insurance rates." More:
The good news is that the Illinois legislature seems determined to do something about it this year, although no one is sure what. * * *

On the table in Springfield are quite a few proposals. Senate minority leader Frank Watson, R-Greenville, has a bright idea: Multicounty malpractice courts. The idea is that judges specializing in malpractice would handle cases more efficiently, but that's not what makes this idea so appealing. The real genius of regional malpractice courts is that they would pull cases out of Madison and St. Clair counties. Especially in Madison County, a combination of aggressive lawyers and go-along judges have unfairly tilted the scales of justice against doctors and hospitals. Doctors in Madison County are sued at twice the rate of doctors elsewhere.

That's why a doctor's malpractice insurance rates can drop nearly 90 percent when he moves out of Madison County. And a lot of doctors are doing just that. In the past two years, 28 of the 220 physicians in northern Madison County have left, and only five have moved in, according to Ron McMullen, president of Alton Memorial Hospital.

Posted by Marcia Oddi on Saturday, April 17, 2004
Posted to Indiana Law

Law - Top law firm withdraws from NY City gun industry suit

"New York Loses a Top Legal Ally in Suit Over Guns" is the headline to this front page story today in the NY Times. Some quotes:

Gun industry representatives say the case is crucial, and the companies have some of the country's top law firms defending them. Until a few weeks ago, the city had a powerful legal weapon, too: another of the country's top law firms, Weil, Gotshal & Manges, had agreed more than two years ago to work on the case for free.

But now the law firm is withdrawing from the case, acknowledging that at least one of its corporate clients had complained about its role. In a statement, the firm said that "certain potential `positional conflicts' " had been "brought to our attention." Some industry critics say the disruption in the city's legal team may have been intended to weaken the city's chances in what is certain to be a bitterly fought trial. * * *

The suit, which is likely to go to trial this fall, seeks an injunction stopping the industry from sales and distribution practices that the plaintiffs claim amount to a public nuisance. Critics have long accused the gun companies of closing their eyes to illicit distribution pathways. They say certain dealers, for example, are routinely tied to the sale of guns to criminals. * * *

But some legal ethics experts said it was far from clear that ethics rules required the firm to drop the city as a client. Instead, some of them said, the firm may have made what amounted to a business decision to bow to the wishes of long-term clients.

Several experts said they had reached that conclusion in part because a firm of Weil, Gotshal's sophistication would have taken on the city's case only after determining that it would not pose any conflict with its many other clients. The firm has represented scores of companies, including Texaco, Lorillard Tobacco Company, Enron, Johns-Manville and General Motors.

Rules dealing with actual conflicts of interest require a firm to decline a case, such as when a law firm is asked to handle a suit against an existing client. But, in contrast, several legal ethics experts said, a positional conflict often does not require a law firm to step down. A positional conflict occurs when a lawyer takes a position in one case while making a contrary argument in another.

According to the Times, "more than 35 similar suits that were filed by cities from coast to coast against the firearms industry beginning in 1998." Gary Indiana has such a suit pending, but a law passed by the Indiana General Assembly in 2001 precludes any future suits. The Times reports that on the national level "an effort by the gun industry and its supporters ... failed in Congress last month to get immunity for the industry from such suits."

Earlier Indiana Law Blog entries:

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

After Gary filed its lawsuit in 1999, the General Assembly voted in 2001 to ban lawsuits by other municipalities in the state." A complete discussion of the 2001 legislation is found near the end of this earlier ILB entry.

Posted by Marcia Oddi on Saturday, April 17, 2004
Posted to General Law Related

Law- Ramifications of Juror Identification in Tyco Trial; and More

The identification in the press of "Juror #4" during the course of the Tyco led to threats sent to her home and ultimately, a mistrial. As a result, as reported here by the NY Times on Thursday:

The judge presiding over the retrial of Frank P. Quattrone, the former Credit Suisse First Boston investment banker, refused yesterday to lift an order banning the media from identifying jurors, citing the mistrial of two former Tyco executives that was caused, in part, by the publication of a juror's name. * * *

In arguing to have the order rescinded, Mr. Schulz contended that while the media did not intend to publish the names of jurors, the order violated the First Amendment. "We are concerned not about the process," he said, "but the notion that you can turn around and order the press what they can do or not do with information once it's public. There is a very bright line under the First Amendment that says that you can't restrain information once it's out there."

Steven Peikin, an assistant United States attorney, appeared to agree, telling the judge, "Our review of the case law seems to suggest that under prior existing case law, that the restraint that the court has imposed might very well be unlawful." Lawyers for Mr. Quattrone have taken the position that the jury should be anonymous and requested the order that the judge issued Tuesday.

Here is a report from CFO.com. And here is a quote from an AP story published 4/14/04 in Newsday:
While reporters traditionally do not identify jurors by name during a trial, news organizations said Owen's order on Tuesday violated the First Amendment.

"Nothing has occurred to date in this case to suggest that extraordinary measures are needed to prevent publication of the names of prospective jurors," lawyer David Schulz wrote to Owen in a letter delivered Wednesday. * * *

Owen's order Tuesday barred publication of the name of any prospective or selected juror in Quattrone's trial "until further order of this court." On Wednesday, Owen went further -- ordering reporters not to discuss the case in the courtroom if they know they are sitting near a potential juror.

The judge said a prospective juror on Tuesday had "got involved in some kind of a conversation" with a reporter in the courtroom.

In the Tyco case, some news organizations printed the name of a juror who made a gesture that some interpreted as an "OK" sign sympathetic to the defense. The juror denied the allegation, and the judge declared a mistrial April 2 after the juror reported receiving threats.

[Update] A front page story from today's (4/17/04) Washington Post reports:
A federal judge yesterday tried to get deliberations moving in a high-profile murder trial by taking the unusual step of replacing a juror who for nine days refused to consider evidence in the case.

U.S. District Judge Royce C. Lamberth brought back an alternate juror to take the ousted man's place and ordered that deliberations begin anew. The move was a last-ditch effort to rescue the six-month trial of six men accused of acting as lieutenants in Murder Inc., a D.C. drug gang that authorities say was responsible for 31 slayings.

Posted by Marcia Oddi on Saturday, April 17, 2004
Posted to General Law Related

Friday, April 16, 2004

Law - Maryland High Court Rules University of Md. Coaches' Contracts are Public

As the Baltimore Sun reports in this story today:

The state's highest court ordered the University of Maryland yesterday to release its pay packages for two high-profile coaches - a ruling that is likely to lay bare the contract of any public employee.

UM officials, who for two years fought requests for the coaches' deals, said yesterday that they need to review the Court of Appeals decision in a suit brought by The Sun before revealing the contracts of basketball coach Gary Williams and football coach Ralph Friedgen. * * *

Williams and Friedgen reportedly earn more than $1 million annually. But it is unclear how their packages break down among state salaries, incentives, endorsements or bonuses.

In turning down The Sun's requests for the contracts in 2002, the university said it needed to make public only the coaches' base salaries because their contracts were private personnel documents. A similar argument has long shielded the contracts of other top state employees.

But in yesterday's unanimous decision, the court ruled that the coaches' actual contracts must be made public, asserting that the contracts were the underpinning of their state pay.

The contracts are "the transaction of state business," the court stated, in a ruling written by Chief Judge Robert M. Bell. "It is clear the employment contracts ... are exactly the types of records to which the Legislature intended the public to have access."

The 39-page decision is University System of Maryland, et al. v. The Baltimore Sun Company, et al., and the Court's headnote reads:
Records evidencing a contract or agreement between a State employee an d a third party, which provides income to that employee and to which the State entity employing that employee is not a party, when the subject of a Maryland Public Information Act (MPIA) request, are subject to in camera review to determine whether they are financial info.
In addition, the Sun report continues:
In a separate part of the ruling, in which one judge dissented, the judges said lower courts should decide whether the university also has to make public the coaches' contracts with third parties such as sports apparel companies. If the lower court finds that those contracts are "closely connected" with the coaches' roles with the teams, the ruling stated, those contracts should be released.

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to General Law Related

Economic Development - WSJ Outsourcing Story Features Indiana/India Contract

A story today on page A4 of the Wall Street Journal (not freely available online) begins with this lead:

When India's largest software company won a $15 million contract to upgrade the processing of Indiana's unemployment claims, public outrage prompted the state Senate to vote to ban future outsourcing of state contracts to other countries. But then the business community swung into action to derail the bill. The result: A watered-down version was introduced in the state's lower house and eventually died.
Later in the story:
Spearheading the attack is the Coalition for Economic Growth and American Jobs, formed late last year by the U.S. Chamber of Commerce, the Business Roundtable, the American Bankers Association and other powerful business groups. The coalition's success shows how hard it is for state politicians to defeat a well-funded and well-organized business lobby, even when populist anger is high. Among its tactics: enlisting big employers to say they would be hurt by the restrictions; warning that taxpayers' costs would go up if outsourcing were curbed, and trying to run out the clocks on the legislative sessions.

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to Indiana economic development

Indiana Decisons - One 7th Circuit Opinion Today

AMERICAN PATRIOT INS v. MUTUAL RISK MGMT (04/16/2004 USCA 7th Cir.), an appeal from the USDC ND Ill., E.Div., deals with, as Judge Posner states: "questions primarily of waiver of venue and the scope of the forum-selection clause." On page 3 of the opinion is a very interesting observation:

In a system of case law there is a tendency, as we noted the other day in Peaceable Planet, Inc. v. Ty, Inc., No. 03-3452, 2004 WL 692166, at *3 (7th Cir. Apr. 2, 2004), for a drift away from the language of a statute or a rule, with cases increasingly quoting previous cases rather than returning to the language and purpose of the provision underlying the judge-built superstructure. Sometimes there are compelling reasons for such a drift but often it is due just to imprecision of paraphrase.

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to Indiana Decisions

Indiana Decisions - U.S. Supreme Court today will decide whether to hear State Trooper/Riverboat Gambling Case

"At the Court's private conference on Friday, the justices will consider Endres v. Indiana State Police, No. 03-1183, which tests whether Title VII of the Civil Rights Act requires the police agency to accommodate his religious beliefs." That quote is from this very good Legal Times coverage at Law.com. (Accessing the site requires a lengthy and intrusive registration).

Here is earlier Indiana Law Blog coverage, of the 11/19/03 7th Circuit ruling, and the 6/28/04 7th Circuit ruling.

Whether or not cert will be granted should be announced shortly (Monday) by the Court and will be posted here.

[Update 4/18/04] Syndicated columnist James Killpatrick devotes an entire column today to the Endris case. His conclusion:

I doubt that the Supreme Court will grant review to officer Endres. The pivotal questions boil down to these: What accommodation is a reasonable accommodation, and how much hardship is undue hardship? These are fuzzy-wuzzy questions, heavily reliant on particular facts, but four other circuits have wrestled inconclusively with the same issues raised by Judge Ripple. My own sympathies lie on balance with Trooper Endres. His fellow Baptists are bound to wonder, what's a nice fellow like you doing in a place like the Blue Chip Casino?

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending April 16, 2004

Here is the Indiana Supreme Court's transfer list for the week ending April 16, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to Indiana Transfer Lists

About the Indiana Law Blog - Today is The Day

Today is the Indiana Law Blog's One Year plus One Month Anniversary. As regular readers will recall, I forgot about the One Year Anniversary, so rescheduled for today. Plans for the future include:

Kudos from Readers. I've received several very nice notes. This one from Joshua Claybourn, at my alma mater, IU Law-Indianapolis:
You have MANY reader of the Indiana Law Blog. One such is all of the students at the IU – Indy law school. We have our own blog, too, by the way and it can be found here: Sapere aude. A number of student blogs are linked there too. *** I love [your site] and I know others do as well.
Joshua also posted this entry on Sapere aude:
Blog Highlight. In my humble opinion, there are two blogs that every practicing attorney or professor in Indiana should be reading. The first is How Appealing, a weblog written by Howard Bashman on appellate litigation. However this is a widely-known and widely-read blog. One that doesn't get much attention outside the state, but which is invaluable to Hoosier jurists, is The Indiana Law Blog. It just recently turned one year and one month old. Authored by Marcia Oddi, this site is the Hoosier equivalent of How Appealing. If you're a legal geek that can't get enough of the latest Indiana litigation and legislation, add this site to your bookmarks.
This lengthy and thoughtful review from Jon Bryant, an attorney with the City of Indianapolis:
Ms. Oddi, Do not despair: you have at least one loyal reader, and I've been spreading the news of your blawg as widely as practical. It is a valuable resource, and a useful way of keeping one's law horizons appropriately broadened.

I am impressed with the depth you are able to accomplish. Few other blawgs that I read offer the same depth. In fact, I have found your postings a pleasant mix of the breadth of How Appealing and the depth of The Legal Theory Blog. I am particularly appreciative of your efforts to--for lack of a better term--brief the opinions handed down by our courts. These entries, together with the subject headings (e.g., torts, criminal procedure) help me better evaluate which opinions I need to read more immediately than others. Also, probably owing to nothing other than that I'm a law geek, I enjoy perusing the weekly transfer list. And thank you for raising the profile of Indiana environmental issues.

I have not yet read your separations of powers paper, although I intend to, as I am increasingly an Indiana constitutional law geek--if it gives you any sense, part of my Valentine's Day gift this year was the 4-volume set of Constitution Making in Indiana. Incidentally, I'm all for the fifth installment, but I wonder whether it's appropriate to wait and see if anything comes of the movement to reform local government.

Of course, life would go on if the Indiana Law Blog would suddenly cease to exist, but either I would be much less informed, or I would have to work harder to stay informed.

So, for all that you have accomplished over the last baker's dozen's worth of months, congratulations; and, prospectively, please keep it up.

And this note from Allen Taylor of Dura Builders: "I appreciate everything that you do to make this site work. As a blogger myself (and old time BBS system administrator) I know what it takes to keep these things up."

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to About the Indiana Law Blog

Law - Ex parte contacts with judge

I read with interest this story, published Monday in the Norfolk Virginia-Pilot, titled "Call from legislator about suit concerns judge" and noted Wednesday in the SW Virginia Law Blog. The story begins:

SOUTHAMPTON — A Circuit Court judge has taken exception to a weekend telephone call from a state delegate who wanted to discuss a suit filed against the lawmaker’s friend.

Del. J. Paul Councill Jr., who called Judge Rodham T. Delk Jr. on Sunday, March 14 , said he meant only to vouch for his friend’s honesty.

“I don’t know what all the ruckus is about,” he said.

Judicial ethics prohibit a judge from communicating with a legislator concerning a pending or impending case. * * *

Councill, contacted in Richmond during a General Assembly break, said he didn’t mean to interfere.

“I called Judge Delk because I know him personally and have known him for years, his family, too,” said Councill, a delegate for 30 years. “I called to let him know what an honest person Bobby Flippen is. It wasn’t my intent to ask him to change anything.”

Serendipidously, I had just finished reading a book review by John Dean (yes, that John Dean) titled "How Do Washington SuperLawyers Work? The Inside Scoop, As Revealed By David McKean's New Biography Of Tommy Corcoran" that included this quote:
Clearly Corcoran often acted at the edge of the law. At times, he even acted beyond its boundaries -- as when he directly lobbied Supreme Court Justices Hugh Black and William Brennan for a client with a pending case. Both justices were stunned, refused to talk with him, and asked him to leave.

Because Corcoran had been instrumental in placing Black and others (William O. Douglas and Felix Frankfurter) on the Court, he seemed to think he had special privileges. The justices didn't agree, however. And had they been inclined, they could have had him disbarred.

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to General Law Related

Environment - EPA releases Indiana's final designations under the federal 8-hour ozone standard

For an overview of national impact, see U.S. EPA's page on the April 15th 8-hour ozone designations.

Here is the letter U.S. EPA sent yesterday to Governor Kernan, along with the boundary designations. IDEM's website includes Facts Sheets on EPA's April 15, 2004 Final Ozone Designations. The pdf versions are in the right column.

The Indianapolis Star contains a front-page story today on the tougher EPA standards, along with a sidebar asking, for example, "What it Means," and answering: "Noncompliant regions may have to impose controls on industrial plants, restrict transportation and require vehicle inspection programs. Some counties also may have to require the use of special, cleaner-burning gasoline or vapor recovery controls."

Here are stories from the Fort Wayne Journal Gazette ("Allen County fails smog test, EPA reports"), the Gary-Post Tribune ("Until Thursday, Lake and Porter counties were Indiana’s only “non-attainment” counties for ground-level ozone, a lung-irritating air pollutant."), the Munster Times:

Lake, Porter and LaPorte counties, like Cook County in Illinois, are now dubbed "moderate nonattainment" areas, the third of six levels ranging from "basic" to "extreme."

No area in the nation is designated extreme, though Los Angeles comes close.

Exactly what this all means won't be known for years.

Nonattainment areas have three years to develop plans to meet the newer, eight-hour ozone standard, and another two to five years to realize those plans.

Until now, Lake and Porter counties have been listed as "severe nonattainment" areas under another standard.

The new "moderate nonattainment" designation will not result in the lifting of any existing regulations, agency officials said.

"The best thing we can say is we don't know what will happen. We have to sit down and come up with a plan," said Reggie Korthals, environmental planning director for the Northwestern Indiana Regional Planning Commission.

the Muncie StarPress ("This is the first time Delaware County has been designated as a non-attainment area)", the Evansville CourierPress ("Vanderburgh and Warrick counties were listed Thursday among 24 Indiana counties not meeting new federal ozone pollution standards"), and the Louisville Courier-Journal:
The U.S. Environmental Protection Agency yesterday declared five Louisville metro area counties out of compliance with a tougher air pollution standard, but gave the region flexibility — and several years — to avoid economic sanctions.

The flexibility means the EPA will not likely force state and local officials to either keep or retain motor vehicle emissions testing, officials said.

However, a federal judge could still require vehicle emissions testing to return in Jefferson County, pending the outcome of a lawsuit filed last year after the Louisville Metro Air Pollution Control District ended its 20-year-old VET program without EPA permission.

And Indiana will still need to show that ending testing in Clark and Floyd counties in 2006, as the state legislature has ordered, will not allow air quality to worsen, said Janet McCabe, assistant commissioner for air quality in the Indiana Department of Environmental Management.

But government and industry officials in both states said they hope they can meet the EPA standard with a crackdown on smog-causing emissions from coal-fired power plants that began during the Clinton administration, along with impending tougher national diesel fuel and engine requirements.

Posted by Marcia Oddi on Friday, April 16, 2004
Posted to Environmental Issues

Thursday, April 15, 2004

Indiana Decisions - Two Court of Appeals Rulings Today

Karen Bailey v. State of Indiana (4/15/04 IndCtApp) [Criminal Law & Procedure]

"The sole issue is whether the trial court erroneously admitted several documents from the Indianapolis Housing Authority (“IHA”) into evidence. *** The trial court did not abuse its discretion in admitting records and documents prepared by the IHA into evidence. We affirm."

Fernando Trujillo v. State of Indiana (4/15/04 IndCtApp) [Criminal Law & Procedure]

"We hold that the trial court did not abuse its discretion when it concluded that C.M.’s hearsay statements to her mother and her videotaped interview are admissible at trial under Indiana Code Section 35-37-4-6." C.M. was a child abuse victim.

Posted by Marcia Oddi on Thursday, April 15, 2004
Posted to Indiana Decisions

About the Indiana Law Blog - Tomorrow is the day

April 16th is tomorrow and that is the day we will celebrate the Indiana Law Blog's One Year plus One Month Anniversary. I have now received several nice notes, which I will share tomorrow.

Today it turns out that I will be occupied much of the day, so there will be few if any new entries until later, at which point I will catch up.

Posted by Marcia Oddi on Thursday, April 15, 2004
Posted to About the Indiana Law Blog

Wednesday, April 14, 2004

Law - What would Daniel Boone do today?

This story from the Ann Arbor Michigan News shows how a property owner's dream of installing a little log cabin (made in Indiana) turned into a legal nightmare:

The cabin, measuring 15 feet by 45 feet and made by Amish workers in Indiana, was brought in on a flatbed last spring, completely furnished. Soon, she began getting phone calls, notices and visits from township and county officials.

The cabin lacked a building permit, she was told. It has to have a septic system. The township zoning ordinance prohibits more than one dwelling on a single lot zoned for agriculture. There are standards on ingress and egress to be met. Frontage setbacks.

Washtenaw and Lodi officials filed a civil suit in Washtenaw County Circuit Court to have the structure removed. * * *

"Sure, it's a cute little structure, but she didn't receive any kind of building permit. There are certain things in our zoning ordinance that require that you have to meet certain criteria," Godek said. Unless the 10-acre lot is split, the cabin constitutes an illegal second dwelling, she said.

After getting no response to the township's notices and phone calls, the township board turned the matter over to township attorney Jesse O'Jack for litigation. * * *

"It just doesn't make a lot of sense," Demmer said. "I was going to contest it, but it's just going to cost too much money fighting in court. They are sticking to the rules, and I should have looked into it." She added: "This little house on the prairie causes a lot of headaches."

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to General Law Related

Indiana Decisions - 7th Circuit Opinions Posted Today

Among the 7th Circuit opinions posted today are LEHN, DONALD A. v. HOLMES, MICHAEL L. (4/14/04 USCA 7th Cir.) and KIJONKA, HENRY S. v. SEITZINGER, MICHAEL (4/14/04 USCA 7th Cir.) In LEHN, a pro se prisoner appeal from the SD Ill., the opinion by Judge Diane P. Wood begins:

Donald Lehn knows a lot about the ill effects of exposure to second-hand tobacco smoke. He has a Ph.D. in biochemistry and is a former Resident Research Assistant in the Laboratory of Molecular Carcinogenesis in the Division of Cancer Etiology, National Cancer Institute, which is affiliated with the National Institutes of Health, in Bethesda, Maryland. Lehn’s current interest in smoke is, however, personal rather than professional. He is currently serving time in the Illinois Department of Corrections (IDOC), and he has sued to challenge both certain IDOC practices that allegedly are denying him his right of access to the courts and IDOC policies that tolerate excessively high levels of environmental tobacco smoke (ETS) in the state’s prisons. Lehn’s pro se complaint was dismissed by the district court because the judge believed his claims were either rendered moot after Lehn was transferred to a different prison facility or were unripe for adjudication. In the alternative, the court granted the prison officials’ motion to dismiss Lehn’s access-to-courts claim for failure to state a claim under FED. R. CIV. P. 12(b)(6). We agree with Lehn that his access claim is ripe for judicial consideration and that both the access-to-courts and the ETS parts of his complaint state claims for which relief may be granted. Therefore, we reverse and remand this case for further proceedings.
In KUONKA, where the panel affirms in part, reverses in part, and remands, Judge Posner quickly begins to sketch the "implausible fact situation":
Fact is often stranger than fiction because most writers of fiction try to make their stories plausible. The events out of which Kijonka’s suit arises, though fact, are implausible. About a decade ago, Kijonka, then a state trooper, first became acquainted with Berle “Peanut” Shoulders, Jr.— an ex-con and bad boy of tiny Lawrenceville (population 5,000)—when Kijonka arrested him for a traffic violation. Despite this inauspicious beginning, their relationship blossomed. Shoulders drummed up votes for Kijonka when the latter ran successfully for mayor in 1997, and Kijonka rewarded him by making him the city dog catcher. Shoulders’ city employment, however, proved to be turbulent. Allegations that he used a weapon unlawfully, was involved in drug deals, threatened Kijonka and others, and, worst of all, obtained payment for dogs that he didn’t catch (the city dog catcher is paid on a per-dog-caught basis) caused Shoulders to be fired. In revenge he took to stalking Kijonka—driving slowly by his house and shouting threats and obscenities.

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to Indiana Decisions

Indiana Decisions - Four Court of Appeals Decisions Posted Today

Brandy D. Stanifer v. Travis G. Wright (4/14/04 IndCtApp) [Torts]
Sharpnack, Judge

Brandy Stanifer appeals the trial court’s judgment in favor of Travis Wright after a jury returned a verdict for Wright on Stanifer’s negligence claim. She contends that the jury’s verdict was contrary to law. We affirm. * * *

We addressed a similar issue in Berger v. Peterson, 498 N.E.2d 1257 (Ind. Ct. App. 1986), reh’g denied. There, Berger was driving north on a state highway and Falk was traveling south on the same state highway. Falk crossed over the centerline and struck Berger. Id. Falk died in the accident, and Berger filed a complaint against Falk’s estate, alleging that Falk’s negligence caused the accident. Specifically, Berger alleged two violations of Indiana motor vehicle statutes, first, Falk was driving too fast for existing conditions, and second, Falk crossed the centerline. The estate argued that the collision was the result of conditions beyond Falk’s control and, therefore, any statutory violation was excused. During the trial, the estate presented evidence that on the date and time of the collision, the roads were icy, temperatures were below freezing, and the area near the accident was experiencing blowing snow. The jury returned a verdict in favor of the estate and against Berger.

On appeal, we acknowledged that Falk had violated the section of the Indiana Code, which required her to drive on the right half of the roadway, and by violating the duty imposed by the Indiana Code, Falk was presumed to have acted negligently. We also recognized that the presumption of negligence was rebuttable, and the estate had the burden of rebutting the presumption. We noted, “[i]t is now settled that a person may excuse or justify the violation of a statute in a civil case for negligence by sustaining the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” (We held that the estate presented sufficient evidence to rebut the presumption of negligence, and the jury’s verdict was not contrary to law.

VAIDIK, J. concurs
MATHIAS, J. dissents with separate opinion
I respectfully dissent. But I do so from an unusual perspective which I feel should be disclosed. I was one of the attorneys who represented the plaintiff-appellant in Berger v. Peterson, 498 N.E.2d 1257 (Ind. Ct. App. 1986) almost twenty years ago. I have not recused myself from this case because its result cannot benefit or harm my former client. I write in dissent because I believe Berger v. Peterson and before it, Blankenship v. Huesman, 173 Ind. App. 98, 362 N.E.2d 850 (1977), were wrongly decided. * * *
Provident Bank v. Tri-County Southside Asphalt, Inc. (4/14/04 IndCtApp) [Property, Real Estate; UCC, Banking]

On petition for rehearing. Original 2/27/04 CtApp opinion discussed here.

Chanelle Linet Alexander v. Jack Cottey, et al. (4/14/04 IndCtApp) [Procedure]

On petition for rehearing. Original 1/13/04 CtApp opinion discussed here.

Graycor Industrial v. Anthony Metz (4/14/04 IndCtApp) [Worker's Compensation]

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to Indiana Decisions

Indiana Decisions - Coverage of the arguments yesterday in the East Chicago voter fraud case

As reported here in the Indiana Law Blog earlier this week, yesterday in Fort Wayne the Indiana Supreme Court heard oral arguments in the case of East Chicago voter fraud case, Pabey v. Pastrick. The Munster NWI Times covers the arguments here today. Some quotes:

FORT WAYNE -- In arguments before the Indiana Supreme Court on Tuesday, attorneys for challenger George Pabey asked the justices to order a special election for the East Chicago mayor's office because last year's Democratic primary was tainted by pervasive fraud.

Attorneys for Mayor Robert Pastrick argued the challenger has no legal right to a court-ordered remedy and could not prove that it was impossible to decide who won the May 2003 primary. They asked the court to uphold the earlier decision of trial judge Steven King, but not grant Pabey's request for a special election. In a strongly worded ruling, King found evidence of widespread fraud and threw out 155 absentee ballots. That still wasn't enough to give the victory to Pabey, who won by 199 votes at the polls, but lost after a count of absentee ballots that favored Pastrick by 2-1.

The Gary Post-Tribune also covered the arguments in this story [Remember - the Tribune does not archive its stories]. Some quotes:

FORT WAYNE — Members of the state Supreme Court gave few hints whether they believe the 2003 East Chicago primary was so fogged by corruption that the court will order a special election.

The justices have never ordered a special election under state election statutes.

Attorneys for East Chicago Mayor Robert Pastrick and the Lake County Election Board argued the high court has no authority in cases of fraud.

Attorneys for his challenger, former East Chicago City Councilman George Pabey and the office of Indiana Attorney General Steve Carter, argued that the instances of fraud and abuse detailed by Special Judge Steven King in his trial court ruling painted an overwhelming case. * * *

Attorney General Steve Carter intervened in the Supreme Court case as a friend of the court. His argument is that the court does have authority to order a special election. After the hearing, he held a news conference to say that cleaning up the election process in East Chicago had statewide implications. “We think that this is the only way to restore public confidence in the elections,” Carter said.

Though the contest has been over for nearly a year, Carter said he did not see a legal problem with ordering a special election for the May 2003 mayoral primary and following with a general election.

In more than an hour of testimony, none of the justices asked questions about the mechanics of running a special election. The court has the option of ordering the election, denying Pabey’s challenge or sending the case back to trial judge to make a final decision, Cotzan said.

[More] The WISHTV Indianapolis site has a brief story today titled "State High Court Mulls Special Election for East Chicago Mayor." It also links to an earlier (but undated) story by political reporter Jim Shella titled "'Sidewalks for Votes' Alleged in East Chicago" that begins:
Chris Sautter’s documentary film about the 1999 Mayoral Primary race in East Chicago, "The King of Steeltown," includes a lengthy sequence about a sidewalk reconstruction program. The project was carried out by the administration of East Chicago Mayor Robert Pastrick, an icon in Indiana politics now seeking his ninth term. (In 1999 Pastrick was facing a serious challenge from Lake County Democratic Chairman Stephen Stiglich.)
For more on "King of Steeltown" (the movie) check here and here.

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to Indiana Decisions

Environment - Editorial on Mercury Contamination of Indiana's Waterways

The Lafayette Journal & Courier today carries a "Guest Column" with a number of statements about mercury contamination of Indiana waterways:

Indiana has at least 14 rivers at level five with fish so contaminated they are unsafe for anyone to eat. Unfortunately, most anglers are unaware of the health threat, thereby putting their families at risk. This fact doesn't seem to concern the Indiana State Department of Health or the Indiana Department of Natural Resources.

The DNR's colorful, 34-page, 2004 Fishing Guide contains a reference to the advisory on page 11, with a highlighted paragraph which reads: "Don't stop eating sport-caught fish." We suspect they're trying to avoid discouraging Hoosiers from buying Indiana fishing licenses, a major source of revenue for the financially troubled agency.

The state health department has published their advisory in a 68-page booklet, but few know it exists or how to interpret the data. The "advisory" is presented in very technical and non-threatening language, leading consumers to believe there's little risk. After all, wouldn't our government tell us if eating fish were a public health threat? At the very least wouldn't they place warning signs at all public fishing sites to alert citizens? That's what other states do.

NOTE: As a result of the above, I just looked for the DNR Booklet mentioned and found it here online (Fishing Guide). Included among its links is one titled Fish Consumption Guide that leads directly to the Health Department's Fish Advisory materials.

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to Environmental Issues

Environment - New report reviews records of electric power companies

This story today in the NY Times highlights a new report:

sponsored by the Coalition for Environmentally Responsible Economies, which includes environmental, investor and business groups; the Natural Resources Defense Council, an environmental group; and the Public Service Enterprise Group, the parent of New Jersey's largest utility. It focuses on data collected by the federal government from the utility industry covering 1991 to 2002.
The report, titled "Benchmarking Air Emissions," is available via this page. Also available from this page is the data used:
The tables at left, presented in a sortable database to facilitate analysis and visual comparison, detail emissions as well as emission rates for the 100 largest U.S. power producers, which account for about 90 percent of reported electricity generation and emissions. Table 1 looks at emissions data, while Table 2 uses that data to rank each company against the others.

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to Environmental Issues

About the Indiana Law Blog - One Year plus One Month Anniversary

Last Wednesday I announced that, since I had missed recognizing the First Anniversary of the Indiana Law Blog, we would celebrate the One Year plus One Month Anniversary on Thursday, April 16th. I encouraged readers who enjoy the Indiana Law Blog to drop the ILB a note, to perhaps be included in an anniversary entry.

So far the Indiana Law Blog has received NO notes, perhaps indicating that we have NO readers (other than those kind souls who have written in the past), which could be a bit disappointing.

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to About the Indiana Law Blog

Law - Another DNA Dragnet in the News

This story today in the Washington Post, date-lined Charlottesville, reports:

Johnson is among 197 black men in the Charlottesville area who have been asked to provide genetic samples in recent months as part of a police hunt for a serial rapist, Charlottesville police said. The so-called DNA dragnet has caused racial tensions and raised questions about civil liberties and basic human rights in the city that is home to the University of Virginia. Some say the DNA sampling smacks of racial profiling.

Charlottesville Police Chief Timothy J. Longo Sr. and the city's chief prosecutor, David Chapman, have defended the tactic, saying that it is legal and that they are simply doing everything possible to catch a man who has terrorized the community. But after the practice was criticized at a community meeting on the U-Va. campus Monday night, the two men said they would review the massive DNA sampling. * * *

Although DNA sweeps are rare, they have been used, and have generated controversy, across the country and in England. Last year, police in Baton Rouge, La., collected DNA samples from about 1,000 men as they searched for a serial killer.

Kent Willis, executive director of the American Civil Liberties Union of Virginia, said authorities have cast too broad a net, and he has asked Charlottesville police to develop "more precise criteria" about which men should be approached.

Longo maintains that the DNA sampling is not racial profiling, because several victims identified the rapist as a black man. If the rapist were white, he said, his officers would be swabbing the cheeks of white men. But he conceded that he is unsure whether the sampling should continue.

The Louisiana sweep referred to occurred last summer. CBSNew.com reported at the time:
After examining DNA from more than 1,000 people, police issued a murder warrant Monday for a man described as the prime suspect in the killings of five women in south Louisiana, saying his DNA linked him to one of the deaths. * * *

Police conducted a massive 10-month DNA dragnet for the suspect, taking cheek scrapings and swabbings from more than 1,000 men. The search led some men to complain they felt pressured to volunteer their DNA to rid themselves of suspicion. Defense attorneys have questioned the legality of the search.

"If this is the right guy and if the identification and arrest of him is related to that DNA sweep several months ago -- right now those are two big ifs -- we are likely to see law enforcement agencies all over the country try out this sort of DNA dragnet when faced with a continuing crime spree ... especially if the courts don't do anything to stop them," said CBSNews.com Legal Analyst Andrew Cohen.

A related story from the Christian Science Monitor of 2/21/03, titled "In Louisiana, debate over a DNA dragnet", reported:
As the database grows, advocates say it becomes a more powerful tool for law enforcement - and a bigger concern for critics such as the American Civil Liberties Union of Louisiana, which holds that "the samples collected implicate privacy concerns under the Fourth Amendment," according to executive director Joe Cook.

Later uses in unrelated criminal investigations are one concern, says Mr. Cook. Another question is whether the searches are consensual - and whether initial refusals, like Kohler's, are wrongly construed as probable cause, the cries of him who doth protest too much.

In a story about a DNA dragnet in Florida, the St. Petersburg Times reported 6/17/03:
Miami police Chief John Timoney said state law directs investigators to maintain the information in the state DNA database in Tallahassee. He said the voluntary testing has been administered based on tips called into investigators and whether the men fit the description of the person in composite sketches. He said every man asked to submit DNA evidence - through a cotton swab of his saliva - has been asked to sign a consent form. "The vast majority have signed them willingly," Timoney said. "Some people have refused and have been allowed to go on their way. It's not a coercive thing, it's not been baseless, so legally we think we're fine." * * *

Suzanne Livingston, the director of forensics services for the Florida Department of Law Enforcement, said state law allows the state DNA database to hold both volunteer samples and those from people convicted of a crime. The database contains about 170,000 samples from offenders and more than 5,800 voluntary samples. Livingston said the national DNA database does not accept volunteer samples so the information would not be accessible by federal law enforcement.

Posted by Marcia Oddi on Wednesday, April 14, 2004
Posted to General Law Related

Tuesday, April 13, 2004

Indiana Decisions - Plaintiff's attorneys chastised by federal court magistrate judge

Magistrate Judge Tim A. Baker of the S.D. Indiana, Indianapolis Division, has posted online an opinion signed 4/8/04 in the case of IP Innovation v. Thomson Inc. Some quotes:

Before resolving these motions, however, the Court feels compelled to address a tone of incivility in Plaintiffs’ submissions. For example, Plaintiffs accuse the Defendant of making intentional misrepresentations in its filings, of ignoring and overlooking facts, and of engaging in “subterfuge.” Plaintiffs assert that Defendant’s response “ignores key facts and distorts many others in an effort to dissemble and confuse the actual record.” Plaintiffs contend that Defendant makes “unsupported,” “unfounded,” and “manufacture[d]” claims. Plaintiffs even go so far as to assert that defense counsel “knows, for a fact, that the claims he makes in defendant’s responding papers are incorrect.” These barbs are, unfortunately, merely a few of the accusations Plaintiffs fling Defendant’s way. * * *

Plaintiffs’ briefs contain additional accusations of this nature, but the foregoing examples suffice to demonstrate the incivility of Plaintiffs’ submissions. Accusations such as these are no trifling matter. If Plaintiffs’ contentions were true, Defendant could be in violation of a number of the Rules of Professional Conduct, including Rule 3.1 (Meritorious Claims and Contentions), Rule 3.2 (Expediting Litigation), Rule 3.3 (Candor Toward the Tribunal), and Rule 3.4 (Fairness to Opposing Party and Counsel). Yet as set forth below, the Court has sided with Defendant’s positions on every substantive issue. As a result, Plaintiffs’ attacks are not only improper, they are wholly unfounded. * * *

In accord with the foregoing authorities [the Court here has first presented an entire page of authority], the undersigned expects civility and professionalism from the attorneys litigating cases before this Court. As a reminder to all attorneys of their duties in this regard, the Court will publish this opinion on its website with the expectation that it will be adhered to by members of the bar in the future. Otherwise, as Judge Williams stated in [IJR, Inc. v. Sodick, Inc., 1987 WL 26105, at *1 (N.D. Ill. 1987)], in the future “this court will not hesitate to use the powers available to it to ensure that counsel treat each other with the level of respect expected from anyone admitted to the bar.” [emphasis added]

Thanks to Ed Feigenbaum of Indiana Daily Insight for the "heads up."

Posted by Marcia Oddi on Tuesday, April 13, 2004
Posted to Indiana Decisions

Law - Overtime suits being filed in record numbers

This story today originating with the Washington Post, headlined "Workers filing record number of overtime suits: Back-pay receipts most in a decade," includes a reference to Indiana:

Workers around the country are filing a record number of federal lawsuits alleging employers are breaking labor laws by asking them to work longer than 40 hours without proper pay. * * *

Wal-Mart Stores Inc., the nation's largest retailer, is facing more than three dozen lawsuits alleging workers were paid less than they deserve under law, including suits in California, Florida, Massachusetts, Oregon, Indiana and Minnesota. * * *

Attorneys who represent workers say lawsuits and enforcement actions are increasing because employers are violating labor law more than in the past. One, Adam T. Klein, said that weak enforcement of labor laws under the Clinton and Bush administrations has left the private bar "to pick up the slack."

Brad Seligman, a lawyer who helps fund wage-and-hour lawsuits for workers, said the Labor Department is changing the overtime rules because workers are winning so often.

"If these lawsuits are frivolous, why are the settlements and judgments so large?" Seligman said. "Companies are being caught with clear-cut violations of law that for years they've gotten away with."

Attorneys who represent employers counter that the overtime rules are no longer suitable for a modern workplace.

"The rules are so outdated, they are a litigator's dream," said Larry Bridgesmith, an attorney who represents corporations.

Bridgesmith said a court decision that allows workers to be notified they might be eligible for back pay had "increased the level of interest" among plaintiffs generally and made them eager to pursue claims.

Posted by Marcia Oddi on Tuesday, April 13, 2004
Posted to General Law Related

Indiana Decisions - One Appeals Court opinion posted today

Anthony Tinker v. State of Indiana (4/13/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Tuesday, April 13, 2004
Posted to Indiana Decisions

Environment - Should the State site local Indiana landfills?

Should the State site local Indiana landfills? That is the recommendation today from this editorial in the Munster NWI Times. Some quotes:

By the end of April, Porter Superior Court Judge Bill Alexa plans to issue a ruling on the proposed Porter County landfill. The landfill, proposed by Porter Development, was rejected by the Porter County Board of Zoning Appeals. It then entered the next stage -- the courts, where the real landfill siting decisions are made. Whichever side loses will appeal until the last legal avenues are explored or money runs out.

It would make more sense to push landfill siting decisions to the experts rather than the courts. The Indiana Department of Environmental Management has more expertise to make this kind of decision. A landfill should not be approved without thorough study of not only the environmental science involved in the opening, operation, closing and post-closing monitoring phases, but also of the financial wherewithal of the developers and of the backgrounds of each of the investors.

Posted by Marcia Oddi on Tuesday, April 13, 2004
Posted to Environmental Issues

Monday, April 12, 2004

Environment - Manure odor calculator

Seriously! This goes along with the numerous postings we've done on confined feeding issues in Indiana. The University of Minnesota has a website on Manure and Odor with a lot of useful information. What really caught my interest is a program called OFFSET, short for the Odor From Feedlots Setback Estimation Tool. From the introduction:

When discussing odor problems related to animal agriculture, the following questions often arise:
  • How far does odor travel?
  • Are animal numbers or animal species accurate predictors of nuisance odors?
  • How much odor control is needed to solve an odor problem from an existing facility?
  • Can the odor impact from a new facility be predicted?
Answers to these questions are as varied as the people having the discussion. Until now, scientific methods to predict odor impacts did not exist. This publication discusses a new tool that has been developed at the University of Minnesota to answer some of these questions. The tool, "Odor From Feedlots Setback Estimation Tool" (OFFSET), is the result of four years of extensive data collection and field testing. It is a simple tool designed to help answer the most basic questions about odor impacts from livestock and poultry facilities.

OFFSET is designed to estimate average odor impacts from a variety of animal facilities and manure storages. These estimations are useful for rural land use planners, farmers, or citizens concerned about the odor impact of existing, expanding, or new animal production sites. OFFSET is based on odor measurements from Minnesota farms and Minnesota climatic conditions. As such, the use of OFFSET for estimating odor impacts in other geographic areas should be done with caution and through consultation with the authors of this publication.

Posted by Marcia Oddi on Monday, April 12, 2004
Posted to Environmental Issues

Law - Still more on juror issues

The new ombundsman column in the Sunday NY Times Outlook section explores the implications of publishing information about "Juror #4" in a column titled "The Juror, the Paper and a Dubious Need to Know." The column is written by Daniel Okrent, described as the public editor - the reader's representative. Okrent writes:

Where I now differ from nearly all the reporters and editors with whom I've discussed the subject (including Glater) is in my newfound belief that even after a trial has ended, an individual juror's role in deliberations - arguments presented, behavior exhibited, votes taken - should remain private if the juror wishes to keep it private.

Most of those I spoke with were astonished to learn I was taking this position, so contrary is it to widely accepted practice. (Remember: nothing excites reporters more than a closed door.) Several were also surprised to learn that reporting on jury deliberations is in fact a fairly new phenomenon, and hardly one of the foundations of robust journalism. In 1978, a federal appellate court confirmed the right of reporters to interview jurors after a trial's conclusion. But it wasn't until 1982, when Steven Brill of The American Lawyer interviewed and wrote about the jurors in a major libel case, that this style of reporting began to approach common practice. It was in time rendered conventional by the trials of William Kennedy Smith, Leona Helmsley and O. J. Simpson, among others - people whose visibility was high enough, and their alleged crimes juicy enough, to give every juror coming out of such a trial a personal posse of reporters.

Scroll down for earlier entries on juror issues.

Posted by Marcia Oddi on Monday, April 12, 2004
Posted to General Law Related

Economic Development - State of NY creates entity to lure Indiana business to New York

The GothamGazette.com has a fascinating story today on Public Authorities. According to the article, the State of New York has 640 authorities. More:

While they are created by the state government and operate for a public purpose, they are exempt from many of the rules and review under which government agencies normally operate. These authorities run the airports, operate bridges and tunnels, foster economic development, encourage development and oversee the subways and buses.

And, an increasing number of critics charge, they also:

  • Provide jobs and contracts to political cronies
  • Amass excessive amounts of debt
  • Operate outside public scrutiny and taxpayer control
  • And in general defy standard practices of good government.
Public authorities are the Enrons of state government, New York State Attorney General Elliot Spitzer charged in a speech last year, "hiding spots, breeding grounds for inertia, incompetence and, at times, worse." Faced with such concerns, public officials have proposed to reform the system. Ideas range from a modest directive issued by Governor George Pataki, whose appointees run many of the authorities, to State Assembly member Richard Brodsky's call to eliminate authorities entirely.
There is much more, including details about how Robert Moses adopted this concept for his own purposes. (Immediately I thought about Indiana's most recent effort in this area, the Indiana Economic Development Commission, but I'll leave that for another post.)

After listing and describing a number of these New York authorities, the author points to "the Overcoat Development Corporation."

And what about the Overcoat Development Corporation? Although it is allegedly located at 633 Third Avenue, no one there had heard of it, a New York Times reporter found. He discovered the agency is what remains of an effort to lure an Indiana coat company to Amsterdam, New York... in 1986.
Here is the NYT article, from March 20th. It concludes:
JUST as we were piecing things together, someone from state government called back with the "official" story:

The corporation is the remnant of an economic-incentive effort that offered a favorable lease on a building in Amsterdam, N.Y., to lure a men's outerwear company from Indiana in 1986. The company eventually folded, but the O.D.C. continued to exist because of a long-term lease it signed with another company to fulfill property-tax obligations.

"It's basically a dormant corporation," the state official explained.

Posted by Marcia Oddi on Monday, April 12, 2004
Posted to Indiana economic development

Indiana Decisions - Four Court of Appeals Decisions Posted

In Re Adoption of Infant Female Fitz (4/12/04 IndCtApp) [Family Law]Kirsch, Chief Judge

Here, the parties stipulated that Rudd failed to give notice within the thirty day time period. Accordingly, his consent to the adoption of Infant Female Fitz was irrevocably implied. * * *

Rudd also argues that the trial court erred in denying his motion to strike the Pritts’ appearance and vacate the adoption decree. However, IC 31-19-14-3 provides that a person who is served with notice of an adoption is prohibited from contesting the adoption more than thirty days after the date of the service of the notice and may not otherwise challenge an adoption decree. Again, Rudd was served with notice of the adoption, but failed to raise his challenge within the thirty-day period. Accordingly, he may not now challenge the adoption decree. The trial court did not err in denying his motion.
FRIEDLANDER, J., and BARNES, J., concur.

Burd Management, LLC v. State of Indiana (4/12/04 IndCtApp) [Condemnation]
Kirsch, Chief Judge
The trial court erroneously granted summary judgment in favor of the State after concluding, as a matter of law, that the State, through INDOT, was not required to prove that an offer was made prior to filing a condemnation action. The evidence presented before us shows that the appraisals were not attached to the affidavits of the appraisers. Therefore, we reverse the trial court’s order granting summary judgment in favor of the State. We remand this case to the trial court with instructions to determine, by summary proceedings or after evidentiary hearings, whether a good faith offer based on fair market value was made by the State for all of the land appropriated from Burd.
Sandra E. Beike v. Walter C. Beike (4/12/04 IndCtApp) [Family Law]
Robb, Judge
Sandra Beike appeals the trial court’s order granting Walter Beike’s Motion for Relief from Judgment which adjusted the dissolution decree to account for a decline in value of Walter’s pension benefits. We affirm. * * *

Here, as in Case, Sandra has not alleged that the decline in the value of Walter’s pension was caused by or contributed to by any of Walter’s actions. Rather, the value of the pension plan declined due to National Steel’s bankruptcy. Therefore, as in Case, absent express language to the contrary, the risks and losses associated with the pension plan should be borne by both parties as their respective interests were allocated by the trial court. * * *
Conclusion. The trial court did not abuse its discretion when it granted relief from the decree to ensure that both Sandra and Walter would bear the risks and the rewards of the pension plan. The judgment of the trial court is affirmed.
SULLIVAN, J., and RATLIFF, SrJ., concur.

Samuel Hoggatt v. State of Indiana (4/12/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Samuel Hoggatt appeals the trial court’s grant of the State’s motion to correct sentence. In light of the Indiana Supreme Court’s recent opinions on motions to correct sentences, which narrowly confine such motions to claims apparent from the face of the sentencing judgment, we conclude that Hoggatt’s sentence is not facially erroneous and therefore reverse the trial court. * * *

In reaching this conclusion, we make some observations. In arriving at its holding in Robinson, the supreme court was faced with the factual scenario where the defendant filed the motion to correct sentence in the trial court. Here, however, the State filed the motion to correct sentence in the trial court. This distinction makes a difference because if the thirty-day deadline for filing a motion to correct error or notice of appeal has passed and the sentence is not facially erroneous, then the defendant still has the opportunity to challenge his sentence through post-conviction relief proceedings. The State does not have this same opportunity. See Ind. Post-Conviction Rule 1, §1(a) (providing that the remedy of post-conviction relief is available to “[a]ny person who has been convicted of, or sentenced for, a crime by a court of this state[.]”). This creates a difficult situation for the State. If the sentencing defect is erroneous on its face, then the State has an unrestricted amount of time to file a motion to correct sentence. However, if the sentencing defect is discovered by resorting to other matters in or extrinsic to the record – which, presumably, makes that defect more difficult to discover than a facially erroneous one – then the State must take action within thirty days or else forfeit its right to challenge an erroneous sentence. Nevertheless, our supreme court has instructed, “As to sentencing claims not facially apparent, the motion to correct sentence is an improper remedy. Such claims may be raised only on direct appeal and, where appropriate, by post-conviction proceedings.” Robinson, 2004 WL 434202 at *3. Because the thirty-day deadline has long since passed, the State is left without a remedy to challenge Hoggatt’s sentence.
SHARPNACK, J., and MATHIAS, J., concur.

Posted by Marcia Oddi on Monday, April 12, 2004
Posted to Indiana Decisions

Indiana Decisions - East Chicago voter fraud case oral arguments tomorrow

The Indiana Supreme Court will hear oral arguments in the case of Pabey v. Pastrick tomorow in Fort Wayne:

The Indiana Supreme Court will hold an oral argument in Fort Wayne on Tuesday, April 13, 2004 at 1:45 p.m. in the City Council Chambers, Chief Justice Shepard announced today.

The Court will hear the case of Pabey v. Pastrick, which involves the validity of the Democratic primary election for the Mayor of East Chicago, Indiana that was held last May 6, 2003. The defeated candidate, George Pabey, filed an action in Lake Superior Court, contesting the primary victory of incumbent Mayor Robert Patrick.

The special judge appointed to hear the case upheld the election result and the Court of Appeals later dismissed the appeal on procedural grounds. The Indiana Supreme Court granted transfer and has assumed jurisdiction over the appeal.

The argument will last about 40 minutes. The public and the media are welcome to attend the hearing. Seating will be on a first come, first served basis. The local public access television station, Access Fort Wayne, will also tape the event for later broadcast.

For background, here are earlier Indiana Law Blog entries, from October 1, 2003, Jan. 11, 2004, and from March 14, 2004. See also this April 6, 2004 story from the Munster NWI Times, headlined: "Federal court takes up East Chicago election dispute: Judge says ruling will come after state's highest court hears alleged vote fraud case." Some quotes:
U.S. District Court Judge Allen Sharp heard arguments from Pabey's and Pastrick's lawyers, but did not make a decision on whether he will grant or dismiss Pabey's request for a new election. * * * Sharp said federal courts have reversed redistricting schemes that discriminate against minorities. "The real question is whether this court can order a new election," he said. "I'm not saying I can't, though." * * *

Schererville lawyer James Wieser, who represents the Lake County Election Board, and Stephen R. Stiglich, county Democratic Party chairman, said Monday that Pabey's call for a new election is hobbled by the fact that Indiana law did not offer that remedy last year.

Indiana Attorney General Steve Carter is expected to tell the Supreme Court next week it can order a new election anyway because the state Legislature amended the law earlier this year to permit special elections in the case of fraud.

Posted by Marcia Oddi on Monday, April 12, 2004
Posted to Indiana Decisions

Sunday, April 11, 2004

Indiana Law - Newspapers' Property Tax Information Aids

Marion County. The Indianapolis Star has made available an online Marion County property tax database since last year, when our new property tax assessments came out. The information provided is useful, but limited. What I really wanted to see (and in fact wrote to the Star about) was a calculator that would allow the taxpayer to see exactly how their tax was calculated, and to do "what if" calculations.

Allen County. Some other major counties are just coming in with their property tax results and their local papers are just putting information online for their readers. The Fort Wayne Journal Gazette is providing a tax info service (similar to that of the IndyStar) for Allen County taxpayers, with this preface:

Because of delays caused by reassessment, tax bills for Allen County property taxes payable in 2003 were not calculated until recently. Taxpayers have paid bills based on 70 percent of the bill from the year before. Final bills for whatever remains are to be mailed by April 8 and will be due May 10. As a public service to taxpayers who have waited more than a year to find out what their tax bill would be after reassessment, The Journal Gazette is posting all 147,000 bill amounts online from data provided by the Allen County auditor and treasurer's offices. [my emphasis]
Both the Marion and Allen County papers' information allows the user to draw comparisons with similar properties.

[Allen County Update] It turns out the Fort Wayne News-Sentinel has additional information. This page allows you to find property tax information for Allen County in 2002 and 2003: "The 2002 values and taxes are before the countywide reassessment. The 2003 values and taxes are after the county's reassessment. How much each property owner will pay in taxes in 2004 is based on the 2003 values, and are available here." Further, you can find prices for properties sold in Allen County since 1998.

Further, via this page, you may search Allen County tax warrants by address, by business name (DBA, or doing business as) or last name of the person to whom the warrant was issued, or by warrent type.

Lake County. But I was blown away this morning when I found the Lake County Tax Estimator provided by the Munster NWI Times. It starts with a much better database of information than the Star has made available as its end product. And once you have an assessed valuation, you can use the tax calculator to get an idea of how each of the provisions of the formula impacts your bottom line.

[Lake County Update] Here is the Gary Post Tribune's Lake County Tax Estimator introductory page. Here is the calculator itself, which is more of a "black box" model, making it not nearly as useful, in my view, as the Times' version. Today's Tribune includes this "Editor’s note":

The Post-Tribune’s online Lake County tax calculator — www.post-trib.com — is updated to calculate more accurately the tax rates on homes assessed at under $70,000. The calculator estimates a full year’s tax bill for 2003. Actual amounts owed vary by taxpayer depending on deductions and how much has already been paid.

Posted by Marcia Oddi on Sunday, April 11, 2004
Posted to Indiana Law

Indiana Law - Law changed on sales tax on cars sold to out-of-state customers

See this very interesting story yesterday in the Louisville Courier-Journal on HB 1365, that (among other things) "eliminates a state sales tax exemption that formerly applied to out-of-state residents who bought automobiles, boats and airplanes in Indiana," and its potential ramifications.

The change is found in SECTION 4, on page 4 of the Enrolled Act - an amendment to IC 6-2.5-3-5, effective July 1, 2004.

Posted by Marcia Oddi on Sunday, April 11, 2004
Posted to Indiana Law

Economic Development - Iron nugget plant update

Two stories this weekend: An AP story, mostly a rehash, contains these quotes, which might lead one to conclude that the threat of an Indiana site is simply being used to "play" the Minnesota decision-makers into shortcutting their own approval process:

Steel Dynamics leaders say they prefer to build the first plant in Minnesota because of the proximity of taconite concentrate, the raw material needed to make iron nuggets.

However, environmental review processes for a nugget plant along Lake Superior could take several years. Permitting a plant in Indiana, which doesn't have the same environmental review process as Minnesota, could take six months.

A second story, in the Duluth News Tribune, contains similar language:
An economic-development package that would help Minnesota develop the world's first commercial iron nugget plant could be assembled by state officials by next week. * * * Minnesota Pollution Control Agency Commissioner Sheryl Corrigan and Department of Employment and Economic Development Commissioner Matt Kramer are helping develop the state's package, Layman said. * * *

Steel Dynamics leaders say they prefer to build the first plant in Minnesota because of the proximity of taconite concentrate, the raw material needed to make iron nuggets. However, environmental review processes for a nugget plant along Lake Superior could take several years. Permitting a plant in Indiana, which doesn't have the same environmental review process as Minnesota, could take six months.

Larry Lehtinen, president of Mesabi Nugget, said Friday that permitting for a plant at Northshore or Indiana is under way, and nugget officials remain open to alternatives. "We are open-minded to considering what the state wants to propose," he said.

[Update 4/14/04]"Mesabi Nugget dispute flares is the headline to this story from 4/13/04 in the Mesabi Daily News.

Posted by Marcia Oddi on Sunday, April 11, 2004
Posted to Indiana economic development

Saturday, April 10, 2004

Law - Indiana "cybersquatting" suit in federal court

The Louisville Courier-Journal reported here yesterday:

In what may be the first federal "cybersquatting" lawsuit in Indiana, an Evansville Realtor is accused of pirating a competitor's Internet domain to divert customers to her Web site.

Janice Miller, owner of ERA First Advantage Realty, is being sued for registering 19 Internet domain names that closely resembled the one owned by FC Tucker Emge Realtors, the city's largest real estate firm. When customers would go to one of those 19 Web sites, they would automatically be sent to the First Advantage homepage, according to the lawsuit, which was filed late last week in U.S. District Court.

According to the story, although Miller shut down the domains after being notified by the FC Tucker owners, the owners have brought suit in federal court:
They're suing Miller for damages under the 4-year-old federal Anticyberpiracy Consumer Protection Act, and accusing of her violating their trademarked name, engaging in unfair competition and fraud, and attempting to illegally profit off their company's reputation. * * *

Court officials believe its the first lawsuit of its kind filed in the federal court system in Indiana. It invokes the Anticyberpiracy Consumer Protection Act, a federal law that went into effect in late 1999, as part of legislation that expanded the nation's intellectual property laws.

The act made the "bad-faith" registration of domain names in the .com, .net and .org domains a new type of trademark infringement. Under the law, anyone who in bad faith registers, traffics in or uses a domain name that infringes or dilutes another's trademark has committed trademark infringement. The "bad faith" definition of the law includes the creation of multiple domain names that are confusingly similar to the trademarks of others.

Posted by Marcia Oddi on Saturday, April 10, 2004
Posted to General Law Related

Indiana Decisions - Supreme Court hears Lasik surgery case arguments

Last Thursday, 4/8/04, the Indiana Supreme Court heard arguments in the case of L. Thomas and Norma Sue Booth v. Robert G. Wiley, M.D., et al. Here is the summary of the case from the Court's website:

The plaintiff alleges medical malpractice in connection with several eye surgeries. The Allen Superior Court granted the defendants’ motions for summary judgment based on the statute of limitations. The Court of Appeals reversed and remanded, holding that the cause of action was not discoverable until two months before the statutory limitation period ended and that the complaint was timely filed. See Booth v. Wiley, 793 N.E.2d 1104 (Ind. Ct. App. 2003), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal.
You may listen to the oral argument here.

This story appeared in the Fort Wayne Journal Gazette yesterday. Some quotes:

The crux of the legal argument is when Booth should have known enough to suspect that a Lasik eye surgery first performed in November 1998 might have contributed to severe impairment in his right eye.

Wiley performed the laser surgery on Booth at that time and again in February 1999 based on a referral from Norlund. According to court records, Norlund suggested the surgery despite Booth's history of glaucoma and cataracts.

After the Lasik surgery, Booth underwent several other eye operations in relation to his cataracts.

Under law, Booth had two years from the date of the original surgery - or until November 2000 - to claim malpractice.

But Booth's attorney, James Fenton, contends Booth didn't understand there was a connection between his worsening eyesight and the Lasik surgeries until after that period lapsed.

It wasn't until December 2000 that another doctor told Booth that Lasik surgery should not have been performed because of his pre-existing conditions. Fenton said Lasik surgery conducted before cataract surgery greatly complicates or negates the cataract surgery.

Posted by Marcia Oddi on Saturday, April 10, 2004
Posted to Indiana Decisions

Friday, April 09, 2004

Indiana Decisons - 7th Circuit rules on Jones Act issue

Among the 7th Circuit opinions posted today is HOWARD v. SOUTHERN ILLINOIS RIVERBOAT CASIO CRUISES, INC.

DIANE P. WOOD, Circuit Judge. This controversy arose when 46 individual plaintiffs brought negligence claims under the Jones Act, 46 U.S.C. app. § 688(a), for injuries they allegedly sustained while working aboard a riverboat casino, the M/V Players II (Players II). Players II was permanently moored to the dock at all times pertinent to their claims. The question we must decide is whether this fact is enough to defeat any claim under the Jones Act, which creates a federal negligence remedy for seamen. The district court thought not, but it certified under 28 U.S.C. § 1292(b) the following question for interlocutory review: whether Players II was a vessel “in navigation” covered by the Jones Act, such that the plaintiffs employed on board were Jones Act “seamen.” We agreed to hear the appeal, and we now reverse. * * *

In this case, the undisputed facts doom the plaintiffs’ claims. Players II was an indefinitely moored dockside casino at the time of the alleged injuries and was never moved except to be tested. As a matter of law, we conclude that it was not “in navigation” for purposes of the Jones Act, and thus that these plaintiffs were not within the class protected by that statute.

Posted by Marcia Oddi on Friday, April 09, 2004
Posted to Indiana Law

Environment - U.S. EPA name from the past in the news

An AP Story dtaed 4/8/04 reports:

LOS ANGELES (AP) - The former head of the federal Superfund environmental cleanup program was indicted on charges she concocted an elaborate scheme to defraud a client who had hired her consulting firm to clean up a contaminated site.

Rita Marie Lavelle, 57, who served as an assistant administrator in the U.S. Environmental Protection Agency during the Reagan administration, was charged Wednesday with wire fraud and making false statements to federal agents. Robert Cole, 67, also was indicted for wire fraud. * * *

Lavelle was previously convicted of perjury for lying in testimony to Congress in December 1982. She was fired two months after the testimony in a scandal that also forced the resignation of the agency's chief.

Prosecutors in that case said Lavelle lied when she told Congress she did not know her former employer, Aerojet-General Corp., was involved in a toxic waste enforcement case. She was sentenced to six months in prison and fined $10,000.

Here is the EPA press release dated Feb. 18, 1982 that begins:
President Reagan today announced his intention to nominate Rita M. Lavelle to be assistant administrator of the U.S. Environmental Protection Agency for solid waste and emergency response.

She will direct the hazardous waste control program and the $1.6 billion "Superfund" program which provides for the emergency cleanup of chemical spills and hazardous waste dumps.

"Rita Lavelle brings over 12 years of professional experience in state government and private industry to the agency" said EPA Administrator Anne M. Gorsuch.

Posted by Marcia Oddi on Friday, April 09, 2004
Posted to Environmental Issues

Indiana Decisions - Transfer list for week ending April 8, 2004

Here is the Indiana Supreme Court's transfer list for the week ending April 8, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, April 09, 2004
Posted to Indiana Transfer Lists

Thursday, April 08, 2004

Law - "Ghost Voting" by a Pennsylvania Legislator

Remember the controversy in the Indiana General Assembly this year when House Speaker Pat Bauer attempted to permit an absent member to vote via computer? Read on:

At the end of March, it was alleged that one of Pennsylvania's senior state representatives, William Rieger (D -- Phila.) had engaged in what is called "ghost" voting. In Pennsylvania, representatives are required to be present for a vote. But Rep. Rieger allegedly rigged his voting button so that it would automatically cast his vote on six bills to be considered that day -- even though he had gone home to Philadelphia.

An ethics investigation has begun. But reports suggest Rep. Rieger is far from the only "ghost voter" in Harrisburg. To the contrary, "ghost voting" seems to be a commonplace bipartisan practice -- with the rule against it often honored only in the breach. Apparently, the voting technology is so primitive, it can be rigged with bubblegum or paperclips.

So begins Professor Marci Hamilton, of the Benjamin N. Cardozo School of Law, Yeshiva University, and a regular Findlaw.com contributor, in her most recent column. Professor Hamilton uses the Pennsylvania situation as her starting point in a very interesting and highly recommended analysis of the pros and cons of remote voting. For instance, she proposes: "If attendance is required, it ought to be for hearings, not for voting."

As for what went on in the Pennsylvania House, here are some quotes from a 3/21/04 story in the Philadelphia Inquirer:

HARRISBURG - On the day Gov. Rendell unveiled his budget to a packed House chamber, Rep. William Rieger voted in favor of all six bills that came up. But Rieger wasn't there. The Democrat was home on Feb. 3, 100 miles away in Philadelphia. A wad of paper shoved into his electronic "yea" button atop his desk did the work for him. Similar sights are in plain view on any given session day in the cavernous lower chamber where so-called ghost voting is a tolerated bipartisan tradition. But, like most state legislatures, rules in the Pennsylvania House explicitly bar it. * * *

Voting rules are different in the state Senate. The 50-member body, a quarter the size of the House, tallies votes the old-fashioned way - by senators individually shouting "yea" or "nay." Party floor leaders can vote for other members if they are on an approved work-related leave outside of the Capitol.

The Pennsylvania Senate and the Florida House are the only legislative bodies that allow someone other than the lawmaker to cast a vote, according to a 1999 study by the National Conference of State Legislatures. "The majority of the nation's legislatures," the report said, "still hold strong to the adage 'You must be present to vote.' "

Posted by Marcia Oddi on Thursday, April 08, 2004
Posted to General Law Related

Law - More on Juror Issues

Updating our recent entry on "Juror Secrecy" (from 4/7/04, or scroll down), here, thanks to Findlaw.com, are links to Martha Stewart's 22-page Motion For A New Trial "because Ms. Stewart was denied her constitutional right to a fair trial by an impartial jury," and the government's 24-page memo in opposition to the motion.

Posted by Marcia Oddi on Thursday, April 08, 2004
Posted to General Law Related

Indiana Decisions - Five new Court of Appeals opinions posted

Stephen John West v. State of Indiana (4/8/04 IndCtApp) [Criminal Law & Procedure]

Jeffrey O. Butrum v. Kathy L. Roman (4/8/04 IndCtApp) [Civil Procedure]
Vaidik, Judge

We find the petition for rehearing to be inappropriate for two reasons. First, the brief neither cites authority nor makes legal argument. Second, Kesler represents Jeffrey. H.B. [the parties’ eighteen-year-old daughter] is not a party in this case. In fact, in the trial court, Jeffrey’s interests were adverse to those of H.B. There is no indication that H.B. has now authorized Kesler [the attorney for Appellant Jeffrey O. Butrum] to speak for her. Thus, it appears that Kesler is trying to do one of two things, both of which are unacceptable. Either he is trying to introduce additional evidence on rehearing by way of H.B. – which he is prohibited from doing at this stage – or he is using H.B. as a mouthpiece to voice his criticisms about our opinion. Although lawyers “are completely free to criticize the decisions of judges,” In re Wilkins, 782 N.E.2d 985, 986 (Ind. 2003), cert. denied, 124 S. Ct. 63 (2003), we find it inappropriate to hide behind a client’s child to do so. Accordingly, we strike the petition for rehearing under Appellate Rule 42 as inappropriate. Rehearing denied.
SHARPNACK, J., and MATHIAS, J., concur.
Glendora Honeycutt, et al. v. Clifford Ong, et al. (4/8/04 IndCtApp) [Tort Claim; s. 1983 Claims]

The Coca-Cola Company, et al. v. Babyback's International, Inc. (4/8/04 IndCtApp) [Contract; Torts]

Beto Partners, LLC v. Unsupervised Estate of Robert E. Bender (4/8/04 IndCtApp) [Estates & Trusts; LLCs]

Posted by Marcia Oddi on Thursday, April 08, 2004
Posted to Indiana Decisions

Indiana Law - Farmland preservation

"Exploiting farmland efforts" is the title of an editorial Wednesday in the Fort Wayne Journal Gazette that warns:

Well-intentioned laws created to preserve family farms and stop urban sprawl have been faltering in the face of shrewd business practices by developers. Indiana has been far from immune to sprawl, but new efforts to control it shouldn’t create loopholes that are exploited in ways seen in other states.
The editorial cites an AP story from April 4, 2004, and a bill introduced last session by State Sen. David Ford, R-Hartford City (SB 362; introduced version) in making its points:
Many states use property tax breaks to encourage small farmers to forgo selling their land to developers. The tax breaks make the difference between survival and financial death for many family farmers. But too often tax breaks fail to either stem urban sprawl or keep small farmers in business. Studies by many universities and think tanks show tax breaks appear to have little effect in the hottest real estate markets.

The rapid conversion of farmland in Indiana into residential and commercial projects can be seen around Indianapolis, northwest Indiana, north of Louisville, Ky., and northern Allen County. Indiana lost more than 400,000 acres of farmland between 1997 and 2002, according to the Indiana Agricultural Statistical Service. The average loss of about 90,000 acres a year is equivalent to the area of Blackford County, an amount that Greg Preston, a state statistician, called “just mind-boggling.”

The state has been more reluctant than most to use tax breaks to dampen the trend and has solid reasons for its caution. Powerful economic forces pushing agriculture toward bigger, more efficient farms are hard to resist. Many older farmers are reluctant to hang on to to their farms when no family member is available to take over. For many on the outskirts of growing cities, the increasing value of their land represents a form of retirement fund after a lifetime of hard work.

Still, the potentially harmful effects of urban sprawl – air pollution, traffic congestion, destruction of scenery and important wildlife habitat – cannot be ignored. The arrival of new residents in the countryside sometimes brings clashes with remaining farmers who have a higher tolerance for the smells, dust and pesticides associated with their work.

State Sen. David Ford, R-Hartford City, tried to balance the competing issues with a farmland-preservation bill in the last session of the legislature. Ford’s bill wisely included provisions for penalizing those who gain from a freeze in their property taxes and then try to develop their land later. The bill limited itself to enforcing voluntary agreements between local governments and landowners, a politically sensible concession to those worried about the state imposing restrictions on what they can do with their land.

[Update 4/13/04] An AP story today in the Indianapolis Star reports: "FORT WAYNE, Ind. -- Indiana farmers worried about urban sprawl are pushing for a state program that would buy up the development rights to large tracts of farmland." The Fort Wayne Journal Gazette posted this lengthy story yesterday that begins:
Indiana lost enough farmland in 2003 to fill Marion County, and even more is expected to disappear under housing developments and strip malls this year. As farm ground continues to disappear under roads, houses and factories, state and local leaders are considering ways to protect the remaining agricultural land. Tax breaks, zoning enhancements and direct purchase of the land's development rights, similar to mineral rights, are options that could help curb suburban sprawl in Indiana.
And the Fort Wayne News-Sentinel had this editorial yesterday that starts:
Does every new Hoosier, from infant to immigrant, need his own paved acre? That question comes to mind when we compare the state's population growth with the development (or destruction, depending on your attitude) of the state's farmland.

Posted by Marcia Oddi on Thursday, April 08, 2004
Posted to Indiana Law

Law - Chicago police look to expand their anti-crime database

This story today in the Chicago Tribune reports "Police push bill to widen DNA bank." Some quotes:

Chicago police and Cook County prosecutors are trying to drum up support for a proposed law that would require anyone arrested for a felony to give up a DNA sample that would be put into a database. * * *

Prosecutors said retrieving DNA after arrests could rule out innocent people more quickly and make sure dangerous offenders are off the streets, said Jerry Lawrence a spokesman for the Cook County state's attorney's office.

"A crucial component of the justice system is to identify the guilty and protect the innocent. DNA can do this more reliably than fingerprints, which have been taken at booking of arrests for years," Lawrence said.

But the American Civil Liberties Union and the state appellate defender's office oppose the measure. They argue that taking a DNA sample after every felony arrest is an unconstitutional invasion of privacy * * *.

Ealier Indiana Law Blog entries on the Chicago database are available here and here.

Posted by Marcia Oddi on Thursday, April 08, 2004
Posted to General Law Related

Wednesday, April 07, 2004

Indiana Decisions - Numerous Court of Appeals and One Tax Court Ruling(s) Posted Today

Commissioner Sally McCarty v. Vicki L. Sanders, et al. (4/7/04 IndCtApp) [Medical Malpractice; Statutory Construction]

Stephen & Suzan Cox v. William E. Paul, DDS (4/7/04 IndCtApp) [Tort]

In the majority opinion, Judge Mathias, with Judge concurring, rule as follows:

Suzan and Stephen Cox (“the Coxes”) filed a complaint against Dr. William Paul (“Dr. Paul”) in St. Joseph Circuit Court alleging that Dr. Paul breached his duty to warn Suzan that her dental implants were potentially defective and subject to recall. The Coxes filed a motion for partial summary judgment arguing that Dr. Paul breached his duty to warn as a matter of law. The trial court denied the motion. The Coxes have filed this interlocutory appeal and argue that the trial court erred when it denied their motion because the undisputed material facts establish that they are entitled to judgment as a matter of law. Concluding the undisputed material facts presented in this case establish that Dr. Paul breached his duty to warn, we reverse and remand for proceedings consistent with this opinion.
In dissent, Judge Sharpnack begins:
I respectfully dissent from the majority’s holding that the trial court’s denial of the Coxes’ motion for summary judgment was erroneous. The majority’s holding is based upon our supreme court’s decision in Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999), reh’g denied. However, I interpret Harris differently than the majority and conclude that the trial court properly denied the Coxes’ motion for summary judgment.
Thomas G. Jaehnen v. Phillip R. Booker (4/7/04 IndCtApp) [Contracts]

Concerns a cognovit provision in a promissory note.

Larry L. Bailey v. Carlus H. Holiday, et al. (4/7/04 IndCtApp) [Real Estate; Property]

In this interlocutory appeal, Larry Bailey (“Contractor”) appeals the trial court’s order releasing the mechanic’s lien on real property of Carlus Holliday and Steve Goodman (collectively referred to as “Owners”) and the trial court’s denial of Contractor’s motion to correct error. Contractor raises one issue, which we restate as whether the trial court abused its discretion when it released the mechanic’s lien on Owners’ property. We reverse.

The relevant facts follow. Owners entered into a written contract with Contractor for the installation of drywall in their residence. After Contractor completed drywall work in the house, he sent an invoice for $5,400 to Owners. Owners disputed the amount and did not pay the invoice.

Contractor filed a notice of intention to hold a mechanic’s lien for $5,400 on Owners’ real estate with the Floyd County Recorder’s Office and later filed a complaint to foreclose the mechanic’s lien. Owners filed a written undertaking pursuant to Ind. Code § 32-28-3-11 and paid $5,400 to the trial court clerk. That same day, the trial court ordered that the written undertaking be approved and that the mechanic’s lien against Owners’ property be released.

Bourbon Mini-Mart, Inc., et al. v. Indiana Department of Environmental Management (4/6/04 IndCtApp) [Statutory Construction]
Sharpnack, Judge

Here the Court affirms the lower court on the question of "whether the trial court correctly applied Ind. Code § 13-7-20-19(b) [now IC 13-23-13-2] in granting IDEM’s motion for summary judgment. We affirm."

In summary, we hold that the trial court did not err by concluding that I.C. § 13-7-20-19(b) should be read in the disjunctive and that IDEM was required to satisfy only one of the four subsections listed in I.C. § 13-7-20-19(b) before it could seek recovery of its actual costs from Mini-Mart. We also hold that there is no genuine issue of material fact with regard to whether IDEM satisfied I.C. § 13-7-20-19(b)(2). Because IDEM is only required to satisfy one of the four subsections in I.C. § 13-7-20-19(b), and we hold that it did satisfy I.C. § 13-7-20-19(b)(2), IDEM properly undertook corrective action and is entitled to seek recovery of actual costs from Mini-Mart. Therefore, the trial court did err by granting IDEM’s motion for summary judgment.
For the forgoing reasons, we affirm the judgment of the trial court. Affirmed.
MATHIAS, J. and VAIDIK, J. concur
Reginald L. Ward v. Indiana Parole Board (4/7/04 IndCtApp) [Criminal Law & Procedures; Statutory Construction]

The question here was: "Whether his parole revocation hearing was conducted within sixty days of his extradition. Concluding Ward’s revocation hearing was timely, we affirm."

Westfield Insurance Company v. Yaste, Zen & Rye Agency (4/7/04 IndCtApp) [Insurance; Tort]

Issues of negligence; fraudulent misrepresentation.

Community Development Corporation v. Property Tax Assessment Board of Appeals of Marion County (4/6/04 IndTaxCt) [Property Tax Exemptions; Not for Publication]

Consequently, because the Indiana Board did not consider the entirety of CDC’s argument, the Court REVERSES and REMANDS the Indiana Board’s three final determinations. Upon remand, the Indiana Board is ordered to instruct the local assessing officials to determine whether CDC’s land qualifies for an exemption under Indiana Code section 6-1.1-10-16(c) and consistent with this opinion.

Posted by Marcia Oddi on Wednesday, April 07, 2004
Posted to Indiana Decisions

About the Indiana Law Blog - Missed the First Anniversary!

I had planned to post an announcement marking the First Anniversary of the Indiana Law Blog, but I just checked the archives and that date would have been March 16!

I had planned to encourage readers who enjoy the Indiana Law Blog to drop the ILB a note, to perhaps be included in an anniversary entry.

But you may still do so -- I'm going to arbitrarily reschedule the celebration to April 16th, marking the One Year plus One Month Anniversary. So you have up until a week from Friday to send the ILB a note, if you so choose.

[Update] Whoops - I used a bad address in the link above -- it is now working.

Posted by Marcia Oddi on Wednesday, April 07, 2004
Posted to About the Indiana Law Blog

Indiana Decisions - 7th Circuit affirms SD Ind.

In LAMBERT, MICHAEL A. v. MCBRIDE, DANIEL (04/07/2004 7th Cir.) a panel today affirmed the decision of the district court (SD Ind., Judge McKinney) denying Lambert’s petition for a writ of habeas corpus.

Posted by Marcia Oddi on Wednesday, April 07, 2004
Posted to Indiana Decisions

Indiana Law - More on Juror Secrecy

Yesterday (scroll down) we posted an entry referencing a Fort Wayne Journal Gazette editorial protesting that "New state court rules and local court practices designed to protect the privacy of people who serve on juries have" combined, in some instances, to make unavailable even the identify of jurors. The editorial concludes: "When six or 12 people determine the fate of a criminal defendant or civil litigant, they have made a decision by and for the public. Their names should be a public record."

What does the new rule say? Indiana Rules of Court: Jury Rules provides:

Personal information relating to a juror or prospective juror not disclosed in open court is confidential, other than for the use of the parties and counsel. The court shall maintain that confidentiality to an extent consistent with the constitutional and statutory rights of the parties.
See also Indiana Rules of Court: Admiistrative Rule 9, currently in effect: "In accordance with IC 5-14-3-4(a)(8), the following court records are hereby declared confidential: ... (L) Personal information relating to jurors or prospective jurors not disclosed in open court, other than for the use of the parties and counsel".

The revised Rule 9, due to go into operation 1/1/05, provides at subsection (G):

(G) Court Records Excluded From Public Access
(1) Case records. The following information in case records is excluded from public access and is confidential: ...
(b) Information that is excluded from public access pursuant to Indiana statute or other court rule, including without limitation: ...
(xii) Personal information relating to jurors or prospective jurors, other than for the use of the parties and counsel, pursuant to Jury Rule 10; ...
The Tyco jury revelations last week have alerted us all to issues of juror privacy. For instance, this quote from a NY Times article of 3/28/04:
Legal experts said they could not think of another instance of such identification in a high-profile case in a big city, though they said that jurors' identities were often widely known in smaller communities. While jurors' names are a matter of public record, news organizations do not ordinarily name jurors while they are deliberating.

"The media may well be interfering with the deliberative process," said Abraham Abramovsky, a law professor at Fordham who has written on jury privacy. "Naming her exerts a kind of pressure to get herself together and join the band."

Whether through the judge's admonitions or outside pressure, then, the risk of undue influence on a juror whose views are known, even if only because she volunteered them, presents the legal system with a difficult problem.

[Today's NY Times contains a front-page interview with "Juror #4."]

There are other issues relating to juror privacy: whether or not to permit public access to juror questionaires; and the question of judicial gag orders that prevent jurors from discussing deliberations after a trial.

Juror questionaires have been an issue in the Scott Peterson trial, where the judge ordered them sealed. See this brief report from the 3/23/04 San Francisco Chronicle.

Delucchi said releasing the answers, which detail everything from potential jurors' places of employment to the number of times they have been married, would "discourage jurors from wanting to participate in the case."

The judge said the answers, submitted in 23-page questionnaires given to prospective jurors earlier this month, would make it easy for anyone with to determine the identity of the jurors in the case.

Given the intense media scrutiny of the case, which Delucchi believes exceeds even that in the O.J. Simpson and Charles Manson murder trials, the judge said he could not "rely on media restraint" to ensure jurors' privacy.

Here is a link (via the National Center for State Courts) to a scholarly 29-page article titled: "Making the Case for Juror Privacy: A New Framework for Court Policies and Procedures" by Paula L. Hannaford.

With repect to "Judicial gag orders," this report from the 4/5/04 Pennsylvania Express-Times really should be read in full. Some quotes:

On March 4, the Hirko jury held the city and police Sgt. Joe Riedy liable for the 1997 SWAT raid that killed 21-year-old Hirko, a suspected drug dealer who grew up in Palmer Township. Gardner dismissed the jury March 22 after a $7.89 million settlement between Bethlehem and the plaintiffs became official. The plaintiffs were Hirko's parents, his fiancee and the owner of Hirko's rental home where the fatal raid took place.

After dismissing the jury, Gardner told a reporter he would not disclose the identities of the jurors. He also said the reporter could not review the jury's 28-page verdict document because it included the jurors' signatures.

"I am not giving the jurors' names or addresses to anyone," Gardner said March 28. "They are very protective of their privacy and concerned. It is hard enough to get jurors to serve. It's not a matter of public record."

Henning said "jury proceedings and jury lists should be open to the public, except in those extraordinary cases where there is actual or an imminent threat of juror harassment or intimidation." She said cases where juror information is closed usually involve organized crime.

"Our justice system was founded on the principle that courts and proceedings should be open to the public," Henning said. "Open courts promote public confidence in the system and help to ensure basic fairness to its participants. Under both constitutional and common law principles, all court records and proceedings are presumptively open to the public. They can be closed in limited circumstances, but only after notice, a hearing, and specific findings that closure is necessary to preserve some higher interest. The jury verdict sheet, which sets forth the most fundamental information on a trial and the jury's ultimate finding on liability, must be open to public inspection."

Finally, for now, one more item: a 4/2/04 article on jury service from the Washington Post titled "Culling a Shrunken Jury Pool: Some Go to Lengths to Avoid Service; Others Seek Limelight."

[More] Also of note is the motion filed last week by the Martha Stewart attorneys seeking a new trial. Some quotes from the NY Times report:

Lawyers for Martha Stewart sought a new trial yesterday, saying a juror failed to disclose that he had been arrested on an accusation of assault and provided other false information about his background. * * *

Documents filed along with the request contend that the juror, Chappell Hartridge, had been arrested and arraigned in 1997 after being accused of assault, and that he did not disclose that information. An affidavit from a woman named Gail Outlaw says that Mr. Hartridge assaulted her but that she dropped the charges "because his family put pressure on me to do so and because I could not afford to miss any more time at work to pursue the matter." The arrest record is sealed, as required under New York law. Ms. Stewart's lawyers are seeking to have it unsealed. * * *

All of the prospective jurors in the case were required to complete a confidential questionnaire as the first step in a screening process. They were then interviewed by prosecutors and defense lawyers. Reporters were barred from the interviews and not permitted to see any copies of the questionnaires, despite requests and motions filed with the court.

Posted by Marcia Oddi on Wednesday, April 07, 2004
Posted to Indiana Law

Law - Calif. Gov. Arnold Schwarzenegger suggests a part-time legislature

Perhaps speaking tongue-in-cheek:

WAILEA, Hawaii — Gov. Arnold Schwarzenegger said Tuesday that he would like to make the California Legislature part-time so lawmakers would not have as much freedom to create so many "strange bills."

The Legislature "already doesn't have enough to do," the governor said, adding that full-time status was proving an obstacle to productive, responsible work.

"I want to make the Legislature a part-time Legislature," the governor said. "Spending so much time in Sacramento, without anything to do, then out of that comes strange bills. I like them when they're scrambling and they really have to work hard. Give them a short period of time. Then good work gets done, rather than hanging. That's when they start getting creative with things."

Or perhaps not. The story is on the front-page of today's LA Times . More:
California's Legislature began working year-round in 1966. The state is one of four with full-time legislatures, according to a report by the National Conference of State Legislatures. Michigan, New York and Pennsylvania are the others. There are seven states where lawmakers put in roughly 80% of the time it takes to do a full-time job: Alaska, Illinois, Florida, Ohio, Massachusetts, New Jersey and Wisconsin.

Schwarzenegger used his movie background to illustrate the point. The best work got done in compressed time frames, he said. "Pre-production is three months," he said. "You don't have more than that…. Post-production is three months. And you have to be out next summer. Then people perform. 'Oh my God, now we have deadlines.' That's when people perform best. Same with legislators. You have a deadline…. Everyone works. Works like a jewel."

Posted by Marcia Oddi on Wednesday, April 07, 2004
Posted to Indiana Law

Economic Development - More about Cummins' leap from Indiana to India

Yesterday we reported on this story from Sunday's Chicago Tribune about globalization and Columbus, Indiana, headlined: "Global economy strains loyalty in company town: Cummins Inc. has long driven the economy of Columbus, Ind., but it says shifting work abroad, to India and China, is necessary to survive." Today we have more stories. First, a second Trib story, just as interesting as the first, published Monday, and titled "From Indiana to India: Why 1 firm leapt - Company found a pool of talent to help business--and overseas town--blossom." Some quotes:

A close look at Cummins' decision to locate its technical center in Pune (pronounced POON-uh) reveals outsourcing to India is not just about call centers and low-level jobs. It's about the crucial interrelationship building between India and places like Indiana.

The pitched debate about outsourcing being heard in the U.S. presidential campaign may focus on the idea that India is somehow stealing jobs with the complicity of greedy CEOs. But that misses the point. In a global economy, India and companies like Cummins need each other to thrive. That gives the trend strong momentum.

A little over a year ago, Cummins Chairman and CEO Tim Solso recognized what countless other CEOs are discovering: India is blossoming into a vital resource of world-class technical talent that companies ignore at their peril. On an eye-opening trip to Bangalore in southern India, Solso saw engineers drawing complex 3-D models of jet engines and analyzing ways to make combustion systems more efficient.

"They were very productive, very well-educated people doing sophisticated work in a high-quality way," Solso says. "It was a huge competitive epiphany."

What he concluded is that India is disrupting the world's economy much the way Japan did 30 years ago, when companies including Toyota dramatically improved the quality of car manufacturing. * * *

Cummins has manufactured engines in Pune for 42 years. But last year when Solso visited several other U.S. companies' Indian operations, including General Electric's John F. Welch Technology Centre in Bangalore, he said he was blown away by the depth and sophistication of what he saw.

As soon as he got off the plane in Columbus, where his $6.3 billion company is headquartered, Solso called a meeting of his top staff.

"I said, `I want every one of you to go to India and I want you to take your key people,'" Solso recalls. "`And specifically, I want you to look at sourcing software development, IT operations, business services and a tech center. And I want to get going right now.'"

From the Indian point of view, The Economic of India has a story today titled "Why Cummins finds India hot." A quote:
According to an online survey of American automotive executives conducted by AT Kearney, India is right on top of the auto outsourcing heap with 24 per cent of the respondents giving it the thumbs up.

This techno tech-off is seen by some as beginnings of new prosperity where Indians are vital partners of corporate America, to others, Indians are the shock troops decimating good-paying jobs of God-fearing Americans.

For companies like Cummins fighting global odds and chronic pressures to cut costs, India with her army of high-quality, low-cost engineers is ally number one. That India has at its command, a warehouse of world-class technical talent, can't be ignored any more.

And here is an opinion piece from the National Review that argues "Outsourcing Is the American Way: In spite of what pundits say, the U.S. wins when jobs go offshore," and concludes:
Take the former rust belt where the complaints about outsourcing are the loudest. Data shows that Ohio has imported 242,000 jobs, Indiana 163,000, and Michigan 244,000. Outsourcing isn’t a symptom of America’s decline. It is part of a process that prevents decline.
One wishes that equivalent information about exported jobs was also presented.

Posted by Marcia Oddi on Wednesday, April 07, 2004
Posted to Indiana economic development

Tuesday, April 06, 2004

Law - More on law school rankings

A Findlaw.com columnist has a piece today titled "U.S. News & World Report's 2005 Law School Rankings: Why They May Not Be Trustworthy, and How the Alternative Ranking Systems Compare." Access it here.

Posted by Marcia Oddi on Tuesday, April 06, 2004
Posted to Indiana Law

Indiana Law - Juror Secrecy in Indiana

An important editorial today in the Fort Wayne Journal Gazette starts by quoting Art. 1, Sec. 12 of the Indiana Constitution, the section that begins: "All courts shall be open ... " Some quotes (but the editorial really should be read in full):

New state court rules and local court practices designed to protect the privacy of people who serve on juries have improperly cast a veil over a key part of court operations that should be open, tainting the credibility of the criminal justice system.

The issue - whether the identity of jurors in Indiana trials should be a public record - is indeed difficult. * * *

But forever sealing the identity of jurors hides from the public a vital ingredient of the criminal justice system. * * *

The Indiana Supreme Court adopted rules that limit personal information about each juror to what is disclosed in open court - generally, their names only. However, because Allen County identifies jurors and prospective jurors by numbers, their names are not mentioned in open court - thereby keeping their identity a secret. * * *

In fact, judges' authority to unilaterally make this decision is troubling and raises questions about separation of powers. The General Assembly has long been the arbiter of what information is public and what is not, and this is a decision that should rest with the legislature. The state's constitution clearly calls for courts to be open, while it says nothing about juror privacy. * * *

The Supreme Court should reconsider its rule. Absent that step, the General Assembly should establish a means for the records to become public, preferably requiring the jurors' names be added to the case file after the conclusion of a trial.

When six or 12 people determine the fate of a criminal defendant or civil litigant, they have made a decision by and for the public. Their names should be a public record.

Posted by Marcia Oddi on Tuesday, April 06, 2004
Posted to Indiana Law

Environment - Bharat Mathur Named as Acting Regional Administrator for U.S. EPA Region 5

This today from USNewsWire.com:

CHICAGO, April 6 /U.S. Newswire/ -- U.S. Environmental Protection Agency Region 5 today named Bharat Mathur as acting regional administrator following the departure of Regional Administrator Thomas V. Skinner who was recently appointed acting assistant administrator for the EPA Office of Enforcement and Compliance Assurance. As acting regional administrator, Mathur leads the implementation of federal environmental programs in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin.

At the time of his appointment, Mathur was serving as deputy regional administrator. He joined EPA in January 2000 as director of the Air and Radiation Division after a lengthy career with the state of Illinois where he managed Illinois EPA offices dealing with air pollution, hazardous and solid waste, and Clean Water Act programs.

Posted by Marcia Oddi on Tuesday, April 06, 2004
Posted to Environmental Issues

Indiana Law - A number of Court of Appeals opinions posted today

Terry Huber v. State of Indiana (4/6/04 IndCtApp) [Criminal Law & Procedure]

Fort Wayne Lodge, LLC v. EBH Corporation (4/6/04 IndCtApp) [Contracts; Civil Procedure]

Mukesh I. Desai v. Sherry L. Croy (4/6/04 IndCtApp) [Civil Procedure]

B.J.B. v. State of Indiana (4/6/04 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

B.B. appeals the juvenile court’s order directing him to register as a sex offender with the local sheriff. We reverse. * * *

Before a juvenile who has been adjudicated delinquent for committing a sex offense may be ordered to publicly register as a sex offender, a court must find by clear and convincing evidence that the juvenile is likely to commit another sex offense. See Ind. Code § 5-2-12-4(b)(3). We have consistently construed this statute as requiring an evidentiary hearing before a juvenile may be ordered to register as a sex offender. * * *

We reverse the order requiring B.B. to register as a sex offender. Our decision today would not preclude the State from successfully requesting that B.B. be placed on the sex offender registry, provided it presents evidence at a hearing that establishes by clear and convincing evidence that B.B. is likely to commit another sex offense. Unless and until that happens, however, B.B.’s name must be removed from the sex offender registry.
KIRSCH, C.J., and FRIEDLANDER, J., concur

Patrick Fitzgerald v. State of Indiana (4/6/04 IndCtApp) [Criminal Law & Procedure]

William Roberts v. State of Indiana (4/6/04 IndCtApp) [Workers' Compensation; Asbestos]

Carl R. Denton, Jr. v. State of Indiana (4/6/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge

Today we hold that the fact that the vehicle the defendant was driving had what appeared to be a broken rear window did not, without more, afford police a reasonable suspicion that the vehicle was stolen so as to justify an investigatory stop. Appellant-defendant Carl R. Denton, Jr., appeals his conviction for Operating a Motor Vehicle After Having Been Adjudged a Habitual Traffic Violator, a class D felony. Specifically, Denton challenges the denial of his motion to suppress on the grounds that the arresting police officer improperly stopped his vehicle and further argues that the State failed to show that his driver’s license was validly suspended in accordance with Indiana Code section 9-30-10-5. Inasmuch as we conclude that the traffic stop was unlawful and therefore reverse the judgment of the trial court on that basis, we need not address Denton’s argument regarding the suspension of his driver’s license. * * *

Major Werden obviously observed the window in terms of crime, but of course a window can also be accidentally broken. This court is deferential to police officer training and experience, and we certainly recognize that a trained officer can properly act on a suspicion that would elude an untrained eye. However, in this case, Major Werden’s stated rationale for stopping this vehicle would support stopping any car at all with a broken window. In short, there does not appear, in the record before us, to have been an assessment based on training or experience that this particular broken window indicated that the vehicle was stolen.[ftnote]

In light of these circumstances, we must conclude that the stop was based upon nothing more than an unparticularized suspicion and, therefore, Major Werden lacked the reasonable suspicion or probable cause necessary to justify his actions in stopping the vehicle. Therefore, the motion to suppress should have been granted, and the judgment of the trial court is reversed.[ftnote]
NAJAM, J. and RILEY, J., concur.

[ftnote] While a split of authority exists with respect to this issue, we reject the view advanced by several other jurisdictions recognizing that a broken automobile window alone is sufficient to provide a reasonable suspicion for the stop. [cites omitted]

[ftnote] Although we need not address Denton’s sufficiency of the evidence argument in light of our reversal on this issue, it is interesting to note that our supreme court has declared that an incomplete or untimely suspension notice sent by the BMV or the failure to outline the opportunity for judicial review in an initial HTV suspension notice will not warrant an automatic reversal of a suspension. See Groce v. State, 778 N.E.2d 785, 786-87 (Ind. 2002); State v. Hammond, 761 N.E.2d 812, 815 (Ind. 2002); Stewart v. State, 721 N.E.2d 876, 879-80 (Ind. 1999). In light of these cases, the State need only show that the defendant had been driving and that he knew he was an HTV, thereby nullifying the notice requirements set forth in Indiana Code section 9-30-10-5. * * *

Posted by Marcia Oddi on Tuesday, April 06, 2004
Posted to Indiana Decisions

Economic Development - Motley Fool reports on iron nugget technology

In a story datedlined 4/5/04 headlined "Steel Dynamics' Latest Thing," the Motley Fool report begins with this lead:

Even as surging steel prices continue to create ripples throughout the U.S. economy, Steel Dynamics (Nasdaq: STLD) is working on a potentially promising technology that could inject new raw material into the marketplace.
[More] Don't miss this story from Sunday's Chicago Tribune about globalization and Columbus, Indiana, headlined: "Global economy strains loyalty in company town: Cummins Inc. has long driven the economy of Columbus, Ind., but it says shifting work abroad, to India and China, is necessary to survive." A quote from this lengthly feature:
In Columbus, a tightly knit community of about 39,000, the story of globalization is not a tale of "Benedict Arnold CEOs" or macroeconomic theory. It's the story of how an intimate relationship between company and town can clash with the relentless march of technology in a world with shrinking borders.

Columbus has adjusted to the new reality and remains a healthy, prosperous town. But the paternalism that once sustained it is no match for the incessant demands for cost-cutting at Cummins. Markets like China and India present rich new opportunities. To ignore them likely would put the company, and all its jobs, at risk.

[Link via Indiana Daily Insight.]

Posted by Marcia Oddi on Tuesday, April 06, 2004
Posted to Indiana economic development

Monday, April 05, 2004

Law - U.S. Supreme Court denies 3 wetlands appeals

The United States Supreme Court denied certiorari today in three wetlands cases: NewDunn Associates v. United States Corps of Engineers, 03-637; Deaton v. United States, 03-701; and Rapanos v. United States, 03-929. According to a brief AP story, Deaton "involved a [Maryland] couple who dug a ditch on their property in Wicomico County without getting government permission first." Rapanos involved a Michigan man by that name who "was convicted of violating the Clean Water Act for filling his wetlands in Williams Township with sand to make the land ready for development." NewDunn involved "companies trying to develop wetlands in Newport News, Virginia."

There should be a lot more information available tomorrow -- these cases have garnered much publicity over the years. Meanwhile, here is the opinion of the 4th Circuit in NewDunn, which begins:

During the summer of 2001, without obtaining a permit from the Army Corps of Engineers (the "Corps") or the Virginia State Water Control Board (the "Board"), Newdunn Associates, Orion Associates, and Northwest Contractors (collectively "Newdunn") began ditching and draining wetlands on a forty-three-acre property near Newport News, Virginia (the "Newdunn Property"). Pursuant to its authority under the Clean Water Act ("CWA" or the "Act"), the Corps brought a civil enforcement action in federal district court. The Board initiated its own enforcement action in state court, premised on the Virginia Nontidal Wetlands Resources Act of 2000 (the "Virginia Act"). Newdunn removed the state action to federal court, and the two cases were consolidated. After a five-day bench trial, the district court ruled for Newdunn in both cases, finding that the Corps lacked jurisdiction over wetlands on the Newdunn Property under the Clean Water Act, and that the jurisdictional reach of Virginia law was merely coextensive with federal law. For the reasons stated below, we reverse.
There were two Deaton 4th Circuit opinions. In Deaton I (4/7/2000) the Court stated:
The United States sued James and Rebecca Deaton, alleging that they violated ss. 301 and 404 of the Clean Water Act, 33 U.S.C. ss. 1311, 1344, by sidecasting dredged material as they dug a drainage ditch through a wetland. The district court ultimately awarded summary judgment to the Deatons, and the government appeals. We reverse, holding that sidecasting in a jurisdictional wetland is the discharge of a pollutant under the Clean Water Act. We dismiss the Deatons' cross-appeal for lack of appellate jurisdiction.
In Deaton II (6/12/03):
This is the second appeal by James and Rebecca Deaton, who were sued by the government under the Clean Water Act (sometimes, "the CWA" or "the Act"), 33 U.S.C. § 1251 et seq., for failing to obtain a permit from the U.S. Army Corps of Engineers (the Corps) before digging a ditch and depositing excavated dirt in wetlands on their property. The Corps asserts jurisdiction because the Deatons’ wetlands are adjacent to, and drain into, a roadside ditch whose waters eventually flow into the navigable Wicomico River and Chesapeake Bay. The Deatons’ main argument is that the Corps has no authority over the roadside ditch, and thus the agency cannot regulate their wetlands. First, we hold that Congress’s power under the Commerce Clause to protect navigable waters allows it to regulate the discharge
of pollutants that flow into the ditch. Congress delegated part of this authority to the Corps in the Clean Water Act. The Corps, in turn, has promulgated a regulation, 33 C.F.R. § 328.3(a)(5), that extends CWA jurisdiction to tributaries of navigable waters. This regulation represents a reasonable interpretation of the CWA that is entitled to deference. The Corps interprets its regulation to cover the roadside ditch, and we also defer to that interpretation. Second, we hold that the district court did not err when it decided that the Corps used an appropriate indicator for wetland hydrology (prescribed by its Wetlands Delineation Manual) in designating parts of the Deatons’ property as wetlands. Finally, we affirm the district court’s remediation order, which requires the Deatons to fill in the ditch and restore their wetlands to their pre-violation condition.
Rapanos v. United States (8/5/2003) is a 6th Circuit opinion:
This case arises from the criminal conviction of John Rapanos for unlawfully filling wetlands in Michigan in violation of the Clean Water Act, 33 U.S.C. § 1311(a). After the conviction, an appeal, a denial of certiorari, a second appeal, and a grant of certiorari, the Supreme Court remanded the case back to us to review in light of Solid Waste Agency of North Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). We remanded the case to the district court. The district court found that, in light of Solid Waste, Rapanos’s land was outside the jurisdiction of the Clean Water Act and the charges were dismissed. The United States now appeals this decision. For the reasons below, we REVERSE the judgment of the district court and REINSTATE the convictions.
[Update 4/6/04] Linda Greenhouse reports this morning in the NY Times, at the end of her Supreme Court Roundup:
Wetlands Regulation. Without comment, the court turned down three cases challenging federal regulatory power over wetlands that are not directly connected to navigable waterways. Landowners, supported by the building industry, contested the government's interpretation of the Clean Water Act in light of a 2001 Supreme Court decision that rejected federal jurisdiction over isolated ponds visited by migratory birds.

According to the Environmental Protection Agency and the Army Corps of Engineers, that decision was a narrow one that did not remove federal jurisdiction over wetlands that are part of the drainage area or tributary systems of navigable waterways. The plaintiffs and their allies pressed for a broader interpretation of the 2001 ruling.

One, John A. Rapanos, a Michigan landowner who acted without a permit to fill wetlands that were 20 miles from a navigable river, was criminally convicted and now faces a 10-month prison sentence.

This story from the Hampton Roads Virginia Daily Press, headlined "Refusal by justices thwarts developer: The Supreme Court rejected a local case over 'isolated' wetlands, killing a development near Jefferson Avenue," includes these quotes:
NEWPORT NEWS - The Supreme Court will not use a strip of land in Newport News to set a nationwide precedent and clear up confusion over government regulation of isolated wetlands, according to a decision released Monday. Locally, that means a group of landowners called Newdunn Associates will not be able to develop 43 acres of land between Interstate 64 and Jefferson Avenue in upper Newport News.

Nationally, developers, environmentalists and regulators were interested in the outcome of Newdunn Associates v. The U.S. Army Corps of Engineers. As is its custom, the Supreme Court offered no explanation Monday when it disclosed it would not hear Newdunn and two similar wetland cases in Maryland and Michigan. Conservationists and regulators are happy. Developers feel crushed.

Posted by Marcia Oddi on Monday, April 05, 2004
Posted to Environmental Issues | General Law Related

Indiana Decisions - Interesting observation in a West Virginia Blog

Brian Peterson's Legal Weblog, "A collection of legal news and commentary with a focus on West Virginia law," today includes an interesting observation on the West Virginia Supreme Court that alludes to the Indiana Supreme Court's decisions in Matter of Wilkins. Near the end of his entry, Kennedy states:

I recall a story from about a year ago in which an attorney was suspended in Indiana for suggesting in a footnote that a particular court opinion was "results-oriented." (The suspension was later reduced to a reprimand). If you read Justice Starcher's concurrence the way I do, our Court is unapologetically results-oriented. Many folks have been suggesting this for years, but I have never seen such an open endorsement of results orientation in an opinion. It just goes to show you that a judicial philosophy that is an anathema to one court is a badge of honor for another.
Here is an earlier Indiana Law Blog entry on Wilkins; here is a link to the initial Supreme Court October 29, 2002 ruling, the January 3, 2003 motion for recusal and the Feb. 4, 2003 rehearing.

Posted by Marcia Oddi on Monday, April 05, 2004
Posted to Indiana Decisions

Indiana Decisions - Two Tax Court rulings posted today

Linvilles' Olds-Cadillac, Inc. v. Indiana Department of State Revenue (4/2/04 IndTaxCt) [Sales Tax; Not for Publication]
Fisher, J.

"[T]he Court finds the following issue dispositive: whether, in lease transactions with its customers, LOC was required to collect sales tax on the values attributable to vehicle trade-in credits."

Simon Aviation, Inc. v. Indiana Department of State Revenue (4/2/04 IndTaxCt) [Use Tax]
Fisher, J.

Simon Aviation, Inc. (Simon) appeals the Indiana Department of State Revenue’s (Department) imposition of Indiana use tax on aircraft lease payments it made during the years ending December 31, 1993, December 31, 1994, and April 30, 1995 (the years at issue). The matter is currently before the Court on the parties’ cross-motions for summary judgment. The issue for the Court to decide is whether those lease payments are subject to Indiana’s use tax. * * *

Because Indiana’s use tax results in a greater tax burden on aircraft purchased out-of-state than aircraft purchased in-state, the Court holds that it impermissibly discriminates against interstate commerce. Consequently, the Court GRANTS summary judgment in favor of Simon and against the Department.

CONCLUSION. For the above stated reasons, the Court GRANTS summary judgment in favor of Simon and against the Department. The Court REMANDS the case to the Department and ORDERS it to refund to Simon the appropriate amount of use tax to which it is entitled.

Posted by Marcia Oddi on Monday, April 05, 2004
Posted to Indiana Decisions

Indiana Law - Apologies to Valparaiso re law school ranking misread!

Friday the Indiana Law Blog reported on Indiana Law School rankings and noted:

Indiana's fourth law school, Valparaiso, which was ranked in Tier 3 last year, is now ranked near the bottom of Tier 4.
An alert reader, Margaret S. Foster of GREEN & KUCHEL, P.C. in Hammond, has just sent me a note to say [my emphasis]:
Not sure if you looked at something different than I did, but I don’t think that the Tier 4 schools were ranked within the tier. So, Valpo did drop into Tier 4 from Tier 3, but its location at the bottom of the list is because of where it falls in the alphabet.
Of course! So obvious now that it has been pointed out to me! And I do remember thinking at the time that Valpo did outrank Whittier, where Richard Nixon did his undergrad work and warmed the bench of the football team, but decided to pass on that. Of course, now I realize that "V" comes before "W."

Posted by Marcia Oddi on Monday, April 05, 2004
Posted to Indiana Law

Indiana Decisions - Here, finally, is the awaited tongue stud decision!

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

Here is the tongue stud/breathalyser decision, as reported on here most recently on Saturday. Judge Najam wrote the opinion for the panel, Judge Sullivan wrote a concurring opinion, and Judge Staton wrote the dissent.

Posted by Marcia Oddi on Monday, April 05, 2004
Posted to Indiana Decisions

Sunday, April 04, 2004

Environment - Indiana cities sue over MTBE, a gas additive

This lengthy story in today's Louisville Courier-Journal reports:

Five local governments in Indiana are among dozens of communities across the country suing the gasoline industry over pollution believed to be caused by the additive commonly known as MTBE.

In all, at least 62 localities from California to Connecticut have filed suits since late September in an effort coordinated by the Dallas, Texas, law firm of Baron & Budd. The flurry of filings came as Congress debated a measure that would grant the gasoline industry protection from such litigation.

The filings include suits by the town of Campbellsburg, Ind.; the cities of Mishawaka, Rockport and South Bend; and the North Newton School Corp., in Newton County.

This opinion piece in last Sunday's Indianapolis Star also deals with MTBE.

Posted by Marcia Oddi on Sunday, April 04, 2004
Posted to Environmental Issues

Law - Altering of Worker Time Cards Spurs Growing Number of Suits

"Altering of Worker Time Cards Spurs Growing Number of Suits" is the headline to a front-page story in the Sunday NY Times that I found shocking. It details how managers alter worker' time records at a number of chain stores across the country. According to the story, managers do it because they are pressured to save money and increase the bottom-line, or to allow off-the-clock work. Some quotes:

Rosann Wilks, who was an assistant manager at a Pep Boys in Nashville, said she was fired in 2001 after refusing to delete time. She said her district manager told her, "Under no circumstances at all is overtime allowed, and if so, then you need to shave time." At first, she bowed to orders and erased hours. Some employees began asking questions, she said, but they refused to confront management. "They took it lying down," she said. "They didn't want to lose their job. Jobs are hard to find." When she started feeling guilty and confronted her district manager, she said, "It all came to a boil. He fired me."

Bill Furtkevic, Pep Boys' spokesman, said his company did not tolerate deleting time.

The practices at a large number of companies are detailed. These quote particularly caught my eye:
In the punch-card era, managers would have had to conspire with payroll clerks or accountants to manipulate records. But now it is far easier for individual managers to accomplish this secretly with computers, payroll experts say.

Mr. Pooters, a father of five who left the Air Force in 1997 for a career in retailing, talks with disgust about photocopied Toys "R" Us records that he said showed how his manager made it appear that he had clocked out much earlier than he had.

"Unless you keep track of your time and keep records of when you punch in and punch out, there's no way to stop this," he said. * * *

Employees at Wal-Mart and other companies complain that they receive no paper time records, making it hard to challenge management when their paychecks are inexplicably low.

Ms. Danner, the former Family Dollar manager, praised the system at the McDonald's restaurant she managed for seven years. At day's end, she said, employees received a printout detailing total hours worked and when they clocked in and out.

"We never had any problems like this at McDonald's," she said.

This brings up interesting parallels to the computer-voting issues we've written about elsewhere.

Posted by Marcia Oddi on Sunday, April 04, 2004
Posted to General Law Related

Economic Development - Latest news on location of iron nugget plant

According to this story today in the Chicago Tribune, "Nugget of hope slipping away: Hard-pressed Silver Bay, Minn., has been home to a pilot project for processing iron ore, but the first large-scale plant appears headed to Indiana." Some quotes:

SILVER BAY, Minn. -- Ever since the Mesabi Nugget pilot plant first rumbled into production here last summer, people in this isolated Lake Superior town have been keeping their fingers crossed.

If the $30 million test facility's revolutionary iron-ore processing system worked out, they figured, the next step would be a commercial-scale plant--and perhaps a couple hundred new jobs for the chronically job-hungry region.

The test is now in its final months, and it's clear that the environmentally friendly, energy-efficient new technology is a home run. * * *

There's only one problem: It looks as if the first full-scale plant using the technology will be built in Indiana rather than here.

For Silver Bay, you might say, the new technology works too well.

Steel prices are soaring around the globe, and the Indiana steelmaker that's been a key backer of the pilot plant has decided it wants a full-scale plant fast. Unfortunately, the need for speed takes Silver Bay out of contention.

Because of strict regional clean-water rules, building a plant on the shore of Lake Superior involves a daunting permit process that can take two or three years. But Steel Dynamics Inc., based in Ft. Wayne, Ind., doesn't want to wait that long, especially since it figures that a permit to build in Indiana can clear its state regulators in about six months.

Read the article for much background. And a side-bar explains the nugget-making process.

Meanwhile, a story from the Two Harbor Minnesota News-Chronicle, dated April 1, 2004, reports: "Plans for Silver Bay nugget plant moving ahead: Draft EIS ready soon."

Posted by Marcia Oddi on Sunday, April 04, 2004
Posted to Indiana economic development

Environment - NYT Magazine has major Clean Air Act article today

A "don't miss" (no matter what your position) article today in the Sunday NY Times Magazine on the Bush administration and the Clean Air Act, titled "Changing all the Rules." The magazine cover features a smokestack with the caption "Up in Smoke: The Bush administration, the big power companies and the undoing of 30 years of clean-air policy." Here is the description of the article published in the apparently not-available-on-line table of contents page from the Magazine:

In this week's issue, a cover article on the quietly revolutionary approach that the Bush administration has taken to clean-air policy. As Bruce Barcott demonstrates, the White House has not only allowed the power industry to weigh in on clean-air policy but has also achieved its goals through obscure regulatory changes and bureaucratic directives, not in the legislative arena. Barcott traced the story through boxes of memos and e-mail messages from little-known but powerful administrators, many of whom came directly to the government from jobs in the industries they are now regulating. ***
[Update 4/5/04] Two stories on the regulation of mercury emissions from coal-fired power plants: from the 4/2/04 NY Times, this story headlined "Senators Fault Mercury Pollution Proposal;" from the LA Times of the same date, a story titled "EPA Chief Goes to Bat for Bush Policy."

Posted by Marcia Oddi on Sunday, April 04, 2004
Posted to Environmental Issues

Saturday, April 03, 2004

Environment/Economic Development - More on coal

Our entry titled "Environment/Economic Development - Alternatives to oil or gas-fired power plants," posted here March 30 mentioned a Wall Street Journal front-page story, the gist of which was that coal is making an unexpected comeback. The headline: "After Long Taking Its Lumps, Coal Is Suddenly Hot Again: Utilities Shun Natural Gas As They Plan New Plants; Pollution Remains an Issue." It turns out that story was reprinted in the Norfolk Virginian-Pilot and may be accessed here. [Thanks to the SW Virginia law blog]

[Update 4/5/04] Two more coal articles: "Good times for coal barons, bad times for mountains," an editorial today from the Louisville Courier-Journal; and "Ex-official says U.S. government covered up spill cause," available here from ENN. A quote: "A whistle-blower has accused the Bush administration of trying to protect the company responsible for a 2000 coal slurry spill for political reasons, according to CBS Television's 60 Minutes."

Posted by Marcia Oddi on Saturday, April 03, 2004
Posted to Environmental Issues | Indiana economic development

Law - Justices differ on references to foreign law; as do press reports

"Foreign Rulings Not Relevant to High Court, Scalia Says," is the headline to a story this morning by Anne Gearan in the Washington Post. Speaking to the American Society of International Law, according to the story:

Justice Antonin Scalia said yesterday his colleagues on the Supreme Court will probably go on referring to foreign court decisions in their rulings on U.S. law but that does not make it right. * * * "It is my view that modern foreign legal material can never be relevant to any interpretation of, that is to say, to the meaning of the U.S. Constitution," Scalia told the group.

Scalia said the modern court's reliance on legal rulings overseas traces at least as far back as 1958 and has been applied inconsistently. The only consistent way to interpret U.S. law is to stick to the original meaning of the Constitution, Scalia said. "We have no authority to look around and say, 'Wow, things have changed,' " he said.

Interestingly, an AP story by Gina Holland in the Feb. 28, 2004 Detroit News, titled "Scalia finds little to like in Supreme Court term," contains in a sidebar this quote from a Scalia dissent in Olympic Airways v. Husain (2/24/04):
Today's decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us. This sudden insularity is striking ... the court's new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today's holding. Because the court offers no convincing explanation why these cases should be followed, I respectfully dissent.
Justice Scalia was joined in that dissent by Justice Sandra Day O'Connor. This 2003 article from WorldNetDaily quotes Justice O'Connor as saying "American courts need to pay more attention to international legal decisions." More:
In 2002, she said, the high court regarded world opinion when it ruled executing the mentally retarded to be unconstitutional. American diplomats, O'Connor added, filed a court brief in that case about the difficulties their foreign missions faced because of U.S. death penalty practices. More recently, the Supreme Court relied partly on European Court decisions in its decision to overturn the Texas anti-sodomy law. "I suspect," O'Connor said, according to the Atlanta daily, "that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues."
In contrast, an article last July in USA Today by Joan Biskupic begins:
The Supreme Court's reference to foreign law in a ruling last month that overturned state anti-sodomy statutes stood out as if it were in bold print and capital letters.

Writing for the majority in a landmark decision supporting gay civil rights, Justice Anthony Kennedy noted that the European Court of Human Rights and other foreign courts have affirmed the "rights of homosexual adults to engage in intimate, consensual conduct."

Never before had the Supreme Court's majority cited a foreign legal precedent in such a big case. Kennedy's opinion in Lawrence vs. Texas, which was signed by four other justices, has ignited a debate among analysts over whether it was a signal that the justices will adopt foreign courts' views of individual liberties.

Posted by Marcia Oddi on Saturday, April 03, 2004
Posted to General Law Related

Indiana Decisions - More on Tongue Stud/Breathalyzer Ruling

As reported here yesterday (scroll down three entries), the Court of Appeals ruled yesterday (4/2/04) that:

[A] breath test given to a woman wearing a stainless steel stud in her pierced tongue is inadmissible in court because the stud is a "foreign" object. * * * Law enforcement officials said they might have to revisit the way they conduct breath tests. Currently, most law enforcement agencies do not require officers to make suspected drunken drivers remove tongue studs before administering breath tests.
The above quote is from this story in this morning's Indianapolis Star. I have not seen the case myself, as it has not been posted online. In fact, no Indiana Supreme or Appellate Court decisions have been posted online yet this month. The latest decisions currently available are from last Wednesday.

Posted by Marcia Oddi on Saturday, April 03, 2004
Posted to Indiana Decisions

Friday, April 02, 2004

Indiana Law - Indiana Law School Rankings

US News' rankings of law schools is also out today. Access it here. IU Bloomington is #40, down from #38 last year. IU-Indianapolis is in a 4-way tie for 63rd (out of 100), along with Chicago-Kent, U of Kansas, and U of Missouri-Columbia. Last year it was in a 5-way tie for 64th place, with Florida State (now 67), Temple (now 59), Kansas, and Nebraska (now 89!).

Notre Dame is in a 3-way tie for 20th, with George Washington U. and Washington U. (last year ND was 22nd).

Indiana's fourth law school, Valparaiso, which was ranked in Tier 3 last year, is now ranked near the bottom of Tier 4.

US News' methodology is here. A new feature this year, the Law School Diversity Index, is here.

Posted by Marcia Oddi on Friday, April 02, 2004
Posted to Indiana Law

Environment - IU SPEA program ranked high

US News and World Report "ranked the Indiana University School of Public and Environmental Affairs [SPEA] number three among the nation's public-affairs graduate programs, behind only Syracuse and Harvard," according to a WISHTV8 report. This report on the Indianapolis Star site gives the run-down on all the Indiana schools' rankings: "Graduate programs offered at Indiana University, Bloomington, IUPUI, Purdue University and the University of Notre Dame are among the top 50 in the country, according to a U.S. News & World Report survey being released today." Access the story from US News here.

[Immediate Update] Actually, the Star and Channel 8 have it wrong. IU Bloomington's SPEA is ranked first, as shown by a look (here) at the US New report.

[Maybe, Maybe Not] Ed Feigenbaum has written to tell me: "Marcia, SPEA is third -- they are just first in the special category: Public Affairs Specialties: Environmental Policy & Management." And the Durham North Carolina Herald-Sun has this story, dateline Chapel Hill. A quote: "Meanwhile, Duke's environmental policy and management program ranked 2nd nationally, behind Indiana University, and its public policy analysis program came in at No. 5 in the nation."

Posted by Marcia Oddi on Friday, April 02, 2004
Posted to Environmental Issues

Indiana Decisions - Yet another breathalyzer decision

Following on the heels of our Indiana Law Blog report earlier this week (March 30th, access it here or scroll down) on whether or not chewing tobacco renders breathalyzer results inadmissible is a Court of Appeals ruling (unfortunately not yet available on line) being reported by the AP, that a tongue stud "renders breath test inadmissible." Some quotes:

The 2-1 decision said the tongue stud was a "foreign substance" that should have been removed at least 20 minutes before the Breathalyzer test was conducted.

Under state guidelines for the alcohol tests, people must not have had anything to eat or drink, put any foreign substance in their mouth or respiratory tract, and must not smoke within 20 minutes before the breath sample being taken. * * *

Judge Robert Staton dissented, saying the statutory definition of "foreign substance" could not reasonably include every possible item in someone's mouth. "The metal object in Guy's mouth, a stainless steel tongue stud, was part of her persona," Staton wrote.

Posted by Marcia Oddi on Friday, April 02, 2004
Posted to Indiana Decisions

Indiana Decisions - Among Today's 7th Circuit Rulings

Among today's 7th Circuit rulings are:

CARROLL, RONNIE W. v. IL DEPT CORRECTIONS (SD Ill) where, in reversing the district court's prisoner appeal decision, Judge Posner rules:

The argument if accepted would do wonders for our workload, but is beyond nonsensical and unworthy of the office of the Attorney General of Illinois. As is the statement in its brief that Carroll presented no evidence of his version of the facts, when actually he submitted an affidavit and the state did not. These are unprofessional lapses. The state is ordered to show cause within 14 days why it should not be sanctioned for the frivolous argumentation in its brief.
HARRIS, WILLIE v. COTTON, ZETTIE R. (ND Ind., Judge Sharp) reversed on ineffective assistance of counsel issue.

PEACEABLE PLANET INC v. TY, INCORPORATED (ND Ill, ED) is a "Beanie Baby" opinion by Judge Posner involving "reverse passing off".

Posted by Marcia Oddi on Friday, April 02, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending April 2, 2004

Here is the Indiana Supreme Court's transfer list for the week ending April 2, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, April 02, 2004
Posted to Indiana Transfer Lists

Not law but interesting - No great basketball novels?

Check out this story today in the Chicago Tribune titled "Net loss: Where is the Hemingway of hoops?"Some quotes:

Two years ago, Sports Illustrated published a list of what its editors dubbed "Top 100 Sports Books of All Time." Of the hundred, only 17 were fiction; and of those 17 novels, none was about basketball. (The breakdown among fictional subjects: football, six; baseball, five; boxing, three; soccer, fishing and golf, one each.) "I can't think of a single great basketball novel," declared John Rossi, history professor at LaSalle University, who has taught the history of sports for more than four decades.
High school football was the topic of the classic non-fiction "Friday Night Lights," by H. G. Bissinger, published in 1990. Now it is being made into a movie. See this NY Times report from March 30 that begins:
ODESSA, Tex. — When "Friday Night Lights" was published in 1990, many people in this scruffy West Texas oil town were so outraged by its portrayal of their outsized enthusiasm for high school football — like chartered jets to fly the team to games while the English teacher scrounged for books — that, on the advice of his publisher, the author opted out of a local book-signing.

Posted by Marcia Oddi on Friday, April 02, 2004
Posted to General News

Law - Lawyer taken in by client

"Lawyer taken in by client: 75-year-old woman accused of scamming car dealerships gave lawyer a bad check," is the headline of this AP story today. Some quotes:

The lawyer for a 75-year-old woman accused of writing bad checks for new cars across the Chicago area says she scammed him, too. * * * Gooch, of Algonquin, is accused of using her age and apparent frailty to take advantage of about a dozen car dealers in McHenry, Cook and Lake Counties in the past four years. Authorities said she wrote bad checks for several new vehicles, including a sport-utility vehicle and a motorcycle. * * * Gooch pleaded guilty to a misdemeanor theft charge in October 2003 for using a bad check to buy a Harley-Davidson motorcycle. She was sentenced to a year of court supervision and paid a $385 fine. Six months later, a McHenry County grand jury indicted Gooch on a charge of deceptive practice for allegedly writing a bad check for $22,000 for a sport-utility vehicle. Bail was set at $10,000 but reduced to personal recognizance after Gooch showed up in court with an oxygen tank and cane, her attorney said.
This from the Chicago Sun-Times.

Posted by Marcia Oddi on Friday, April 02, 2004
Posted to General Law Related

Thursday, April 01, 2004

Indiana Decisions - Still waiting

Still waiting for today's Indiana Supreme and/or Court of Appeals opinions to be posted . . .

Posted by Marcia Oddi on Thursday, April 01, 2004
Posted to Indiana Decisions

Indiana Decisions - Today's 7th Circuit Rulings

In FLOYD, MICHAEL v. HANKS, CRAIG (SD Ind, Judge Sarah Evan Barker), where Floyd was sentenced to 110 years and appealed "on the basis of ineffective assistance of counsel and a violation of his due process rights," the panel, headed by Judge Bauer, affirms. HYMAN, CHERYL L. v. TATE, DICK is a Fair Debt Collection Practices Act case from the ND Ill, ED; the panel (Manion, CJ) rules: "Following a bench trial, the district court found that even if the defendants had violated the terms of the FDCPA, they were protected from liability by the bona fide error defense. Hyman appeals. We affirm." In a decision written by Judge Posner, THOMSON, BRIAN v. WASHINGTON, ODIE, the panel reverses and remands the lower court ruling (SD Ill.) dismissing the Illinois state prisoner's pro se civil rights suit on the grounds that it failed to state a claim, concluding:

The complaint in this case, though artless (the plaintiff is not a lawyer and did not have the assistance of one in drafting the complaint), provides adequate notice of legal claims that, if factually supported, would entitle him to relief under 42 U.S.C. § 1983. It was therefore error to dismiss the complaint.

Posted by Marcia Oddi on Thursday, April 01, 2004
Posted to Indiana Decisions

Environment/Economic Development - Alternatives to oil or gas-fired power plants

The Chicago Tribune today has this story titled "Nuclear power's future examined: Energy firms study new plants." The lead:

A consortium of energy companies, including Chicago-based Exelon Corp., is laying the groundwork for building the nation's first nuclear power plant since the Three Mile Island accident erased public interest in atomic energy 25 years ago. Company officials noted that there is no commitment to build any plants, estimated to cost billions of dollars. But they said they want to be prepared for what they believe will be the almost inevitable need for new nuclear power to maintain the nation's energy supply. Increasing demand for low-cost electricity and the desire to reduce reliance on imported fuels may improve prospects for new nuclear plants. Those forces already have led to proposals for 105 new coal plants, including 10 in Illinois, as well as wind energy and solar power projects.
The NY Times has a similar story: "Hopes of Building Nation's First New Nuclear Plant in Decades," that begins:
In an effort to revive the nuclear reactor construction industry, seven major companies plan to announce on Wednesday that they will apply for a license to build a new commercial power plant. The last time a plant was ordered but not later canceled was 1973. The companies, including the two largest nuclear plant owners in the United States and two reactor manufacturers, have not specified what they would build or where. In fact, they have not made a committment to build at all. But they have agreed to spend tens of millions of dollars to get permission to build, and they anticipate tens of millions from the federal government, which requested such proposals in November. The money would go to finish design work useful for a new generation of reactors and to develop a firm estimate of what such plants would cost.
Meanwhile, the Wall Street Journal (paid subscription rquired) has a very interesting front-page story, the gist of which is that coal is making an unexpected comeback. The headline: "After Long Taking Its Lumps, Coal Is Suddenly Hot Again: Utilities Shun Natural Gas As They Plan New Plants; Pollution Remains an Issue."

Posted by Marcia Oddi on Thursday, April 01, 2004
Posted to Environmental Issues | Indiana economic development