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Monday, May 31, 2004

Law - Class action lawsuit bill subject of local editorial

The proposed federal Class Action Fairness Act of 2004 (S. 2062) is the subject of this editorial today in the Fort Wayne Journal Gazette. A quote from the editorial:

The bill would nullify sunshine laws in 20 states, including Indiana, that ban secrecy in class-action lawsuits. The laws generally guarantee public access to legal settlements and court records, except those disclosing corporate trade secrets. Citizens would lose their right to learn of dangerous products, environmental hazards and other corporate misbehavior under a provision in the bill that would transfer most class action lawsuits from state to federal courts, where state sunshine laws dont apply. Future class action lawsuits brought by pension funds, individual retirement account holders and retirees against companies accused of securities fraud think Enron and WorldCom would be closed to the public at the request of senior corporate management.
For some background on the bill, see this 5/27/04 Reuters story. Some quotes:
The legislation would transfer most large class action lawsuits from state courts to federal courts, where experts say their chances of success are diminished. * * *

Republicans seeking curbs on what they call runaway litigation against business want to start debating the class action measure on June 1, when Senate Majority Leader Bill Frist has scheduled a vote on a motion to bring up the bill.

Corporate interests have sought the legislation for years. Supporters think it has never come closer to passage than now, after a compromise in November won over three Democrats and put the overall number of backers at 62 in the 100-seat Senate.

Posted by Marcia Oddi on Monday, May 31, 2004
Posted to General Law Related

Indiana Law - Feature story on new Floyd County judge

This story today in the Louisville Courier-Journal features Susan Orth, who will take over as judge in Indiana's Floyd Superior Court. Some quotes:

Tomorrow morning will mark the first time that the full-time judge of Floyd Superior Court has been someone other than Richard Striegel, who retires today after holding the position since it was created in 1979.

The new judge is former longtime Floyd County Deputy Prosecutor Susan Orth. More than 15 years of prosecuting cases makes her no stranger to the second-floor courtroom in the City County Building in New Albany, Ind.

Posted by Marcia Oddi on Monday, May 31, 2004
Posted to Indiana Decisions

Law - Can you name that case?

My New York Times this morning included a pull-out advertising section featuring a reproduction of the front page of the Tuesday, June 6, 1944 issue of the NY Times. The main headline: "Allied Armies Land in France ... Great Invasion is Under Way."

The Times had 8 columns then, rather than the 5 columns of today, so there was space for the beginnings of a lot of stories. Most, of course, were related to the war. However, there was this story, headlined, somewhat confusingly, "Federal Law Held Ruling Insurance," but the subhead is clearer: "Supreme Court, 4-3, Decides Business is Interstate and Subject to Trust Act." Here is the report on the front-page:

Washington, June 5 -- The Supreme Court, by a four-to-three decision today, held that the insurance companies of the county, with assets of $37,000,000,000,and annual premium collections in excess of $6,000,000,000, are in interstate commerce and thus subject to the Sherman Ani-Trust Law.

The decision upset precedents which began with a contrary decision by the court more than seventy-five years ago and have been reaffirmed repeatedly since the adoption of the anti-trust law in 1890.

The majority decision, written [Continued on Page 18]

Of course, we don't have page 18. So what is the name of the case? I located it, but it took a few minutes. So as not to spoil the fun, I won't disclose it here, but will instead provide this link to the answer.

Posted by Marcia Oddi on Monday, May 31, 2004
Posted to General Law Related

Sunday, May 30, 2004

Law - Low-Cost Paralegal Company Based on H&R Block Model

"Challenges Beset Low-Cost Paralegal Aid" is the headline to this fairly lengthy story today in the Washington Post. Some quotes:

You can't miss the red, white and blue at the We the People office in Glen Burnie -- the flags, the star wallpaper, even a large Liberty Bell rug. "It's nothing you'll find on Madison Avenue," said Deborah Ramsey, owner of the Glen Burnie franchise.

That's precisely the point. The decor is part of the paralegal company's strategy to distinguish itself from high-priced law firms. As its Web site states: "You pay for the forms and documents, not the expensive law school and wood-paneled offices." Wills here cost $99; bankruptcies, $199; uncontested divorces, $349.

The company's do-it-yourself approach to the law attracted 123,000 customers last year to its 123 franchised offices. This year, with nearly 200 offices expected to be up and running, 200,000 customers are expected to pay nearly $50 million to get help with their legal documents. * * *

We the People executives like to compare the franchise to the low-cost, international tax services firm H&R Block Inc. "When H&R Block came out 50 years ago, accountants and CPAs said you can't train someone in six weeks to help do taxes," said Searns. Last year, Block's revenues were $3.8 billion, with 21 million customers from 11 countries. "Every year H&R block gets a number of people come in who shouldn't use them or who get into problems," Searns said. But, he added, no one is trying to shut them down.

We the People is pressing for state and/or federal regulation that would allow its industry to operate without constant challenges, along the lines of rules recently passed in Arizona. "Because we have a new industry with all kinds of concerns, we want to know what the ground rules are," Searns said.

Using H&R Block as a role model, We the People has aggressive expansion plans. The Santa Barbara, Calif.-based franchise with two storefronts in Maryland (the second is in Cockeysville) is looking to team up with a large well-known company to place its services in thousands of outlets in the next few years. Storefront owners, who pay $89,500 for a franchise, get five days of initial training, with periodic refresher courses after that.

Here is a related article from the Texas Lawyer titled "Group Alleges Document Prep Service Provides Legal Advice by Nonlawyers" and dated 9/24/03.

Here is the We the People Forms & Services Centers USA, Inc. main page. The nationwide map of offices shows that there are no franchises operating in Indiana, but there are in all our surrounding states. Here is a list of the products and services available.

Posted by Marcia Oddi on Sunday, May 30, 2004
Posted to General Law Related

Economic Development - Impact of state and local taxes on business siting

An article today in the NY times reports that:

[A] study released this spring by the Economic Policy Institute, a nonprofit research group based in Washington, says that state and local taxes do not matter all that much to corporations. "The vast majority of the studies find that there is little or no effect of state taxes on where firms invest, and little economic effect in terms of job creation," said the study's author, Robert G. Lynch, an associate professor of economics at Washington College in Chestertown, Md.

State and local taxes paid directly by businesses - corporate income taxes, sales taxes on equipment, property taxes - account for 30 percent of all state and local taxes paid. But in 2000, Dr. Lynch concluded, these taxes were just 1.2 percent of total operating costs for companies. Because companies deduct the payments from their federal tax liability, state and local taxes eat up only 0.8 percent of total costs, or 80 cents of every $100 - hardly enough to mean the difference between profit and loss.

Here is a link to that March 2004 Economic Policy Institute study, titled "Rethinking Growth Strategies: How State and Local Taxes and Services Affect Economic Development."

However, today's NY Times article continues:

But the study may not be taking a wide-enough view of what constitutes a tax on business. In May 2003, the Tax Foundation, a policy group in Washington that advocates lower taxes, ranked the business tax climate in each state. The rankings took into account the taxes paid directly by business, as well as sales taxes, a state's fiscal balance and individual income taxes. The tax on individuals can sometimes function as a tax on business because so many businesses file income tax returns through their individual owners. "There are more sole proprietorships than there are C-corporations," said Scott Moody, a senior economist at the foundation, referring to the form of corporate organization favored by large enterprises. "And they employ 30 million people."

State income taxes can serve as an indirect tax on corporations. Consider two companies - separated by a state border - that produce roughly the same products and pay roughly the same for raw materials, interest and labor. "When taxes rise in one of the states, companies based there have to swallow the higher costs and become less profitable," said Dr. Arthur B. Laffer, chairman of Laffer Associates, an economic research and consulting firm, and an economic adviser to the Reagan administration.

The Tax Foundation website contains a wealth of material. This is the link to the State Finance page. Scroll down the page to see "Changes in State Tax Rates During 2003." Particularly interesting to me was the section about Individual Income Taxes. Montana, for instance, has ten brackets, "including the top bracket, the threshold of which went from $76,200 to $77,800. The rate on that income is still 11 percent." But I'm getting off-track. Here is the link to the State Business Tax Climate Index referred to in the NY Times article, that shows each state's tax system ranked according to how conducive it is to business growth.

Finally, and this is off-tract again, but interesting, take a look at this Tax Foundation table titled Various State Tax Rates. The you can see facts such as Indiana's gas tax ($0.18) vs. Illinois' ($0.30), and Indiana's cigarette tax ($0.555) vs. Illinois' ($0.98) vs. Kentucky's ($0.03).

Posted by Marcia Oddi on Sunday, May 30, 2004
Posted to Indiana economic development

Indiana Law - Feature on discipline of Indiana judges

The Fort Wayne Journal Gazette published this feature story today on judicial discipline in Indiana. Some quotes:

Of the more than 1,000 allegations of judicial misconduct investigated by a state panel in the past four fiscal years, public discipline was taken against judges only slightly more than 1 percent of the time. But dozens of private cautions - or confidential letters of warning - were issued by the Indiana Commission on Judicial Qualifications, which also dismissed 85 percent of the complaints.

Although lawmakers are subject to public ethics challenges and discipline against police officers is open, state law and a Supreme Court rule keep the vast majority of complaints against judges under wraps. * * *

[N]early all cases are disposed of before the public gets a chance to look at them - either by a flat dismissal or a private scolding. Of 1,013 allegations or complaints filed the past four fiscal years, 801 were immediately dismissed.

[Meg Babcock, attorney for the qualifications commission,] said this number is so high because many of the allegations are actually issues for legal appeal, such as when a defendant is unhappy with a ruling or sentence. The commission focuses only on judicial conduct.

Some cases continue to an inquiry stage - 185 in recent years. During that stage, the judge might be contacted and some basic information gathered. The seven-member commission then decides whether to dismiss the case or move to a formal investigation.

Of those 185 cases, 62 were dismissed and 82 ended in private cautions. Those are essentially letters that warn judges their behavior might be on or over the line of ethical conduct.

"They are usually a minor discretion by a judge," said Ann Borne, a Fort Wayne teacher who served two terms on the commission under former governors Evan Bayh and Frank O'Bannon.

"Whether it stays private partly has a lot to do with the attitude of the judge," she said. "Sometimes the judge is very defensive and that means we have to go further and look for patterns or problems. If there are no priors and they feel remorseful, we may go ahead and do the private caution."

Indiana isn't much different from the rest of the country, where most judicial commissions' proceedings only become public at the point of a charge or when the judge is disciplined.

Here is the website of the Indiana Commission on Judicial Qualifications. The right column of the page provides links to a number of useful items, including Activities, which leads to detailed annual reports for each year. The most recent report covers July 1, 2002 through June 30, 2003 and provides a complete review of the complaints received and actions taken during that period.

Also of interest are the links to: Advisory Opinions, which cover questions involving law practices of part-time judges, fundraising activites, nepotism, etc.; and to Disciplinary Function, an overview of the Commission's disciplinary process.

Posted by Marcia Oddi on Sunday, May 30, 2004
Posted to Indiana Law

Saturday, May 29, 2004

Law - More on California Governor's Punitive Damages Proposal

Updating our Indiana Law Blog entries from May 15th (titled "California to Follow Indiana's Lead?") and May 20th on Governor Schwarzenegger's punitive damages proposal, the NY Times tomorrow will run an Adam Liptak article headlined "Schwarzenegger Sees Money for State in Punitive Damages." Some quotes:

Gov. Arnold Schwarzenegger's new budget aims to raise almost half a billion dollars by taking 75 percent of the punitive damages that juries in California award to plaintiffs. In the process, he proposes to limit the fees lawyers can charge their clients and to protect defendants from multiple punitive awards for similar conduct.

Critics say the proposal is a Trojan horse. Though the governor presented it as a budget measure meant to raise revenue, it is, they say, a comprehensive revision of the rules governing punitive awards in injury cases - not a tax but tort reform in disguise.

At hearings in Sacramento this week, lawmakers are to hear from scholars, consumer advocates and business groups, many of whom say they find aspects of the proposal dangerously flawed. * * *

Eight states already have so-called split-recovery laws, which allocate part of punitive awards to state treasuries generally or to specific programs. Several have survived court challenges, though the Colorado Supreme Court struck down a ninth law as an unconstitutional taking of private property. Other states, including Florida, Kansas and New York, have repealed split-recovery laws or allowed them to expire. * * *

Most states with split-recovery laws allow lawyers to take their contingency fee, generally 25 to 40 percent, from the total award. California, by contrast, would allow lawyers to take a contingency fee from only the quarter of the award that would go to the plaintiff. And even that fee would be subject to a judge's determination of what is reasonable. * * *

"Limiting an attorney to a share of only 25 percent amounts to a taking," Mr. Peck said, referring to the constitutional prohibition on the confiscation of property by the government without compensation. "It forces the attorney to work for free."

As discussed in the May 15th Indiana Law Blog entry linked above, Indiana's law limits the plaintiff to 25% of punitive damages, and the attorney's share, as confirmed by our Indiana Supreme Court, comes out of the 25%.

[Update] This graphic that accompanies the NY Times story shows how Indiana's legislation compares with the currently 7 other states insofar as the state's share.

Posted by Marcia Oddi on Saturday, May 29, 2004
Posted to General Law Related

Not law but important - Down syndrome, Alzheimer's link

As this story in today's Boston Globe points out, "A half-century ago, people with Down syndrome were seldom expected to live past age 12." Further:

For years, doctors have known about the genetic link between Alzheimer's and Down syndrome. Specialists say virtually all brain autopsies of adults with Down syndrome show lesions pointing to Alzheimer's. But as the life expectancy of people with Down syndrome has increased dramatically to 55 and older, state officials are realizing that they need to learn more. * * *

In the 1970s and early 1980s, people with mental retardation were moved out of institutions and into private homes, Oxx said. As part of this effort to mainstream those with mental retardation, advocates also began pushing state agencies to focus more on a person's abilities and less on their conditions, she said. The agencies complied.

"There wasn't so much of an emphasis on the diagnosis. People didn't want labels as they moved into adulthood," Oxx said. "It didn't matter if you had Down syndrome. That became almost extraneous data."

But that data is now crucial, she said. Counselors working with people with Down syndrome need to spot early warning signs of Alzheimer's to ensure they receive proper treatment. Knowing that a certain segment of the population is extremely likely to develop Alzheimer's can help the state determine what kind of residential facilities or day programs might be needed. * * *

Not only will people with Down syndrome develop Alzheimer's sooner than others, but their symptoms can be different, said Dr. Florence Lai of McLean Hospital, who focuses on patients with Down syndrome and Alzheimer's disease. For example, seizures are much more common in people with Down syndrome and Alzheimer's, she said. Doctors, in general, also need more information, particularly because people with Down syndrome show other premature signs of aging, Lai said.

"Hearing loss, cervical and neck arthritis, menopause, a lot of things come very early," she said. "The more people know about what's going on with people with Down syndrome, the better off those people are going to be in their treatment."

Posted by Marcia Oddi on Saturday, May 29, 2004
Posted to General News

Economic Development - Story of private incentives winning out over government programs

The Fort Wayne News-Sentinel ran an interesting guest column Friday, written by an economics professor at Ball State University, Cecil Bohanon. The column describes the true story behind how the Ball family moved to Muncie:

Currently, a major topic in every Indiana community is what should be done to encourage economic development. There is a great debate over the use of tax abatements and other public-sector incentives often used to lure and retain business to a community. Abatement and economic development proponents have used Muncie and the Ball family as an example to buttress the case for government-sponsored incentives for business. Their story goes like this:

"Tax incentives and public incentives to attract industry aren't anything new. As a matter of fact, they've been around a long time. The Ball brothers were drawn to Muncie precisely because of the incentives offered. George C. Ball ended up locating his glass plant in Muncie because he got $5,000, seven acres of land and a free gas well."

This version of the Ball story is touted to support the position that communities need these kinds of incentives, that they are necessary to economic development and that they have a long history.

Well, the Ball story is true as far as it goes. However, it is interesting to note that the incentives that the Ball family got to move from Buffalo to Muncie were not, and I repeat were not, provided by the city government of Muncie. Rather, they were provided by private individuals who gave the Balls the $5,000, the seven acres of land and the gas well. Not a dime came from tax dollars; all was from private resources.

I recommend the whole article, particulalry the part about how Bowling Green was in the picture for a while, but lost out because "the council and the mayor were arguing about how to finance an incentive package for the Ball brothers."

Posted by Marcia Oddi on Saturday, May 29, 2004
Posted to Indiana economic development

Environment - An economic perspective of environmental law and policy

Available online as a pdf download is the 95-page chapter titled "Environmental Law and Policy" from the forthcoming Handbook of Law and Economics, edited by A. Mitchell Polinsky and Steven Shavell, and to be published by North-Holland/Elsevier Science. Access the abstract here; scroll past the abstract for the download button.

Posted by Marcia Oddi on Saturday, May 29, 2004
Posted to Environmental Issues

Friday, May 28, 2004

Indiana Decisons - Five Court of Appeals Rulings Posted Today

Margaret Young, Guardian of Michael Sweeney v. Estate of Robin Sweeney (5/28/04 IndCtApp) [Civil Procedure]
May, Judge

[W]e find sua sponte we have no jurisdiction to hear this appeal and therefore dismiss it. * * *

Because Youngs interlocutory appeal is not properly here under App. R. 14, we do not have jurisdiction over this appeal. App. R. 5(B). Accordingly, we must dismiss.Dismissed.
NAJAM, J., and BAKER, J., concur.

Bank of New York v. Stephen Nally, et al. (5/28/04 IndCtApp) [Banking; Attorney Fees]
Baker, Judge
The circumstances of this case present an issue of first impression in Indiana: Is a mortgagee entitled to recover attorneys fees incurred when litigating the issue of mortgage priority? * * *

While we note that other reported cases have permitted mortgagees to collect attorney fees for defending claims made against them by the mortgagors, the rationale set forth in those cases differs significantly from the circumstances here, because in those matters, the fees were incurred as a result of direct litigation with the mortgagors and not with third parties. Put another way, the mortgagors chose to defend themselves and participate in the litigation process. Conversely, the Nallys did not do so here. * * *

For the above reasons, we conclude that the trial court erred when it awarded the Owenses the amount of fees they incurred in litigating the mortgage priority issue with the Bank. The Nallys never participated in the matter, and the language contained in the mortgage documents did not expressly authorize entitlement to such attorney fees. Thus, the trial court abused its discretion in awarding the amount of fees that the Owenses incurred in litigating the issue of priority against the Bank. As a result, we affirm in part, reverse in part, and remand this case to the trial court for a proper determination of attorney fees, along with costs and interest to which the Owenses are entitled. Affirmed in part, reversed in part and remanded.
FRIEDLANDER, J., and BAILEY, J., concur.

Thomas Batterman v. Laurel (Batterman) Bender (5/28/04 IndCtApp) [Family Law]
Baker, Judge
In this interlocutory appeal of right pursuant to Indiana Appellate Rule 14(A)(1), appellant-petitioner Thomas Batterman appeals the trial courts order concerning a temporary child support order in favor of appellee-respondent Laurel Batterman. Specifically, Thomas raises three issues: whether Indiana had jurisdiction where the foreign child support order had not been properly registered, whether Indiana substantive law should apply, and whether Indiana had the authority to modify the child support order without an evidentiary hearing. Finding that Thomas invited any error and that Indiana law applies in this matter, we affirm. * * *

Conclusion. Thomas has waived his arguments as to whether the Wisconsin order was properly registered and whether the trial court had sufficient evidence to enter the temporary child support order and apply it retroactively inasmuch as he invited any error that may have occurred. Furthermore, the trial court properly utilized Indiana law throughout these proceedings. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Jennifer Megyese v. Bobbie & Anthony Woods (5/28/04 IndCtApp) [Family Law]
Sharpnack, Judge

This is a grandparents' visitation rights case. Mother the trial courts grant of visitation to paternal Grandparents. The Court here affirms.

The trial courts conclusions of law were as follows:

[Mothers] decision to prevent any visitation by [Grandparents] must, of course, be given special weight pursuant to Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.E.2d 49, and the Indiana cases that have applied and followed it. Accordingly, a presumption exists that her decision is in [the Childrens] best interests. Nonetheless, . . . this presumption is rebuttable and the petitioning grandparent has the burden of rebutting this presumption. Crafton v. Gibson, [752 N.E.2d 78, 98 (Ind. Ct. App. 2001)].

Accordingly, it is the trial courts prerogative to listen to the evidence and determine, in light of that evidence, whether a parents alleged justification for denying or restricting visitation with grandparents holds water. Spaulding v. Williams, [793 N.E.2d 252, 260 (Ind. Ct. App. 2003)].

The greater weight of the evidence: rebuts [Mothers] decision to terminate contact with [Grandparents], the reasons for which appear unfounded; and
supports the proposition that visitation with their paternal grandparents is in [the Childrens] best interests.

The sole issue is whether the trial courts order granting Grandparents visitation with the Children is clearly erroneous. Ind. Code 31-17-5-1 (1998) governs grandparent visitation rights, and provides that: (a) A childs grandparent may seek visitation rights if: (1) the childs parent is deceased; (2) the marriage of the childs parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock. (b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the childs father has not established paternity in relation to the child.

Ind. Code 31-17-5-2 (1998) provides that: (a) The court may grant visitation rights if the court determines that visitation rights are in the best interests of the child. (b) In determining the best interests of the child under this section, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. * * *

In summary, the trial court did not fail to accord a presumption in favor of Mothers decision to deny visitation. Rather, it weighed the evidence and concluded that Mothers reasons for denying visitation were unfounded. Moreover, the trial court did not fail to make specific findings of fact and conclusions thereon, explaining why Grandparents visitation is in the Childrens best interests. Therefore, the trial courts order granting Grandparents visitation with the Children is not clearly erroneous. For the forgoing reasons, we affirm the judgment of the trial court awarding Grandparents visitation rights with the Children. Affirmed.
DARDEN, J. and ROBB, J. concur

Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation (5/28/04 IndCtApp) [Constitutional Law]
Sullivan, Judge

Here the Parents claim that the EVSCs policy of charging students a certain fee violates Article 8, Section 1 of the Indiana Constitution. The trial court granted summary judgment in favor of the school corporation. The Court of Appeals reverses and remands.

Beginning with the 2002-2003 school year, the EVSC imposed a twenty-dollar student activity fee upon students in kindergarten through twelfth grade. The EVSC School Board imposed this fee at the recommendation of the teachers union and the EVSC, which worked together to find a solution to the EVSCs budget deficit without raising taxes. In 2002, the EVSC had incurred a budget deficit of $2,300,000, and for 2003, the projected budget deficit was $5,500,000. Approximately $1,500,000 of the 2002 deficit was the result of the States failure to provide funds which had been anticipated, and the remainder of the deficit was the result of increased costs in the EVSCs standard operations. The EVSC is required by State law to have a balanced budget. The fee, along with State funds and local property tax revenues are deposited into the EVSCs general fund, which is used to fund school expenses. The EVSC does not maintain a specific object number or function number to track what the money collected as a result of the fee is used to pay for.

Nevertheless, the EVSC claims that the fee is used to pay for the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (3) media specialists, formerly known as librarians; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular activities, which includes athletic programs, the drama program, the music program, academic programs, and speech and debate programs.

The fee was assessed against all students, regardless of whether they were eligible to participate in the reduced or free lunch and textbook programs. If the parents of a student fail to pay the fee, the parents are notified that their bill will be referred to a law firm for collection and that attorneys fees of up to $100 will be charged regardless of whether a collection suit is actually brought against them. After the filing of the current action, and by agreement of the parties, the EVSC has decided not to initiate any collection proceedings until a final judgment has been rendered in the present case. * * *

In their appeal, the Parents challenge the trial courts grant of summary judgment in favor of the EVSC upon the Parents claim that the EVSCs imposition of the fee violates Article 8, Section 1 of the Indiana Constitution, which reads:

Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools,wherein tuition shall be without charge, and equally open to all.
According to the Parents, the fee amounts to a charge for tuition, which is violative of the constitutional provision in question. Our task is to determine what is meant by the phrase wherein tuition shall be without charge. * * *

[T]hat the EVSC claims that the money generated by the fee is used only towards the cost of personnel or services that are in addition to those required by the Legislature or the Board of Education is not dispositive of the issue, because under our interpretation of Article 8, Section 1, the EVSC might very well be prohibited from charging students for costs above and beyond personnel or services that are required by the State. Those personnel and services required by the State would indeed be within the ambit of those necessary expenses for which the EVSC may not constitutionally charge students, but what is necessary under our analysis to educate students might well go beyond what is required by the State.

More importantly, however, Mr. Yeagers earlier testimony indicated that it was impossible to tell whether the money generated by the fee went to fund a specific activity. The money collected from the fee was not tracked inside the EVSCs budget. By the practice of commingling and not keeping track of the money generated by the fee, such funds lost their specific identity. * * * Thus, the Parents have established that the money generated by the fee is used in some manner to pay for what amounts to tuition. This amounts to a charge for tuition in violation of Article 8, Section 1. The trial court erred in concluding otherwise, and we therefore reverse the judgment of the trial court and remand with instructions to enter summary judgment in favor of the Parents. * * *

The judgment of the trial court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
ROBB, J., concurs.
BAILEY, J., dissents with opinion:

I respectfully dissent from the majoritys determination that the fee policy at issue violates the Indiana Constitution. In particular, I disagree with the majoritys conclusion that the word tuition, as used in Article VIII, Section 1 of the Indiana Constitution, includes the services of a teacher or instruction, as well as those functions and services which are by their very nature essential to teaching or tuition. The issue before us is whether the imposition of a student activity feewhich is used to fund the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (3) media specialists; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular activitiesviolates the Indiana Constitutions mandate that the General Assembly provide a uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all. See Ind. Const. art. VIII, 1. Resolution of this issue requires us to interpret the constitutional meaning of the term tuition. * * *

[Note] The Indianapolis Star already has posted a brief story on today's ruling, headlined "State court strikes down school fees: ICLU led challenge of mandatory charges some districts impose on parents of students."

[Update 5/29/04] Here is the expanded, and front-page, Star coverage. Some quotes from this excellent story:

Requiring parents of public school students to pay mandatory fees to cover the expense of counselors, librarians, nurses and after-school programs is unconstitutional, an Indiana court ruled Friday. The Court of Appeals panel also strongly hinted that Indiana's textbook rental fees, which can go as high as $400 per child, rest on shaky legal ground.

The 2-1 ruling will be appealed to the Indiana Supreme Court, which has never addressed the issue of whether public schools can charge fees. If upheld, the ruling would deliver a serious budget blow to cash-strapped public schools that rely on activity, health, lab and textbook fees to supplement state and local tax money. Most of Indiana's 294 school districts charge fees of some kind.

"The message here is directed at the General Assembly: Either start funding schools adequately or change the Constitution," said Kevin McDowell, chief counsel for the Indiana Department of Education. * * *

But Patrick A. Shoulders, an attorney representing the Evansville school district, said the ruling left him dumbfounded. He said the district will appeal. "The majority in this case has some litmus test -- only known to them -- as to what's necessary to educate students," Shoulders said. "This is a very active court, and this is a very activist decision. The ramifications are far-reaching."

The ruling echoed the reasoning of Indiana Attorney General Steve Carter, who in 2001 advised that charging a "health service fee" to pay the salaries of school nurses was unconstitutional. The Department of Education agrees with Carter's advisory opinion and discourages districts from using fees to cover educational expenses.

But the Indiana School Boards Association has argued that such fees are not unlike those charged for textbooks. In 1974, the Court of Appeals narrowly defined free tuition in a South Bend lawsuit to permit schools to charge textbook rental fees. Parents of low-income students do not pay book fees.

But this argument may no longer hold. In a footnote to the Evansville case, Sullivan called the court's legal reasoning 30 years ago in the textbook case "dubious at best."

Here is the story this morning from the Evansville Courier&Press. Some quotes:
INDIANAPOLIS - The Indiana Court of Appeals ruled Friday that a $20 activity fee imposed by the Evansville-Vanderburgh School Corp. violates the Indiana Constitution. In a 2-1 decision, the court found that the fee is mixed with the school's other money and therefore equals tuition payments used to fund instruction. The EVSC had argued the fee isn't tuition because the money only pays for extras such as librarians, nurses and counselors, rather than teachers.

Indiana's constitution calls for "a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all."

Previously, the only court case that ruled on what makes up tuition was a 1974 decision in which the Indiana Supreme Court found that charging students for textbooks does not amount to tuition and is allowed. But the appeals court found the fee crossed the line into tuition.

"Although the fee being charged by the EVSC is currently 'only' $20, nothing in the logic of the EVSC's argument ... would prohibit public schools from charging a student a $200 fee, or for that matter even a $2,000 fee," Judge Patrick D. Sullivan wrote in the majority opinion.

"This logic would permit our system of public schools to be priced out of reach in order to avoid raising local taxes," he added. "It would be a cold comfort indeed to inform a Hoosier family of limited means that they could send their children to public schools without being charged for teachers' salaries, but to say that they would be charged for school buildings, heating, electricity, textbooks, etc."

And the majority opinion then took issue with the 1974 decision. "We have our doubts with respect to the holding of (the 1974 case)," Sullivan wrote. "We are not beholden to blindly follow what we consider to be an erroneous holding."

Judge L. Mark Bailey disagreed with the majority's conclusion, arguing that the framers of the state constitution used the word "tuition," which they are bound to interpret only using its strictest meaning - the cost of teaching.

Posted by Marcia Oddi on Friday, May 28, 2004
Posted to Indiana Decisions

Indiana Decisions - Two 7th Circuit rulings posted today in sentencing case

MADEJ, GREGORY v. BRILEY, KENNETH R., WARDEN (ND Ill.) On petition for rehearing.

MADEJ, GREGORY v. BRILEY, KENNETH R., WARDEN (ND Ill.) Amends 4/21/04 decision.

Posted by Marcia Oddi on Friday, May 28, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending May 28, 2004

Here is the Indiana Supreme Court's transfer list for the week ending May 28, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, May 28, 2004
Posted to Indiana Transfer Lists

Indiana Law - Tax postcard confuses homeowners

That is the headline to this story today from the Johnson County Daily Journal. I love this story. Here are some quotes:

Local property owners received a surprise notice in the mail last weekend: Taxes were 40 percent lower thanks to action taken by state lawmakers.

State legislators ordered Indiana counties to send postcard messages to property owners, informing them that their taxes could have been higher. The cards confused residents by telling them their property taxes which on average increased 18 percent are lower than they could have been. * * *

State law required that Indiana counties send notices to property owners on behalf of the legislature. County officials often blame the state for increased taxes, and legislators wanted to show how the general assembly kept tax bills low, said Sen. Robert Garton, R-Columbus.

The postcards resulted in dozens of heated phone messages to the county treasurers office. Residents did not understand that state law required county officials to send the notices, Treasurer Jan Richhart told the county commissioners Monday.

The county paid $5,400 to send notices to more than 38,000 property owners.

We had to do this, county attorney Joe Pitcher said. It was a state mandate.

Property owner B.J. Nowacki said the postcards werent clear enough for some residents to understand. State officials should have used examples to show that tax bills did not skyrocket because of the court-ordered reassessment.

The assessed value of Nowackis house and two-acre lot in Greenwood nearly tripled in 2003, but the tax bill rose by just 23 percent.

Posted by Marcia Oddi on Friday, May 28, 2004
Posted to Indiana Law

Indiana Law - New food handler certification rule

According to this story in the Fort Wayne News-Sentinel yesterday:

A new law has an estimated 20,000 restaurants, grocery stores, vendors and even gas stations across the state scrambling to have a certified food handler on staff by Jan. 1, said Scott Gilliam, director of the Food Protection Program for the Indiana State Department of Health. "Easily, we're going to have to have 50,000 people certified by January," Gilliam said.

Its goal is to protect the public from unsafe food. But Mindy Waldron, Food Division director of the Fort Wayne-Allen County Department of Health, and Gilliam said the law written by the Indiana Restaurant and Hospitality Association has its weak points. The food handlers are not required to be on site, and there are no guidelines for how they are to supervise the rest of the staff. "We are in the process of formulating some policy on this," Gilliam said. "Our belief is that the person must have primary oversight for food safety. That means you can't hire a teenager who works on the serving line and think you have oversight." * * *

To date, 18 states have some version of a food-handler certification requirement, said Leeann Chuboff, manager of science and regulatory relations with the National Restaurant Association Education Foundation. To be certified, a food handler must pass a written exam. Noncompliance can result in up to a $100-a-day fine for the establishment.

While not required, the state has recommended food handlers take an accredited course before taking the exam. * * * Courses are being offered throughout the state, including by Purdue University Extension offices, health departments and private companies. The cost is minimal; daylong courses range from $65 to $150. For management personnel, the responsibility of food handler will likely just be added to their regular duties. Some fast food chains may bump up hourly wages a bit for nonmanagement food-handlers.

Details are available here on the Indiana State Department of Health website, includng this:
The new Indiana State Department of Health (ISDH) Rule 410 IAC 7-22, Certification of Food Handler Requirements. This rule became effective on June 19, 2003; however, the actual certification requirement does not take effect until January 1, 2005. The new rule incorporates much of the language in IC 16-42-5.2 with a few additions for clarity.

Posted by Marcia Oddi on Friday, May 28, 2004
Posted to Indiana Law

Indiana Decisions - Update on Lake County reassessment case

Updating our ILB entry from May 19th, which reported that the Lake County reassessment case was "in the hands of" the Indiana Supreme Court are reports in several papers this morning that the Court acted yesterday. From the Gary Post Tribune:

Lake County property tax bills can go out based on the controversial countywide reassessment, the state Supreme Court ruled Thursday.

But the court also scheduled oral arguments on the merits of the reassessment by the private firm Cole Layer Trumble, leaving open the possibility it could still find the work unconstitutional.

In a two-page ruling, the court stayed Lake Superior Court Judge Robert Petes May 7 order in favor of the Miller Citizens Corp. Petes ruling said remaining partial Lake County 2002 property tax bills had to go out using 2001 assessments and tax rates. * * *

The courts unanimous ruling orders representatives of the MCC and the governors office to appear in Indianapolis June 23 for oral arguments. The court plans to consider whether Pete had jurisdiction to hear the MCC lawsuit. But the ruling also orders both sides to be prepared to argue whether it was constitutional for the state legislature to force only Lake County to hire a private firm to conduct its reassessment.

From the Munster Times:
The Indiana Supreme Court on Thursday took the shackles off the Lake County treasurer's office with a ruling it can mail out the remaining 2002 property tax bills based on the new reassessment. * * *

The order, though, was packed with a one-two punch.

Indiana's high court did not rule on a May 7 decision by Lake Superior Court Judge Robert Pete that challenges the constitutionality of Lake County's reassessment by an outside firm. Pete's decision was in response to an April lawsuit filed by the Miller Citizens Corp., composed of Gary residents upset with the reassessment and how it skyrocketed their tax bills. Pete agreed the procedure was improper, and stopped the county from mailing tax bills calculated from the reassessment.

By not ruling on this issue, it enables the high court to hear arguments on the constitutionality factor, as well as the Indiana attorney general's contention over what court in the state has proper jurisdiction to decide a tax case. Indiana Attorney General Steve Carter believes the state's Tax Court is the proper venue to decide this issue; the Miller group argues Pete had proper jurisdiction.

Chief Justice Randall Shepard's two-page order also puts the case on a fast track with oral arguments on the remaining issues set for June 23.

From the Indianapolis Star:
Lake County can now send out property tax bills that have been delayed by a lawsuit challenging sharp increases for some homeowners, the Indiana Supreme Court ruled Thursday. But both sides in the tax fight must appear before the court in Indianapolis next month to argue the case further, the court ruled.

The Lake County dispute centers on a more potent version of the reassessment pain suffered last year by some Indianapolis residents, who saw their property taxes more than triple. The difference was that in Lake County, a special reassessment also shifted the responsibility for millions in property taxes from U.S. Steel Corp. to residential payers.

A Lake County judge this month halted the mailing of bills after declaring that the special reassessment was unconstitutional. The state appealed the decision. The state Supreme Court did not rule Thursday on the constitutionality question, instead ordering oral arguments for June 23. * * *

The shift of millions of dollars in property taxes from U.S. Steel to residential payers was made after the company, which employs 7,500 in Gary, argued that declines in its business had made its property worth significantly less.

The Supreme Court's order in this case has not yet been posted online. When it is, probably later today, I will provide a link here. Meanwhile, if you wish to review the docket, the case is: STATE OF INDIANA EX REL. THE ATTORNEY GENERAL -V- LAKE SUP. , Case Number: 45 S 00 - 0405 - OR - 00204.

Posted by Marcia Oddi on Friday, May 28, 2004
Posted to Indiana Decisions

Law - Collect calls to attorneys from prisoners

I remember refusing a number of collect calls "from Westville" a few years back. As I do not practice criminal law, I assumed some inmates must have had a list of Indiana attorneys and were making calls at random.

In San Francisco the phone company charged for these unaccepted calls, according to this very interesting story today in Law.com. (Note - You may have to register.) Some quotes from the story:

Mysterious, one-minute calls popped up on Bicka Barlow's phone bill a few years ago. After she did a little detective work, the San Francisco criminal defense attorney figured out why. The phone company was charging her for jailhouse collect calls that she didn't accept -- and in some cases, the phone company billed her when no one answered her law office's phone.

"It made me very irritated and upset," Barlow said. While Barlow was eventually credited for the charges, she spent a year disputing the calls, which added $15 to $20 to her monthly bill. Criminal defense attorneys are the star plaintiffs in Condes v. Evercom, 2002054255, an Alameda County, Calif., case that seeks class action certification.

This part is particularly interesting:
At the center of the dispute is how collect calling works at prisons and county jails. However, the technology used to run jailhouse phone systems is a closely guarded secret. As a result, many case documents in Condes have been put under seal. In addition to a protective order, some documents have been marked for "attorneys' eyes only" to prevent defense attorneys, for example, from passing along a rival phone company's trade secrets to a client. In fact, plaintiffs attorneys declined to describe how the collect calls work because doing so might violate protective orders in the case.

A 2001 annual report by defendant T-Netix sheds a little light on the inmate phone service industry. T-Netix, which provides "inmate calling services" to 1,400 facilities, estimated that there were 10 major competitors in the field. Jailhouse calls are lucrative because most inmates may only make collect calls. Since the calls are limited in length, inmates make a high number of calls. T-Netix, which is no longer a public company, made $120 million in revenues in 2002, according to the last annual report available. And T-Netix isn't even the largest company in the suit. Evercom serves 2,000 correctional facilities.

Posted by Marcia Oddi on Friday, May 28, 2004
Posted to General Law Related

Thursday, May 27, 2004

Indiana Decisions - Two Court of Appeals opinions posted today

Monica Kay Lasater v. William Scott Lasater (5/27/04 IndCtApp) [Family Law; Civil Procedure]
Barnes, Judge

Monica Lasater challenges the trial courts order granting to her ex-husband, William, custody of their daughter, C.L., and limiting her visitation with the child. We affirm.

Issues. Monica raises four issues for our review, which we restate as: I. whether the trial court abused its discretion when it found her in contempt of court; II. whether she was deprived of due process; III. whether the trial courts findings are clearly erroneous; and IV. whether the trial court erroneously restricted her visitation.

We also address inflammatory and inappropriate comments contained in Monicas brief.

The facts in this case should be read in full. An example: "At the commencement of trial, Monica filed a letter attempting to discharge her court appointed attorney, and she proceeded with the trial pro se." According to a footnote: "The trial court did not permit Monica to discharge her counsel entirely and ordered counsel to remain in the courtroom during the trial for advisory purposes." At my count, this was her fifth attorney in this action. Here is some of the Court's discussion of Monica's brief. [I am unclear after reading this opinion as to whether Monica or, if I understand this correctly, her now advisory attorney (from the Notre Dame Legal Aid Clinic) wrote the brief]:
We would be remiss if we did not comment on the inflammatory nature of Monicas Appellants Brief. There are several instances where Monica makes inappropriate comments in her brief and at some points makes allegations of unethical conduct by judges and attorneys. We note a few of those instances.

When referring to the trial courts rulings relating to the Williams witnesses versus those relating to her own witnesses, Monica claims, This pattern of harassment of Monica and deference to anything William does continued throughout the trial. She further alleges that the trial judge interfered with the presentation of [her] case repeatedly. Indeed, she baldly claims, The judge articulated his bias quite clearly on several occasions. With respect to her due process argument, she states:

It is perhaps true that each of these errors, taken individually, could be seen as harmless. However, they cannot be viewed in isolation. Something was seriously wrong with this case. It is the pattern which must be considered. It cannot be easily explained. It is not rational that a judge would be checking out a case file years after being recused or that a Clerks office would refuse to serve the attorney of record in a case, but both happened in this case. Ms. Lasater believes it happened because her husband and his attorney have money, power and influence in Allen County and she does not. We will never know. Perhaps all the strange happenings in this case were coincidental, but perhaps not.
* * * It is not Monicas challenge to the trial courts decision in and of itself with which we are concerned. Lawyers are completely free to criticize the decisions of judges. However, as licensed professionals, they are not free to make recklessly false claims about a judges integrity. In re Wilkins, 782 N.E.2d 985, 986 (Ind. 2003), cert. denied, 124 S. Ct. 63. By alleging that the trial courts decision was based on the judges personal feelings about Monica or the other personalities involved in the case, she impugns the judges integrity.

Our supreme court recently addressed similar concerns in In re Wilkins, 777 N.E.2d 714, 717 (Ind. 2002), modified on rehearing. In that case, the supreme court reviewed language contained in a footnote in a petition for rehearing. The offending language consisted of:

Indeed, the [Court of Appeals] Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).
In finding that the comments in the footnote were not even colorably appropriate, the supreme court reasoned that in the footnote, the respondent suggested that the judges on the court of appeals may have been motivated in their decision making by something other than the proper administration of justice and suggested unethical motivations. Our supreme court further explained:
[W]e find that the respondent offered no evidence to support his contentions that, for example, the Court of Appeals was determined to find for appellee, no matter what. Without evidence, such statements should not be made anywhere. With evidence, they should be made to the Judicial Qualifications Commission.
Here, such comments do little to advance Monicas position as to why the trial court committed reversible error and, therefore, do not promote responsible advocacy on her behalf. Significant parts of her brief are permeated with sarcasm and disrespect. * * * For the use of impertinent, intemperate, scandalous, or vituperative language in briefs on appeal impugning or disparaging this court, the trial court, or opposing counsel, we have the plenary power to order a brief stricken from our files and to affirm the trial court without further ado. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). In the interest of evaluating the merits of Monicas issues on appeal, we choose not to strike the Appellants Brief filed by Monicas counsel or any portion thereof. Because we choose not to exercise our discretion to strike the brief, however, counsel should not confuse this with approval or condoning of the unprofessional, disrespectful, and at times outrageous remarks and allegations made in the body of the brief. We appreciate vigorous advocacy, but we will not countenance the sort of lawyering exhibited here. We admonish counsel to advocate more professionally in future matters before this court.

Conclusion. The trial court did not abuse its discretion when it found Monica in contempt, and she was not deprived of her due process rights by the trial court. Furthermore, the findings are supported by the evidence. The trial court did not abuse its discretion in ordering restricted visitation between Monica and C.L. given the facts of this case. We affirm the trial courts order in all respects. Affirmed.
KIRSCH, C.J., and FRIEDLANDER, J., concur.

Wal-Mart Stores, Inc., et al. v. Berdita L. Bailey & Sue Rhodus (5/27/04 IndCtApp) [Employment Law; Civil Procedure]
Sullivan, Judge
Wal-Mart Stores, Inc. appeals from the trial courts order certifying a class of current and former employees in the State of Indiana for claims asserted by Berdita Bailey, a former Wal-Mart employee. The main issues presented by Wal-Mart for our review are; (1) whether the class definition improperly includes class members who have no standing in the litigation, and (2) whether the trial court erred in concluding that common issues predominate and that a class action is superior to other methods of adjudicating the controversy. We conclude that the issue of whether the class definition includes individuals who have no standing in the litigation is dispositive, but because the other issues present concerns which may arise upon remand, we address those in turn. We reverse and remand. * * *

Bailey is a former Wal-Mart employee who now claims that she was subject to a corporate policy at Wal-Mart which caused her to work off the clock and be uncompensated for her time. * * * Bailey claims that because Wal-Mart has instituted the management and payment structure in place, it has forced managers to adopt or condone wrongful cost-saving practices and encourage hourly employees to work off the clock and through rest and meal breaks. She alleges that employees are faced with the dilemma of having more work to do than can be completed in a shift, but Wal-Mart policy is to limit overtime. As a result, she contends that employees must clock out and continue to work without pay. Moreover, she claims that employees are not given rest and meal breaks or are called back to work before their break is over. Evidence demonstrated that some store managers edit employee time records to show that breaks were taken or that individuals clocked out without ever confirming with the employee that the break was taken or whether they left work at a certain time. Finally, Bailey alleged that employees have been locked in stores overnight and the stores were not opened on time the following morning.

Plaintiff sought to have the litigation certified as a class action. Following a hearing, the trial court granted her motion and ordered that the class be defined as [a]ll current and former hourly employees of Wal-Mart Stores, Inc. (including its operating divisions Sams Club and Wal-Mart Supercenters) in the State of Indiana during the period August 1, 1998 to present. Wal-Mart subsequently sought certification of the order for interlocutory appeal. That motion was granted; consequently, as the court here states: "the issue of class certification is properly before this court. " However, the Court here reverses the order certifying class, and continues:
Even though we have determined that the class as defined is not properly maintainable, the class may be redefined in order to sustain the lawsuit.
After describing the options in some detail, the court here concludes:
Nonetheless, we will not speculate with respect to how the parties will proceed upon remand. The order certifying the class is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
ROBB, J., and BARNES, J., concur.
More. Some of you may recall two earlier Indiana Law Blog entries: "Altering of Worker Time Cards Spurs Growing Number of Suits," from 4/4/04; and "Overtime suits being filed in record numbers," from 4/13/04. The latter references an Indiana suit involving Wal-Mart.

[Even more] The Wall Street Journal yesterday (paid subscription required) had a front page story with this lead: "Some of the nation's biggest and most cost-sensitive retailers, including Wal-Mart Stores Inc., RadioShack Corp. and Dollar General Corp., are battling a raft of lawsuits accusing them of using low-level managers to do the work of regular employees, in order to avoid paying overtime."

Posted by Marcia Oddi on Thursday, May 27, 2004
Posted to Indiana Decisions

Indiana Decisions - Three 7th Circuit Decisions Posted Today


Greg Little was (and once again is) a Revenue Special Agent for the Illinois Department of Revenue (the Department). He filed a complaint alleging that the Department fired him because of his race and because he spoke out against racial discrimination. Little appeals from the entry of summary judgment regarding his claims for racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., and First Amendment retaliation. We affirm. * * *

Before the district court, Little proceeded solely under the indirect method of proving racial discrimination and retaliation in violation of Title VII. His failure to point to a similarly situated employee who was both outside of either of his protected classes and who engaged in comparably serious conduct prevents him from establishing a prima facie case of either claim. Moreover, because the Department put forth a legitimate reason for Littles termination, Little had to point to evidence from which a reasonable jury could conclude that this reason was pretextual. Little failed to do so, which means that summary judgment was appropriate as to his claims under Title VII. The same logic dooms his claim for First Amendment retaliation, because Little cannot show that, but for his protected speech, he would not have been fired. AFFIRMED.


USA v. WELCH, ANDRE (ND Ill.) FLAUM, Chief Judge.

The admissibility of expert scientific testimony is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 589-92. Daubert established a two-part test for district courts, which must determine first whether the proposed experts testimony reflects valid scientific knowledge, and if so, whether this testimony will assist the trier of fact to understand or determine a fact in issue. In this case, both parties agree that Dr. Maclin utilized reasoning and methodology that was scientifically valid. The only disputed issue is thus whether this information would have been of assistance to the jury. * * *

The expert testimony proposed by Welch, however, was not direct evidence regarding whether he committed the crime. Dr. Maclin would not have offered any opinion on whether Welch was actually portrayed in the banks surveillance photographs. Rather, Dr. Maclins only purpose was to question the credibility of the witnesses who believed that Welch was depicted in the photographs. As this Court has often stated, determining the credibility of witnesses is one of the jurys critical functions and is generally not an appropriate subject matter for expert testimony. [United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999)]. We therefore conclude that the district court acted properly by excluding Dr. Maclins testimony.

Posted by Marcia Oddi on Thursday, May 27, 2004
Posted to Indiana Decisions

Indiana Law - The open container law

Some quotes from an editorial today in the Helena, Montana Independent Record:

A poll commissioned by the Montana Contractors Association shows that two out three voters favor a law barring open containers of alcoholic beverages from motor vehicles. When the poll asked a further question stressing the state could lose more than $6 million a year in federal highway construction money if it doesn't pass an open-container law, the approval rate jumped to 77 percent. The figures were roughly the same for Republicans, Democrats, and independents.

Somehow, though, that public sentiment hasn't swayed legislators. Last year, once again, lawmakers balked. An open-container law died in committee and an attempt to blast it onto the floor, an effort requiring a supermajority, didn't even get a majority.

In this, the state is swimming against the national tide. Montana is one of only three states that let motorists drink and drive. The others are Mississippi and Indiana. In Alaska, Connecticut, Delaware, Missouri, Tennessee, Virginia and Wyoming passengers, but not drivers, are allowed to drink. (The governor of Louisiana recently signed a bill removing that state from this category.) Three states, Arkansas, Colorado and West Virginia, allow open containers in vehicles but nobody's supposed to drink from them! None of these state pass muster with the federal rules, which consider exceptions to an outright ban to be unacceptable loopholes.

Here is Indiana's law: IC 9-30-15. Open Alcoholic Beverage Containers; Consumption of Alcohol in Motor Vehicles. As reported in this AP story in the Louisville Courier Journal dated 1/14/04:
Indiana's current law allows passengers to have open containers of alcohol as long as the driver has a blood-alcohol level of 0.04 percent or lower half of the amount at which a driver is considered drunk under law.
This section of the open container law caught my attention:
IC 9-30-15-4. The operator of a motor vehicle who knowingly consumes an alcoholic beverage while the motor vehicle is being operated upon a public highway commits a Class B infraction.

Posted by Marcia Oddi on Thursday, May 27, 2004
Posted to Indiana Law

Law - Lawyers cash in and become librarians

"NY Lawyers Find New Careers Among the Stacks of Law Libraries" is the headline to this story today from the New York Lawyer.

[More] Here is another career track that sounds like fun for a disaffected lawyer. This story in the Washington Post begins: "In a quiet brick office park just beyond the gourmet grocery stores and high-end salons that mark McLean's business district, David Tittle spends his days scoping out the best-of-the-best intelligence experts and code breakers."

Posted by Marcia Oddi on Thursday, May 27, 2004
Posted to General Law Related

Wednesday, May 26, 2004

Indiana Law - Dispute about Marion County diversion program

This story was on the front page of the Indianapolis Star this morning. The headline: "Judge rejects fees for poor defendants: Marion County effort that dismisses cases of first-time offenders is unfair, jurist says." Some quotes (the order of several paragraphs has been rearranged):

Diversion programs, which the county has had in some form for about 30 years, give a second chance to first-time offenders. A person accused of a nonviolent crime must admit guilt, pay a fee and attend classes or submit to some other kind of court monitoring. In return, the state dismisses the case, and the person avoids a criminal conviction. * * *

A Marion County program allowing some first-time offenders to clear their names if they meet certain conditions creates two unequal systems of justice -- one for people with money and another for the poor, a county judge has ruled.

Commissioner Israel Cruz this week declared unconstitutional the way Prosecutor Carl Brizzi runs the county's diversion program. Cruz ordered the prosecutor to place a 19-year-old woman charged with shoplifting in the county's diversion program even though she cannot pay the $230 fee. * * *

State law allows every prosecutor in the state's 92 counties to set up diversion programs. Most rely on that money to keep their offices running, said Becky McClure, assistant director of the Indiana Prosecuting Attorneys Council. She said Cruz's decision, released Monday, could have a far-reaching impact. "At this stage, this is a decision in one case in Marion County," she said. "We will certainly be watching it with great interest to see where it goes." * * *

Norman Lefstein, a professor and the former dean of the Indiana University School of Law-Indianapolis, said prosecutors must apply the law fairly. "That is a classic denial of equal protection under the law," Lefstein said. "We don't have in this country one set of laws for the rich and another set for the poor."

But Johnson County Prosecutor Lance Hamner said no one should get a free ride. "Anyone who is motivated can pay the fee," he said. "When you have a judge claiming that all a person has to do is claim indigency and he doesn't have to pay, you open the floodgates."

Posted by Marcia Oddi on Wednesday, May 26, 2004
Posted to Indiana Law

Indiana Law - Allen County residents hiring private appraisers

This story today in the Fort Wayne News-Sentinel is interesting, and somewhat troubling. Headlined "Homeowners are hiring appraisers to take a closer look in hopes of lowering their tax bills," it begins:

Hundreds of Allen County residents have dramatically lowered their property taxes by paying for an "inside job" - and there's nothing underhanded about it.

In fact, private appraisals have exposed a flaw in Indiana's court-imposed shift to a market-based assessment system.

A home's value is determined by more than its size and external appearance, after all. Condition is a factor, too - and it can't be determined without going inside for a closer look. Government assessors never had time for that kind of scrutiny - which is why many private appraisers are working overtime now.

"We never would have gotten done if we'd have gone in every home," said Wayne Township Assessor Jerry Zuber, whose crews visited all 43,000 homes in the township - nearly one-third of the county's total. But those visits were external only, confirming the home's size, features and other easily visible factors. As a result, they often missed hidden problems that are now being detected by private appraisers such as Tom Heine and Mike Roach.

"Business is up 100 percent," said Heine, a 25-year veteran who has appraised 12 homes in the past month or so. While most of those appraisals have persuaded officials to decrease the owner's assessment by an average of about 60 percent, a few owners have done far better.

Posted by Marcia Oddi on Wednesday, May 26, 2004
Posted to Indiana Decisions

Environment - Indiana-related stories today

Landfills. "Judge upholds rejection of local landfill: Attorney for county board of zoning appeals says ruling supports local control." Some quotes from this story in the Munster Times:

VALPARAISO -- Porter Superior Judge Bill Alexa has upheld a decision by the county board of zoning appeals to reject a proposed 354-acre landfill in Porter Township. The court released the ruling Tuesday, nearly seven weeks after attorneys argued the case in court and two years after the BZA denied a special exception for the proposal at County Roads 550 South and 250 West.

BZA attorney Lily Schaefer said the ruling is most significant because it upholds local control over these types of proposals. Attorneys representing the Lake County Trust Co., which sought the special exception, argued the decision should be up to state and federal officials, she said.

A story from the Gary Post Tribune reports:
The decision by the BZA to deny (Lake County Trust Companys) petition for special exception was not arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law, [Judge] Alexa wrote in his decision. Instead, Alexa wrote, the appeals board took into account substantial evidence at its April 2, 2002 hearing that concerned Indian burial grounds, harmful effects of increased truck traffic, effects on the local watershed and ground-water supply, discouragement of area residential development, and possible increase of scavenger animals and associated diseases.

And Alexa cited a 1973 Indiana Court of Appeals case, Johnson County Plan Commission v. Fayette Building Corp., which held that as a rule the court will not reverse the decision of the Board of Zoning Appeals where there is evidence to support it nor will the court substitute its own judgment for that of the board. * * *

The appeals board has already retained an Indianapolis law firm, Sommer Barnard Ackerson, to assist board attorney Lily Schaefer in the event the case advances to Indianapolis.

Glenn Sechen, the Chicago-based attorney for the trust company, said he had not had a chance to review the decision and could not comment on any potential appeal.

Sechen had argued the appeals board applied ad hoc standards to the landfill case, violating federal landfill rules, such as the Resource Conservation and Recovery Act (RCRA), as well as the authority of the Indiana Department of Environmental Management and the Indiana Department of Natural Resources.

Earlier Indiana Law Blog entries on this dispute may be found here (3/11/04) and here (2/5/04).

Another landfill story was published today in the Muncie StarPress. It concerns a proposed landfill expansion: "The landfill is asking the board for a special exception to allow it to expand from 120 acres to 320 acres, which could keep it in operation for another half century." More:

Few people realize "how big an expansion this would be," John Zakelj said after the meeting. He, Wendy Carpenter and other opponents believe the proposed expansion could make the landfill one of the largest in the state.

To demonstrate the expansion, Charles Cantrell created a science-fair-like display on a 10-inch-tall, 5-feet-long foam board. It super-imposes a 165-feet-tall landfill running from the four-way stop on the north side of Farmland to the intersection of Ind. 32 and Ind. 1 south of Farmland. The superimposed landfill is nearly 50 feet taller than the 118-foot-tall grain elevator in downtown Farmland. * * *

Randolph County Commissioners and the mayors of Winchester and Union City are among the supporters of the expansion.

According to opponents, only 6 percent of the trash arriving at the landfill in 2003 came from Randolph County. About 1,000 tons a day of municipal solid waste are dumped in the landfill from Delaware, Madison, Jay, Randolph, Wayne and Henry counties in Indiana and from Darke and Miami counties in Ohio.

Clean Air Act. Two stories, both from the Louisville Courier Journal. The first, available here, is headlined "Cinergy challenges Louisville legal filing: Utility calls attempt to join pollution suit unnecessary." Some quotes:

In a federal court filing, Cinergy Corp. argues that the Louisville Metro Air Pollution Control District should not be allowed to join the federal government and several states in a lawsuit over the company's power-plant pollution.

The company called the district's request to join the lawsuit to curb emissions from its Gallagher power plant in New Albany "untimely" and unnecessary.

In a memorandum recently filed in U.S. District Court in Indianapolis, Cinergy lawyers also claim that the district has failed to show that it can't trust the federal agencies already involved to adequately represent its interests.

Further, lawyers for the Cincinnati-based company said the district "appears to be primarily motivated by the desire to obtain additional emissions reductions to replace those lost when Louisville impermissibly terminated its Vehicle Emissions Testing program."

An editorial today in the Courier Journal commends the Louisville mayor's "proposed initiative to lower the alarmingly high levels of toxic pollutants in Louisville's air," which was mentioned in this ILB entry yesterday.

Posted by Marcia Oddi on Wednesday, May 26, 2004
Posted to Environmental Issues

Indiana Decisions - One 7th Circuit posting today

In USA v. PARKER, TRACY L. (CD Ill.) the panel affirms Parker's conviction, in an opinion written by Chief Judge Flaum.

Posted by Marcia Oddi on Wednesday, May 26, 2004
Posted to Indiana Decisions

Indiana Law - Muncie bans confederate flags from campground

A story in the Muncie StarPress from Sunday, May 23rd titled "City bans Confederate flags from reservoir campground," has provoked national interest. I was advised of it this morning via a note from an Indiana attorney stationed in Washington:

As a practicing Indiana attorney in Washington, DC, I rely on your blog to keep me up to date with Indiana happenings. I enjoy reading it every day.

This morning I came across an interesting post on volokh.com about the controversy in Muncie regarding the mayor's decision to ban confederate flags and firearms from public campgrounds. Prof. Volokh apparently spoke to the mayor and his post discusses his view of the constitutionality of the mayor's decision. It's an interesting read.

Andrew I. Warden, Trial Attorney
U.S. Department of Justice, Civil Division

Here are Eugene Volokh's comments. Volokh teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy at UCLA Law School.

Since the initial story last Sunday, the StarPress has run two other stories: "ICLU questions legality of flag restrictions," from May 24th and "Mayor plans major changes at reservoir's campground," published today, May 26th. Some quotes:

MUNCIE - The Confederate battle flag controversy at Prairie Creek Reservoir's campground has convinced Mayor Dan Canan of the need to make major changes in the operation of the campground. "What all of this has brought to my attention is we as a city have created an environment at the campgrounds that is really not a campground," Canan said. "We've gone from campers renting camp sites to a trailer park. Instead of having campers who rent, we have campers who think they're homeowners and they own the property. I blame the city. It falls on my shoulders." * * *

Long-time camper Tom Wallace, known as "the mayor" of the campground, said the mayor's plan would significantly decrease park revenue. Wallace filed a complaint Tuesday with the Indiana Civil Liberties Union accusing the mayor of violating his rights to free speech. The mayor recently ordered campers to remove all but American and POW-MIA flags from the campground. Wallace, a native of Hazard, Ky., had flown a Confederate battle flag at the campground for years.

Wallace is now challenging the mayor, who won't return his phone calls, to a televised debate. "The mayor has opened a can of worms that he doesn't have a lid to put on," Wallace said. "If the ICLU says I don't have a case, I'll go to the governor. If he says I don't have a case, I'll take it to the Supreme Court."

Wallace flew the Confederate battle flag at the campground because he comes from the South, he lives on the south side of Muncie, and his three daughters graduated from Southside High School, which used the Confederate flag as a school symbol in the 1960s."This has nothing to do with prejudice," said Wallace.

[Update 5/27/04] Today's Muncie StarPress story quotes Professor Volokh. The lead:
MUNCIE - A UCLA Law School professor says the city of Muncie's rules for the campground at Prairie Creek Reservoir violate two Constitutional rights - the right to bear arms and the right to free speech.

Posted by Marcia Oddi on Wednesday, May 26, 2004
Posted to Indiana Law

Law - Rehnquist creates judicial ethics panel

As reported today in many papers, Chief Justice William H. Rehnquist has named a high-level panel to investigate the federal courts' handling of judicial misconduct. According to the Washington Post story:

Justice Stephen G. Breyer will chair the six-member panel, according to a statement published this week in the newsletter of the federal courts. The committee will hold its first meeting next month in Washington.

"There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act of 1980 is being implemented, and I decided that the best way to see if there are any real problems is to have a committee look into it," Rehnquist said in the statement. * * *

The act of Congress cited by Rehnquist defines judicial misconduct and articulates the standards for judges to use when deciding whether to recuse themselves from a case in which they, a spouse or a child might have, or be seen as having, an interest. That can include a financial interest or membership on a board involved in the case. The act applies to lower federal courts and does not mention the Supreme Court. * * *

In addition to Breyer, the other five members are: Judge J. Harvie Wilkinson III, former chief judge of the U.S. Court of Appeals for the 4th Circuit, based in Richmond; Judge Pasco M. Bowman II, former chief judge of the U.S. Court of Appeals for the 8th Circuit, based in St. Louis; Judge D. Brock Hornby, former chief judge of the U.S. District Court for the District of Maine; Judge Sarah Evans Barker, former chief judge of the U.S. District Court for the Southern District of Indiana; and Sally M. Rider, the chief justice's administrative assistant.

Rehnquist's statement gave little information about the committee's mission, which is "to evaluate how the federal judicial system is dealing with judicial misbehavior and disability."

Here is the Indianapolis Star coverage, which leads with: "U.S. District Judge Sarah Evans Barker of Indiana has been named to a panel to study federal judicial ethics."

Posted by Marcia Oddi on Wednesday, May 26, 2004
Posted to General Law Related

Economic Development - Shipping iron ore to China

NPR had a promo this morning for a story to be broadcast this afternoon about China's booming economy and how Minnesota is shipping iron ore to China. Of course, this ties together our recent entry titled "China moves rapidly forward, voraciously consuming raw materials" and our continuing series (type "iron nuggets" in the search box - no quotes) on whether Minnesota iron ore will be shipped to an iron nuggets plant to be built either in Indiana or in Minnesota.

When the NPR story is available online this evening, I will add the link here.

Here it is: Minnesota Iron Mine Benefits from China's Boom. "An idled Minnesota mine has been re-opened under a new partnership with a Chinese steel company and is now exporting iron ore to China. The new business has been a boon for the residents of the small mining town of Eveleth, Minnesota, which has suffered economically for decades."

Posted by Marcia Oddi on Wednesday, May 26, 2004
Posted to Environmental Issues

Tuesday, May 25, 2004

Economic Development - A different take on the CSX buyout story

This Indiana Law Blog entry from May 20 reported on the effort of farmers in LaPorte County to acquire a 56-mile stretch of CSX rail used to transport crops; the line is slated for closure.

However, apparently not all farmer are behind the project. A story today in the LaPorte County Herald Argus is titled "Area farmers criticize plan to save CSX rail line."

Posted by Marcia Oddi on Tuesday, May 25, 2004
Posted to Indiana economic development

Indiana Decisions - Three Court of Appeals Decisions Posted Today

Mark Murfitt v. Vickie Murfitt (4/15/04 IndCtApp) [Family Law; Constitutional Law]
Sullivan, Judge

Mark Murfitt appeals pro se from the trial courts order distributing the marital property following the trial courts granting of Marks wifes petition for dissolution of marriage. He presents three issues for our review, two of which we consolidate into the sole issue addressed in this decision: whether the trial court erred in denying Mark alternative methods, including the appointment of counsel, to represent his interests at trial. We reverse and remand. * * *

On May 29, 2001, the day that Vickie filed her petition for dissolution of marriage, Mark was incarcerated. * * * Mark subsequently filed a motion requesting alternative hearing methods so that he could take part in the hearing. * * *

Upon appeal, Mark claims that the trial court should have granted the motion for alternative means for conducting a hearing so that he could take part and defend his interests. In his motion, Mark noted that the trial court could not secure Marks attendance at or transportation to a civil action unrelated to the case resulting in the incarceration. [cites omitted] In that same motion, Mark also noted some alternative means by which the hearing could be conducted, including: (1) a telephonic conference, (2) securing someone else to represent him, (3) postponing the hearing until he was released, or (4) submitting the case to the court by documentary evidence.

This court has noted on several occasions the constitutional right of a prisoner to bring a civil action as provided by Article 1, Section 12 of the Indiana Constitution. * * * As stated in [Zimmerman v. Hanks], some means must exist by which an individual may prosecute his claim while still incarcerated; otherwise, that individual would be denied the constitutional right to bring a civil action. A trial court should not be able to deprive a prisoner of his constitutional right to maintain a civil action by denying motions that the court can properly deny while concurrently ignoring the prisoners requests for other methods that would allow the prisoner to prosecute from prison. There is no reason to believe that Mark could not himself take part in this action through one of the alternative methods while he is incarcerated. He has shown remarkable skill and clarity in drafting his motions and in writing his brief. Nonetheless, we reserve the decision as to how the new hearing should be conducted for the trial court. Upon remand, the trial court should determine what manner of hearing is most appropriate and feasible and whether Mark is entitled to counsel. The judgment of the trial court is reversed and the cause remanded for new proceedings not inconsistent with this decision.
ROBB, J., and RATLIFF, Sr.J., concur.

Derrick L. Jenkins v. State of Indiana (5/25/04 IndCtApp) [Criminal Law & Procedure]

Indiana Association of Beverage Retailers, et al. v. Indiana Alcohol and Tobacco Commission, et al. (5/25/04 IndCtApp) [Administrative Law]
Baker, Judge

Here the Indiana Association of Beverage Retailers, Inc. (IABR) appeals the trial courts dismissal of its petition for judicial review of the Indiana Alcohol and Tobacco Commissions (ATC) order granting Thornton Oil Corporations (Thornton) application for a beer and wine permit.

Thus, IABR seeks a reversal and remand of the trial courts order for a determination on the merits whether ATCs decision to grant Thorntons application must be set aside. Concluding that IABR did, indeed, have standing in this case, we reverse the order of dismissal and remand with instructions that the trial court consider the propriety of ATCs decision to grant Throntons application.

IABR is a non-profit association whose membership is comprised of retail package liquor stores. Thornton is the owner of a gas station and convenience store in Lawrence that has been in business for more than five years. Thornton also operates thirteen similar stores in other Indiana locations that hold alcoholic beverage permits.

On January 9, 2001, Thornton filed its application for a beer and wine permit so that it could compete on a level playing field with other convenience grocery stores that sell alcoholic beverages. Thereafter, the Marion County Local Board (Local Board) investigated the application, and a hearing was held on August 6, 2001. IABR remonstrated against Thorntons application, arguing lack of desire or need for the permit and maintained that the permit should be denied because Thornton did not operate a pharmacy or grocery store.

Although the Local Board denied the permit, the ATC reversed and granted Thorntons application for the alcohol permit IABR filed its verified petition for judicial review with the trial court. In the end, the trial court dismissed the case and ruled that IABR had failed to demonstrate that it had standing on its own to bring suit. Further, it said IABRs membership, as competitors of Thornton Oil Corporation also lacked standing to object to the granting of an alcohol permit. The Court here states:
Unlike the provisions of the AOPA, it is apparent that there was only one class of persons entitled to standing under the AAA. With the enactment of the AOPA, however, the statute with regard to standing has been clarified and expanded to include the appropriate categories that had previously been omitted.
After referencing a number of decisions, the Court states:
In light of the above, it is apparent to us that the cases relied upon by the trial court in dismissing IABRs petition for judicial review and those cited by the ATC are distinguishable from the circumstances here and do not provide authority for the trial courts order denying IABR standing to obtain judicial review of the order. Moreover, we note that in accordance with 905 I.A.C. 1-36-2(a), a remonstrator is entitled to notice of the Local Board or ATCs decision to grant or deny an application for an alcoholic beverage permit. Further, a remonstrator is entitled to participate in appeals to the ATC from a local board decision. 905 I.A.C. 1-36-3(b).

Finally, we note that IABR has cited to this courts opinion in Huffman v. Dept. of Envtl. Mgmt., 788 N.E.2d 505, 509 (Ind. Ct. App. 2003), for the proposition that the judicial doctrine of standing applies to lawsuits filed in a trial court and to matters not covered by the AOPA. * * * IABR acknowledges in its reply brief that our supreme court has recently granted transfer in Huffman. To date, no opinion has been issued. We note, however, that even if the supreme court determines that Huffmans petition was properly dismissed because of the lack of standing, we do not find that the circumstances in that case should control the outcome here. * * * That said, we do not find the Huffman rationale controlling here, and we thus conclude, in light of our discussion above, that the trial court erred in dismissing IABRs petition for judicial review.
Reversed and remanded to the trial court for a determination of whether the ATCs decision to grant Thorntons application on contravention of the Local Boards recommendation should be set aside.
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi on Tuesday, May 25, 2004
Posted to Indiana Decisions

Indiana Decisions - Five Supreme Court decisions posted today

The Supreme Court issued a number of significant death penalty decisions today:

Benjamin Ritchie v. State of Indiana (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Boehm, Justice

Christopher M. Helsey v. State of Indiana (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice

Phillip A. Stroud v. State of Indiana (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice

State of Indiana v. Charles E. Barker (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice

State of Indiana v. Chijoike Bomani Ben-Yisrayl (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice

[Update 5/26/04] The Indianapolis Star has a brief item this morning on the last two opinions listed above -- Charles E. Barker and Chijoike Bomani Ben-Yisrayl. Some quotes:

Last year, Marion Superior Judge Grant W. Hawkins ruled that prosecutors couldn't seek the death penalty against convicted killers Charles E. Barker and Chijoike Bomani Ben-Yisrayl, then known as Greagree Davis. This was the second time Hawkins ruled the death penalty unconstitutional, and Tuesday marked the second time the Supreme Court has reversed him.
WNDU-TV has a brief story on the Philip Stroud decision, including:
The Indiana Supreme Court today vacated Strouds death sentence. The court ruled the jury was given conflicting instructions during the penalty phase of Strouds trial. The ruling sends the case back to the trial court judge for re-sentencing. Nonetheless, Strouds murder and burglary convictions were upheld by the high court.
The Indianapolis Star had a very brief story about the Benjamin Ritchie ruling:
Convicted cop-killer Benjamin Ritchie will stay on Death Row after the Indiana Supreme Court rejected his appeal Tuesday. Ritchie was sentenced to death in October 2002 for the shooting death of Beech Grove police officer William Toney. On appeal, Ritchie's attorneys unsuccessfully argued on 10 issues -- including that the death penalty is cruel and unusual punishment.
Finally, referencing both the Darnell Williams decision last week (see this entry) and the Ben-Yisrayl decision (above), the Munster Times has an editorial today urging Indiana "to take another look at how it is administered in the state, following the example set by Illinois."

Posted by Marcia Oddi on Tuesday, May 25, 2004
Posted to Indiana Decisions

Environment - A number of stories today

I've read a number of interesting enviromental stories today, some of national import, and some of state or local interest.

Asbestos. This story, titled "Cheaper Way to Raze Dilapidated Motel Prompts Concern," is from the NY Times. Some quotes:

WASHINGTON, May 24 - Sometime this summer, the city of Fort Worth wants to demolish the asbestos-ridden Cowtown Inn, an abandoned motel that closed 15 years ago and now attracts drug dealers, prostitutes and homeless people.

Using a novel method of demolition, workers plan to soak the interior of the building with water to keep asbestos fibers from spreading. Local officials, with some support from E.P.A. officials in Texas, say that this technique could save cities around the country millions of dollars in their efforts to clear out urban blight. Under federal regulations, materials with asbestos must be painstakingly removed before a building is razed.

But E.P.A. scientists, as well as independent outsiders hired by the agency to reach their own judgments, have raised major objections, saying that the wetting technique poses health risks that have been neither adequately studied nor conveyed to people who live and work near the motel.

Air Toxics. This story, titled "Abramson proposes toxic air program: Raising polluters' fees is part of $702,000 plan," is from the Louisville Courier Journal. Some quotes:
The mayor said metro government will unveil the new program this summer. [Art Williams, director of the air pollution control district] has said it will go beyond the federal minimum requirements for controlling hazardous air pollutants, a special category identified in the Clean Air Act. Yesterday, metro officials sketched out for the first time what they have in mind. The program will target all 18 chemicals identified in last year's risk assessment, and it will include new "emissions standards." Williams declined to identify those standards or explain how they might work.

The mayor said the program would focus on three areas: Helping companies change their processes over time to reduce toxic emissions. Working with companies that want to expand on avoiding increased emission levels. Making sure that companies moving to Louisville comply with new emission standards.

Sewer bans. This story, also from the Courier Journal, that begins:
New Albany officials hope they will soon be able to loosen the state and federal restrictions on new connections to the city's sewage system restrictions that have slowed economic development since last year. As a way of increasing the system's capacity, city officials are proposing to use sewage storage tanks that were built at the treatment plant about 1994 but taken out of use after a few months because of strong odors associated with them.
Uncontrolled stormwater runoff. This story from the Gary Post Tribune about Chestertons Town Council meeting Monday. This part caught my eye:
Jim Kowalski, a former member of the board of zoning appeals, told the council he had concerns about construction on CR1050 North. It looks terrible out there, Kowalski said. The developer has not attempted to put up any silt fences, he said. With all this rain, everything is dumping into the storm sewer. And were going to start having problems.

Building Commissioner Mike Orlich said that he had been writing tickets for silt-fence violations. Orlich said he may return to the board with a proposal to amend the towns ordinance on silt fencing.

Natural Resources. Complete with photo, this story today in the Chesterton Tribune is about "a print of a painting of 'Howlin Hill,' a large turret dune destroyed 40-some years ago for the development of the Port of Indiana." Some quotes:
It was Herb Reads favorite place in the Indiana Dunes. Towering 150 feet above lake level, the huge mound of sand known as a turret dune was in a blowout the size of 68 football fields. It stood in a tree graveyard, where 5,000 or so years ago a white pine forest stood before it was buried in sand. It was a dramatic place, with no other place in the Indiana Dunes -- then or now -- like this place, which was known as Howlin Hill. It was not the highest dune, but it was certainly the most spectacular, Read said. * * *

Though Howlin Hills is long gone -- it was located about in the center of what is now the Port of Indiana -- its image has been preserved in perpetuity, thanks to Reads camera and the artistry of Beverly Shores painter David Tutwiler. * * * Read said he wants people to think about three things when they see the work: First, to recognize that beautiful and unique dunes like Howlin Hill have been destroyed, representing a lesson of what can happen to natural lands; second, to have a greater appreciation for what has been saved in the Indiana Dunes National Lakeshore and Dunes State Park; and third, to resolve, as he has done, to extend protections to the dunes that still exist outside the parks.

Posted by Marcia Oddi on Tuesday, May 25, 2004
Posted to Environmental Issues

Indiana Law - Local law firm benefits from Cincinnati's riverfront development

"Lawyers hit stadium pay dirt: Private attorneys land windfall of public money," was the headline to this story yesterday in the Cincinnati Enquirer. Some quotes:

Eight law firms have been paid almost $7 million since the county first decided to replace Cinergy Field with separate riverfront stadiums for the Cincinnati Bengals and Cincinnati Reds. * * *

County officials say the money has been well spent on law firms that have negotiated and monitored a tangle of agreements with the sports teams, riverfront landowners, construction companies and the city of Cincinnati. But Auditor Dusty Rhodes, a frequent critic of county spending, says it's time to call an end to the game. The county administration, he says, has grown too dependent on private attorneys for work that the prosecutor's office could do or that doesn't require lawyers. * * *

The prosecutor's office represents county officeholders. It has about two dozen lawyers who handle civil matters on a $4.5 million annual budget. When the prosecutor's office concludes it doesn't have the expertise or time to handle certain complex cases, it recommends that commissioners hire private legal counsel. That can be an expensive decision: county attorneys make an average of $37.61 an hour, versus rates of $200-plus an hour for private lawyers.

Re the possibility of taking bids for the legal work:
"Legal work generally isn't bid for the same reason you wouldn't take bids if you needed surgery - you'd want the best person for the job," said Carl Stich, chief of the prosecutor's civil division.
Re the costs of the legal work:
The $6.8 million spent on riverfront-related legal work from the mid-1990s through 2003 amounts to less than 1 percent of the $750 million bill for the two stadiums. Almost two-thirds of the stadium and riverfront work - $4.3 million - has gone to Vorys Sater Seymour and Pease, a downtown Cincinnati law firm. * * * The Indianapolis-based law firm of Ice Miller has run up the second-steepest legal tab * * *. The county has paid Ice Miller $1.2 million over three years.
Link via Ed Feigenbaum's Indiana Daily Insight.

Posted by Marcia Oddi on Tuesday, May 25, 2004
Posted to Indiana Law

Monday, May 24, 2004

Law - Beef and pork checkoffs to be reviewed by Supreme Court

From the Omaha World-Herald last Saturday, May 22nd:

The U.S. Supreme Court could decide as early as Monday whether it will hear arguments defending the constitutionality of the beef and pork checkoffs. The two checkoffs, which use money from livestock sales for ad promotions, have each been ruled unconstitutional in separate appeals courts. * * *

The Eighth U.S. Circuit Court of Appeals had ruled in a South Dakota case that livestock producers should not have to be required to help fund the advertising campaign. * * * Last October, the Sixth U.S. Circuit Court of Appeals upheld an earlier ruling to end the mandatory pork checkoff program. The U.S. Department of Agriculture appealed the decision. In both cases, judges rejected the argument that the checkoffs are tantamount to government speech and therefore not subject to the First Amendment.

"Pork: the other white meat" and "Beef: It's what's for dinner," are examples of the ad campaigns paid for by the checkoff programs. The "Got milk?" dairy promotion was ruled unconstitutional by the 3rd Circuit earlier this year. Here is AP coverage from earlier today:
For nearly 20 years beef producers have had to pay fees that are used to promote the industry, but lower courts have ruled that the beef programs -- and others like them -- violate the First Amendment guarantee of free speech.

Opponents of such fees contend that the mandatory fees infringed on their free speech rights because they are forced to pay for some marketing campaigns with which they don't agree.

Justices will hear arguments this fall in the Bush administration appeal. Solicitor General Theodore Olson said a lower court ruling against the government ended successful public relations campaigns and important research and public education on mad cow disease. * * *

The case forces the court to return to a question it has visited before: Do mandatory government advertising programs violate the free-speech rights of producers who disagree with how the money is spent?

In 2001, the court ruled that a mandatory campaign for the mushroom industry violated the First Amendment. But justices have allowed joint advertisements in heavily regulated industries such as California fruit production.

For earlier Indiana Law Blog entries, see this one from 3/29/04, this one from 2/24/04, and this one from 11/1/03.

Posted by Marcia Oddi on Monday, May 24, 2004
Posted to General Law Related

Indiana Decisions - Supreme Court posts order denying rehearing in Darnell Williams case

Darnell Williams v. State of Indiana. This order, issued 5/21/04, is signed by Chief Justice Shepard. Dickson, Sullivan and Rucker, JJ., concur. Boehm, J., concurs in result with separate opinion.

The Court's order was reported in an AP story Friday (5/21/04) published in the Munster Times. A quote:

The Indiana Supreme Court on Friday set a new execution date for Darnell Williams, saying DNA tests in his case were inconclusive and did not undermine "other overwhelming evidence" of his guilt in the shooting deaths of a Lake County couple.
A number of other papers - Indianapolis, Fort Wayne, Chicago Tribune, carried the same AP story.

[Update 5/25/04] This editorial today in the Indianapolis Star begins:

The Indiana Supreme Court's decision to dismiss DNA test results in the Darnell Williams death penalty case is disturbing. In setting an execution date of July 9, the court found little value in DNA tests of blood samples found on Williams' shorts after he was arrested for the 1986 murders of Gary residents John and Henrietta Rease.

Posted by Marcia Oddi on Monday, May 24, 2004
Posted to Indiana Decisions

Indiana Decisions - Six Court of Appeals opinions posted today

Robert Miller v. St. Joseph Co. Area Board of Zoning Appeals, et al. (5/24/04 IndCtApp) [Planning & Zoning]
Sullivan, Judge

While the adage good fences make good neighbors is routinely heard in disputes between adjoining property owners, the phrase good trees make good neighbors better describes the facts in this case. Robert L. Miller, Sr. (Miller) appeals from the trial courts dismissal of his petition to review the decision of the St. Joseph County Area Board of Zoning Appeals (the Board) which granted a variance to Michael Garatoni (Garatoni) to build an addition to the child care center which he owned. We restate the issues which Miller has presented for our review as whether the trial court erred in dismissing his petition for review because Miller filed it outside of the required time period. We affirm. * * *

Indiana Code 36-7-4-1003 authorizes a party aggrieved by a decision of the board of zoning appeals to file a verified petition with a court in the county where the affected premises are located alleging that the decision is illegal. It further provides that the petition must be filed with the court within thirty days after the date of the decision of the board of zoning appeals.

In seeking review of the decision of the Board, Miller filed his petition on March 7, 2003. The original decision of the Board granting the variance with conditions was made on December 4, 2002. The revised order of the Board granting the variance was made at the February 5, 2003 hearing. Because Miller did not file his challenge of the original order of the Board with the court within thirty days as required, his challenges to the first order cannot be considered. See Biggs v. Bd. of Zoning Appeals of City of Wabash, 448 N.E.2d 693, 694 (Ind. Ct. App. 1983) (failure to comply with the statute is fatal), trans. denied.

It is with this knowledge that Miller has argued that the second order issued by the Board made substantive changes to the first order. As a result, he asserts that the trial court may review his petition because his challenge was brought within the required time frame. While we acknowledge that the addition of some language in the second order appears to make substantive changes to the first order and thus was not correction of clerical errors, the majority of Millers claims are not reviewable because any changes made to the second order did not address the issues which Miller now presents. * * * The judgment of the trial court dismissing the petition for review is affirmed.
ROBB, J., and HOFFMAN, Sr.J., concur.

Dayton Evans v. State of Indiana (5/24/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Appellant, Dayton Evans, challenges the post-conviction courts denial of his petition for post-conviction relief. Upon appeal, Evans presents three issues for our review: (1) whether the post-conviction court abused its discretion by denying Evans a continuance so that he could hire an attorney to represent him during the post-conviction proceedings, (2) whether the post-conviction court abused its discretion in denying Evanss petition for post-conviction relief, and (3) whether the post-conviction court abused its discretion by failing to assist and advise Evans on how to present his case. We affirm. * * *

[With regard to issue 3:] Finally, Evans argues that the post-conviction court erred in failing to advise him of the rules and repercussions during the hearing on his pro se petition. Specifically, Evans asserts that during the hearing the post-conviction court should have advised and assisted him as to the filing of exhibits or any other type of evidence which may have supported his claims. Evans admits that there are no cases to support his claim but asks us to consider this case as a matter of first impression.

Pro se litigants without legal training are held to the same standard as trained counsel and are required to follow procedural rules. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). This has consistently been the standard applied to pro se litigants, and the courts of this State have never held that a trial court is required to guide pro se litigants through the judicial system. We decline Evanss invitation to impose a duty upon courts to assist and advise pro se litigants in the presentation of their case. The judgment of the post-conviction court is affirmed.
ROBB, J., and ROBERTSON, Sr.J., concur.

Charles Stamper v. State of Indiana (5/24/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Appellant, Charles Stamper, pleaded guilty to Receiving Stolen Property as a Class D felony. Upon appeal, Stamper claims, and the State agrees, that the trial court erred in denying Stampers request for counsel to represent him at his sentencing hearing. We reverse and remand. * * *

ROBB, J., and ROBERTSON, Sr.J., concur.

Rollin Phillips v. State of Indiana (5/24/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Following a jury trial, Appellant Rollin M. Phillips, Jr. was convicted of two counts of Dealing in a Controlled Substance (Methamphetamine) as a Class B felony and one count of Dealing in Marijuana as a Class A misdemeanor. Upon appeal, Phillips presents three issues for our review, one of which we find dispositive: whether the trial court erred in denying Phillipss request to use peremptory challenges on two veniremen after Phillips had indicated that he was passing the jury to the State but before hearing the States voir dire of these veniremen. We reverse and remand. * * *

The trial court may very well wish to prevent parties from waiting until the other side has used its voir dire time to exercise its peremptory challenges. This, however, goes against the rule as stated in Fox [Fox v. State - Ind CtApp 1999] that a trial court may not require a party to strike or accept the prospective jurors without having had the opportunity to consider the other partys voir dire. Both the trial court and the State focus on the fact that Phillips passed the jury after the seating of the three veniremen who replaced those peremptorily excused by Phillips. The trial court interpreted Phillipss passing of the jury to mean that he accepted the jury as then seated. However, the State had not yet voir dired the newly-seated veniremen, and Phillips had the right to listen to the States voir dire before exercising his peremptory challenges. We therefore conclude that the trial court erred in so restricting Phillipss exercise of his peremptory challenges. * * * Our holding requires reversal of Phillipss convictions and remand for a new trial. * * *
ROBB, J., and HOFFMAN, Sr.J., concur.

Terry Harper, et al. v. Karen Boyce (5/24/04 IndCtApp) [Wills, Trusts & Estates]
Sullivan, Judge

Terry Harper and his daughters, Angelica Dawn and Heidi, (collectively the Harpers) appeal from the dismissal of their action to contest the will of Terrys mother, Jessie Harper, following a petition to the trial court requesting that Karen Boyce, Terrys sister, be allowed to proceed as personal representative of the estate (Estate). * * * The order of the trial court dismissing the will contest is affirmed.
ROBB, J., and GARRARD, Sr.J., concur.
Larry Lollar v. Michelle Hammes (5/24/04 IndCtApp) [Family Law]
Sullivan, Judge
Appellant, Larry Lollar (Father), challenges the trial courts dismissal of his petition for custody of his minor child, L.H. Father presents three issues for our review, one of which we find dispositive, whether Michelle Hammes (Mother) consented to the courts exercise of jurisdiction to decide the matter of custody of L.H. We reverse. * * *

Here, Mother received a copy of the courts order providing for custody of L.H., but did nothing for five months, and then only after Father filed his petition for emergency custody. Mother did not contest the courts jurisdiction until nearly nine months after the court issued the order providing for custody, visitation, and support of L.H. In the meantime, Mother accepted the benefits of the courts order. Thus, even if the UCCJL did not confer jurisdiction upon the Indiana court to make determinations as to custody matters involving L.H., Mother did not timely object to the courts assumption of jurisdiction. See Foor v. Town of Hebron, 742 N.E.2d 545 (Ind. Ct. App. 2001) (holding that jurisdictional challenge was waived when party failed to raise issue at earliest opportunity possible). Because Mother accepted the benefits of the courts order as to the initial custody determination and did nothing to challenge the courts jurisdiction until a custody order contrary to her wishes was entered, Mother is estopped from objecting to the Indiana courts jurisdiction to decide custody matters concerning L.H. Therefore, we conclude that the trial court erred in dismissing Fathers petition. The judgment of the trial court is reversed and the cause remanded for further proceedings.
ROBB, J., and GARRARD, Sr.J., concur.

Posted by Marcia Oddi on Monday, May 24, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit opinions posted today


LAWSON, MEGAN v. HILL, CURTIS (ND Ind., Judge Sharp)

Before CUDAHY, POSNER, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The district judge dismissed this suit to enjoin, under 42 U.S.C. 1983, the prosecution of the plaintiff under Indianas flag-desecration statute. The statute provides that a person who knowingly or intentionally mutilates, defaces, burns, or tramples any United States flag, standard, or ensign commits flag desecration, a Class A misdemeanor, Ind. Code 35-45-1-4(a), for which the maximum punishment is a year in prison and a $5,000 fine. 35-50-3-2. The judge ruled that the plaintiff lacked standing under Article III and that anyway it would violate comity to enjoin a public official on the ground on which the injunction was sought.
The Court here affirms, in a 9-page opinion.

MCKINNIE, FESTUS M. v. BARNHART, JO ANNE B., COMM. SOCIAL SEC. (ND Ind., Magistrate Judge Rodovich) SSI Claim. Vacated and remanded, but only for a factual determination.

XCO INT'L INC v. PACIFIC SCIENTIFIC (ND Ill.) Writing for a panel including Judges Flaum and Williams, Judge Posner begins:

The appeal in this diversity breach of contract suit governed mainly by Illinois law presents issues involving the enforceability of a liquidated damages clause (found by the district judge to be a penalty), contract interpretation, patent law, and sanctions for making frivolous claims.
The opinion includes extensive discussion of liquidated damages and penalty clauses.

Posted by Marcia Oddi on Monday, May 24, 2004
Posted to Indiana Decisions

Law - Interstate wine sales ban to be reviewed by U.S. Supreme Court

The Court acted today to grant certiorari in the cases of Granholm v. Heald, Michigan Beer & Wine Wholesalers v. Heald, and Swedenburg v. Kelly. Here is AP coverage from the Washington Post site. A quote:

Michigan requires out-of-state producers to sell alcohol only through licensed wholesalers or vendors. Wine reviewers Ray and Eleanor Heald of Troy, Mich., sued in an effort to get direct shipments from out-of-state wineries, and won their case before the 6th U.S. Circuit Court of Appeals last year. The appeals court cited the Commerce Clause in ruling Michigan's law unconstitutional.

Attorneys general from 36 states signed a friend-of-the-court brief supporting Michigan in its Supreme Court appeal. [Note that Indiana's Attorney General was among the signers.] The high court should address the confusion from a patchwork of court rulings and regulations, the states said.

"Moreover, the recent proliferation of small-production wineries, whose sole marketing and sales agenda is direct shipment with sales made over the Internet, means that this area of regulation is increasingly important, both to the states from a police power perspective and to wineries and consumers," the state lawyers wrote.

Although the Michigan case and a companion ruling from New York govern only wine sales. industry groups representing distributors for beer and other kinds of alcohol also asked the high court to rule in favor of continued state regulation. The New York case involved independent wineries from outside that state that wanted to ship wine to New York consumers. A federal appeals court ruled for the state earlier this year.

David Savage of the LA Times had a very good review of the issues in this piece published May 15th.

The Indiana Law Blog has had a number of entries on this question, with links to the cases. As you can read in these entries, Indiana's ban was the first case reviewed by a Court of Appeals; the 7th Circuit upheld Indiana's ban in its 9/13/00 opinion, Bridenbaugh v. Freeman-Wilson. An Indiana University Law-Bloomington professor, James A. Tanford, has been a leading litigator nationally challenging such bans.

Here are the earlier ILB entries: "Another Circuit Weighs in on the Interstate Sale of Wine" (2/12/04); "More on Interstate Wine Sales" (12/12/03); "Anti-wine-shipping lobby suffers blows" (8/29/03).

[Update 5/25/04] Here is Tony Mauro's writeup this morning in Legal Times. Here is Linda Greenhouse's column from the NY Times. And here are some quotes from a story from the Detroit Free Press:

Peninsula Cellars last year earned the unprecedented distinction of having its Riesling wine win best in the world in both white wine and Riesling competitions. The award was international, but Peninsula could sell its wine only to customers in the state because Michigan law prohibits out-of-state-consumers from ordering the wine.

"We have a lot of people come here from Chicago, Ohio, etc., and they buy wine to take home, but when they try to order more for Christmas or something, we close the door in their face, which seems kind of rude," said Bryan Ulbrich, wine maker for the 9-year-old winery on the Old Mission Peninsula near Traverse City.

That law -- and similar laws in 25 other states -- are about to be reviewed by the highest court in the land. * * *

The issue pits states and a powerful network of alcohol distributors against independent wineries that want to sell their products directly to consumers regardless of where they live. Many of these wineries are too small to have their products carried by big distributors. "We just want a level playing field that lets us compete with the big wine makers," Ulbrich said.

At issue are conflicting laws governing the regulation of alcohol versus laws governing interstate commerce. The 21st Amendment to the U.S. Constitution, which repealed Prohibition in 1933, gave states authority over the regulation of alcohol. The Constitution also gives the federal government the authority to regulate commerce across state lines.

Posted by Marcia Oddi on Monday, May 24, 2004
Posted to General Law Related

Law - U.S. Supreme Court grants cert in interstate wine and "got beef?" cases

Both affect Indiana. More coming later, but for now see this entry from SCOTUSBlog. com.

Posted by Marcia Oddi on Monday, May 24, 2004
Posted to General Law Related

Sunday, May 23, 2004

Indiana Law - Indianapolis Star editorializes against gerrymandering

The Indianapolis Star has an editorial today headlined "Blame gerrymandering for lack of competitive political races." It points out that "only a dozen of 100 state House races on the ballot this November are considered to be truly competitive. The figures aren't any cheerier in the Senate, where 25 seats are officially on the ballot but Republicans are certain to maintain control." More:

Blame the problem for the most part on gerrymandering, the practice of drawing legislative maps so that one party is given significant advantage over another in terms of the demographic makeup of districts. Gerrymandering makes it nearly impossible for a Democrat in a Republican district to win. And vice versa. * * *

Yet there are solutions, if legislative leaders from both major political parties had the courage and honesty to embrace them. New Jersey, for example, created a bipartisan commission to draw district maps. Iowa has established a nonpartisan commission. The result can be dramatic. In 2002, Iowa, with five U.S. House seats, had more competitive congressional races than California, which has 33 seats.

Voters in Marion County saw the principle in action last fall. A legal disagreement over boundaries in 25 City-County Council districts prompted the Indiana Supreme Court to draw its own map free of partisan interests. The result was a field full of strong candidates, close races in several districts and eventually a swing in control of the council from Republicans to Democrats for the first time.

Such change scares entrenched incumbents from both parties. But voters can demand that they be given true choices on Election Day by insisting that legislators put an end to gerrymandering.

Fair districts not only prompt more competition and higher turnout but also better government. Incumbents who actually have to work to win votes before Election Day are far more likely to listen and respond to constituents. In a nation built on the principle of democratic rule, 12 competitive races out of 100 isn't merely a sad number, it's shameful.

The NY Times had an editorial on Feb. 21st making the same point. It was headlined "Elections with no meaning." For quotes, see this Indiana Law Blog entry.

Late last month the U.S. Supreme Court issued its decision in the Pennsylvania redistricting case, Vieth v. Jubelirer, that may have all but closed the door on future court challenges to partisan gerrymandering. See Indiana Law Blog writeups here (4/29/04) and here (5/7/04).

The Indiana Supreme Court decision referred to in the Star editorial, where the Court itself redrew Marion County city-county council districts itself, is Peterson v. Borst (Ind.S.Ct. 3/19/03), which begins:

At issue in this appeal is the validity of the redistricting plan for the City-County Council of the City of Indianapolis and of Marion County, Indiana (Council), which was adopted in the final judgment of the Marion Superior Court, sitting en banc. We reverse because we conclude that the Superior Courts adoption of a plan that has been uniformly supported by one major political party and uniformly opposed by the other is incompatible with applicable principles of both the appearance and fact of judicial independence and neutrality. Because of the emergency nature of this appeal, we adopt a plan that we have drawn with the consideration of only factors required by applicable federal and State law, and without consideration of party affiliation or incumbency. This plan will be in effect for the May 6, 2003, primary election unless a different plan is adopted by ordinance prior to March 26, 2003.
(Note that our Supreme Court acted to draw the maps itself only because it appeared that no time remained for any other option.)

Something the Star does not point out in its editorial today is the difficulty of any change. As Vieth v. Jubelirer indicates, the courts are highly unlikely to act against political gerrymandering. This leaves the legistature as the only other alternative. But why would members or candidates with safe seats, such as the 88 out of 100 referenced by the Star, push for a diifferent system?

The Star says: "[V]oters can demand that they be given true choices on Election Day by insisting that legislators put an end to gerrymandering. Fair districts not only prompt more competition and higher turnout but also better government. Incumbents who actually have to work to win votes before Election Day are far more likely to listen and respond to constituents." But the Star does not explain how to get from here to there. The voters' ballots are their weapons, but carefully drawn districts have already made blunted any real possibility of putting the voters back in control of elections.

Posted by Marcia Oddi on Sunday, May 23, 2004
Posted to Indiana Law

Saturday, May 22, 2004

Not law but interesting - Concerns about computer-graded essays

Last Wednesday this article in the NY Times, headlined "Indiana Essays Being Graded by Computers," reported:

INDIANAPOLIS - In the computer lab at Warren Central High School in mid-May, Craig Butler, a junior, squinted at the question on his screen, paused to ponder his answer and began typing. Craig was one of 48,500 Indiana juniors gathering in high schools across the state to take the end-of-year online English essay test. Unlike most essay tests, however, this one is being graded not by a teacher but by a computer. * * *

Indiana is the first state to use a computer-scored English essay test in a statewide assessment, and its experience could influence testing decisions in other states. * * * With the increasing number of mandates to test student writing, "there's a certain inevitability to computerized essay grading," said Stan Jones, Indiana's commissioner of higher education. Indiana's computerized essay scoring, he said, will reduce by half the cost of administering a pencil-and-paper test and will free teachers from distributing, collecting and, above all, grading thousands of test booklets.

Moreover, automated grading will yield almost instant results, allowing teachers to provide immediate feedback to their students. It would take weeks or months to receive grades on a statewide pencil-and-paper test.

To dispel skepticism over computer scoring, student essays were simultaneously graded by a computer and trained readers during a two-year pilot program. Using artificial intelligence to mimic the grading process of human readers, the computer's automated scoring engine, known as e-rater, generated grades on a six-point scale that were virtually identical to those of the readers.

Still, skepticism abounds. Although English teachers at Warren Central applaud the computer's ability to evaluate spelling, punctuation, grammar and organization, Richard C. Reed, the department chairman, made it clear that "we are not 100 percent sold on the computer's ability to grade content."

Kathryn L. Allison, the English department chairwoman at North Central High School nearby, doubts that the computer can accurately assess the quality of grammatically correct and well-structured student essays that lack substance or are wrong on the facts. "Are kids going to be rewarded for having pedestrian-type answers?" she asked.

Today, May 22, the Times has two well-worth-reading Letters to the Editor commenting on the Indiana approach. Some quotes:
From Letter #1. Having computers grade essays based on correctness is as wrong-minded as evaluating paintings based on whether the artist stayed between the lines. An essay is not simply a series of grammatically correct sentences; it is a piece of writing composed with a particular audience people in mind, flavored with originality.

From Leter #2. Skepticism over claims that computers can effectively grade student essays is justified. Good writing is not merely a matter of style, or even just of communication. At heart, it is a matter of knowledge and of reasoning about ideas, the twin pillars of understanding.

Posted by Marcia Oddi on Saturday, May 22, 2004
Posted to General News

Not law but interesting - The twilight of the information middleman

Although I headed this "Not law but interesting," it actually is as relevant to the law as to the other topics mentioned. James Fallows had an opinion piece in last Sunday's NY Times Business Section (5/16/04) titled "The Twilight of the Information Middlemen." (Unfortunately, the Times article is nearly a week old already, so I'm sorry to say the article may already have gone to "pay-for-view" by the time you try to access it.)

The point of the article is the Internet's impact on information middlemen - those companies that, for instance, publish costly scientific journals composed of articles based on publicly funded research. Some conclusions from the article:

Taxpayer money still is behind a surprising amount of crucial data: nearly all weather observations and the supercomputer-based models that create forecasts; most basic scientific research; most research into disease causes and cures. In principle, this publicly financed knowledge has always been the public's property, but until a few years ago there was no easy way to get it from research centers to a wide audience. Thus various middlemen arose - notably scientific journals, which did the expensive work of printing and distributing research papers in return for steep subscription costs.

With the coming of the Internet, these intermediaries were no longer technically necessary - but, like the big music companies, they won't just fade away. So, on several governmental fronts, a quiet but intense struggle for survival is raging. Four years ago, as head of the National Institutes of Health, Dr. Harold Varmus proposed the creation of PubMed Central as a publicly accessible repository of medical research articles. Other "open access" scientific databases have been created, but they are meeting resistance from journals and authors who traditionally have held copyrights.

"It's in the authors' interest to provide open access, so their findings are disseminated," said Peter Suber, author of the Sparc Open Access Newsletter. "It's in the funders' interest, and the public's," but not in some of the journals'. He urges, among other changes, that Congress require research financed by the public to be openly available.

A SIMILAR battle involves, of all things, weather. In the pre-Internet era, the National Weather Service agreed with its middlemen, the commercial weather services, not to compete with them in certain products. Now, the Internet makes the vast range of the weather service's data available to anyone. In a recent study called "Fair Weather," the National Research Council urged that the service seize this new technological opportunity so that farmers, aviators, city officials and others affected by weather can have free access to information their tax dollars have paid for. Commercial companies, most notably AccuWeather, have been lobbying Congress for rules that would force the National Weather Service to close or restrict some of the excellent free sites it has already opened.

No matter how that battle turns out, the public will win the longer war. The Internet's impact on the value of information may still be in flux, but its long-term impact on middlemen is clear.

And yes, you can see that those publishers who have historically compiled and published court decisions and statutes could also fit in here. Now they only survive insofar as they add value. The source documents -- the cases, the statutes -- are becoming almost universally accessible.

Posted by Marcia Oddi on Saturday, May 22, 2004
Posted to General News

Friday, May 21, 2004

Environment - EPA Relied on Industry for Plywood Plant Pollution Rule

"EPA Relied on Industry for Plywood Plant Pollution Rule" is the headline to a very long story today in the LA Times. Some quotes:

Pushing aside new scientific studies of possible health risks, the Environmental Protection Agency approved an air pollution regulation this year that could save the wood products industry hundreds of millions of dollars.

In doing so, the agency relied on a risk assessment generated by a chemical industry-funded think tank, and a novel legal approach recommended by a timber industry lawyer. The regulation was ushered through the agency by senior officials with previous ties to the timber and chemical industries. * * *

"This rulemaking veers radically from standard scientific and regulatory practices," said David Michaels, an epidemiologist who was assistant Energy secretary for environment, safety and health in the Clinton administration. Others say it may violate the Clean Air Act.

The regulation addresses emissions of formaldehyde, a chemical used by plywood manufacturers and other industries. Exposure to formaldehyde may cause cancer and lead to nausea and eye, throat and skin irritation. At the time the regulation was being drafted, the National Cancer Institute and the National Institute of Occupational Safety and Health disclosed new studies showing that exposure to formaldehyde might also cause leukemia in humans.

The EPA rule, signed in February, did not mention the possible link to leukemia. Instead, it adopted a standard for exposure based on a cancer risk model developed by the Chemical Industry Institute of Toxicology. That assessment is about 10,000 times less stringent than the level previously used by the EPA in setting general standards for formaldehyde exposure.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Environmental Issues

Indiana Decisions - Transfer list for week ending May 21, 2004

Here is the Indiana Supreme Court's transfer list for the week ending May 21, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Here are the links to the Court of Appeals opinions in the two cases which were granted transfer today:

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Indiana Transfer Lists

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

Benny Saylor v. State of Indiana (5/20/04 IndSCt) [Criminal Law & Procedure]
Boehm, Justice

In 1992, Benny Saylor was sentenced to death despite a unanimous jury recommendation to the contrary. In 2002, Indiana law was changed in an important respect by requiring a unanimous jury recommendation of death before the death penalty can be imposed. Appellate courts are to review and revise sentences that are inappropriate. We conclude that it is not appropriate to execute a person who was convicted and sentenced through a procedure that has now been substantially revised so the same trial today would no longer render the defendant eligible for the death penalty. At the time of Saylors crime, life without parole could not be imposed under Indiana law. Accordingly, we revise Saylors sentence to a term of one hundred years. * * *
Dickson, Sullivan, and Rucker, JJ., concur.
Shepard, C.J., dissents with opinion.
See also this AP story that begins: "The Indiana Supreme Court ruled today that because of a change in state law, nobody sentenced to death without a jury recommendation can be executed."Robert Dean Waibel v. State of Indiana (5/21/04 IndCtApp) [Criminal Law & Procedure]
Brook, Senior Judge - Affirmed

Jedediah Haltom v. State of Indiana (5/21/04 IndCtApp) [Criminal Law & Procedure]
Kirsch, Chief Judge
Jedediah Haltom appeals the trial courts order of restitution for the benefit of Linda Meyer. Haltom raises two issues on appeal, which we consolidate and restate as follows: whether the trial court abused its discretion in ordering Haltom to pay restitution to Meyer for her medical and hospital expenses and lost earnings after she signed a release of all claims and received a settlement from his insurance company in her civil action. We reverse. * * *

While we commend the trial court for its thorough restitution order, which greatly facilitated our review on appeal, we find that the trial court abused its discretion in ordering Haltom to pay restitution to Meyer for her medical and hospital expenses and lost earnings because she had already recovered for these losses through the settlement with Nationwide. The plain language of IC 35-50-5-3(e) indicates that while civil settlements may be brought subsequent to the imposition of a restitution order, these actions must be for damages not covered or contemplated by the restitution order. * * * Indiana has long allowed contracting parties to enter into any agreement they desire so long as it is not illegal or against public policy. Here, Meyers settlement with Nationwide was more than three times her actual losses and damages totaling $27,956.88. Therefore, when Meyer executed the Release and accepted the settlement, she waived her right to seek restitution because she no longer had any actual losses or damages. See id. The $100,000 settlement more than covered her medical and hospital expenses and her lost wages.

With all of the above in mind, we conclude that the trial court abused its discretion in ordering Haltom to pay restitution to Meyer as a condition of his probation. Accordingly, we reverse the trial courts order for restitution in this matter. See IC 35-50-5-3. * * *
NAJAM, J., and RILEY, J., concur.

Jack Perry v. William Driehorst, M.D., et al. (5/21/04 IndCtApp) [Medical Malpractice]
Ratliff, Senior Judge
The sole issue presented for our review is whether the trial court correctly granted Dr. Driehorst and Southsides motion for summary judgment. * * *

The trial court correctly granted Dr. Driehorst and Southsides motion for summary judgment. After Dr. Driehorst and Southside designated the medical review panels unanimous decision that Dr. Driehorst had not violated the standard of care, Perry was required to present expert medical testimony on the appropriate standard of care, and how Dr. Driehorsts conduct fell below that standard. Perrys designated evidence in response to the motion for summary judgment did not meet that requirement. Affirmed.
KIRSCH, C.J., and FRIEDLANDER, J., concur.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts 3 today

In AMMONS, CLYDE v. ARAMARK UNIFORM SERVICES (ND Ill.), MANION, Circuit Judge: "Clyde Ammons sued his former employer, Aramark Uniform Services, Inc. (Aramark), for terminating his employment in violation of the Americans with the Disabilities Act, 42 U.S.C. 12101 et seq. (the ADA)." Summary judgment in favor of Aramark affirmed.


MANION, Circuit Judge. Smurfit Newsprint Corporation (Smurfit) appeals a grant of summary judgment to Southeast Paper Manufacturing Company, now known as SP Newsprint Company (SP). The district court held that the no-prejudice rule of New York insurance law should apply to the indemnification provisions of an asset purchase agreement, enabling SP to avoid a potential obligation to indemnify Smurfit. We conclude that, were the New York Court of Appeals presented with this question, it would not apply the rule. We, therefore, reverse the holding of the district court with respect to this issue. The district court also held that SP did not breach the asset purchase agreement, and we affirm that decision.
USA v. HICKS, HERMAN (ND Ind., Judge Lozano)
KANNE, Circuit Judge. A jury convicted Herman Hicks, Radar Tyler, and Driefus Harbin of, among other offenses, conspiring to possess with intent to distribute and conspiring to distribute more than fifty grams of crack cocaine in violation of 21 U.S.C. 846 and 841(a)(1). In this consolidated appeal, all three defendants contest the sufficiency of the conspiracy evidence against them and the district courts decision to allow various acts of violence, including murders, into evidence as support for the governments conspiracy theory. Harbin also challenges his sentence, alleging that the district judge erred in refusing to grant him the two-level downward adjustment for acceptance of responsibility under U.S.S.G. 3E1.1. We affirm in all respects.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Indiana Decisions

Biotech - Canada Supreme Court upholds Monsanto right to control usage of its patented seeds

Jurist is reporting that "In what is believed to be the first ruling of its kind anywhere in the world, the Supreme Court of Canada Friday upheld a claim by the Monsanto agricultural biotech company that a farmer had committed a gene patent violation by growing Monsanto-developed Ready Roundup canola seeds on his land without permission." The Jurist entry has links to related materials.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Biotech

Law - Illinois Supreme Court grants raises to all Illinois judges

From today's Chicago Tribune, in a story headlined "Judges stir up budget brouhaha" :

SPRINGFIELD -- As lawmakers grappled with a crushing budget deficit and Gov. Rod Blagojevich sounded warnings of thousands of potential layoffs, the Illinois Supreme Court on Thursday ordered the state to give hefty raises worth up to $10,000 annually to all Illinois judges--including themselves.

The Supreme Court decision bore special political symbolism, coming as the administration was trying to persuade the state's largest employee union to make concessions in a contract up for renewal in a few weeks because of the state's fiscal plight. * * *

The dispute over judges' pay arose last year after a state commission recommended the salary hikes for the state's 911 judges, which Blagojevich later vetoed.

Judges objected to the move and filed suit, complaining that the failure to give them raises recommended by the Compensation Review Board and approved by the General Assembly was unconstitutional. The Illinois Constitution states that judges' salaries can't be diminished during their terms of office.

In its unanimous decision, the high court called Blagojevich's action a fundamental breach of the constitutional principle of separation of powers. Writing for the court, Justice Philip Rarick said the judicial system should be free from retribution for unpopular decisions it might render.

"Today the governor may decide judges are paid too much," Rarick wrote. "Tomorrow he may decide there are too many judges. Eventually he may decide the state would be better off without judges at all."

The increase hikes the seven Supreme Court justices' pay from $158,103 per year to $168,706. The state's 54 appellate justices will go from making $148,803 to $158,783. Circuit judges get a raise from $136,546 to $145,704, while associate circuit judges go from salaries of $127,247 to $135,780.

In his opinion, Rarick noted that the budget for the judicial branch accounts for a fraction of 1 percent of the entire state budget. He acknowledged the "substantial budgetary challenges" facing the governor, but wrote that, while court administrators try to cut costs, they cannot "ignore the Constitution of Illinois."

The NY Times story is here. The Munster Times has the AP story here.

The case is ANN B. JORGENSEN et al., Appellees, v. ROD R. BLAGOJEVICH, Governor, et al., Appellants. The opinion is here.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to General Law Related

Indiana Decisions - Court of Appeals decision on Gary fitness center

The Gary Post-Tribune is reporting today, in a story headlined "Court rules city owns fitness site," that:

A five-year dispute over who owns the Hudson-Campbell Fitness Center is drawing to a close. The state Appeals Court on Wednesday ruled the city of Gary owns all of the land beneath the complex, denying the claim of a trust that bought one of the parcels at a tax auction more than 10 years after the recreation center was built.

The attorney for the trust said he would appeal the decision a second time, but city attorneys believe the only court battles in Hudson-Campbells future will involve basketball or tennis. * * *

I cant imagine why the state Supreme Court would accept (the case), said city attorney Jewell Harris Jr. Munster attorney James J. Nagy, who would not identify his clients, said he would continue to fight. Just because (the city) has a building on on the property doesnt mean they own it, Nagy said.

When the city condemned the land to build on the site during the 1980s, for some reason, the Lake County clerk did not record the deed to a 30-foot wide swath that now is the site of tennis courts, offices and parking lot. Since the land still was listed as property of the defunct Zem Inc., the county continued to bill the owner for taxes. After years of nonpayment, the land was put up for tax auction in 1997.

Though the Hudson-Campbell Center had been open for more than 10 years, a trust purchased the land, and later transferred its deed to another trust. In 2000 the Jasper County court that ruled on the citys condemnation claim finally issued the city a deed for the land. More than 20 years after Hudson-Campbell opened its doors, the city found itself in a battle to prove it owned the building and the land. * * *

Attorneys for the city argued that the land was clearly public property that never should have been taxed, much less sold at a tax auction, Harris said. The court concurred in its decision by an actual view of the premises... (the trust) would have been tipped off that it needed to investigate the property further.

Interestingly, this decision has not been posted on the Court's website -- leading to the conclusion that it must be an unpublished (and unposted) opinion. As I've mentioned before, what "unpublished" means in the case of the Indiana Court of Appeals is that paper copies are available to the press, and are available for purchase at $1.00/per page to members of the public who know about a decision and ask for it at the Clerk's Office, but are not posted online. Other courts, such as the Indiana Tax Court and the federal courts of appeals, do post their unpublished opinions. The Indiana Supreme Court issues no unpublished opinions.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Indiana Decisions

Environment - Citizens Gas & Coke Title 5 air permit up for review; public comment period extended

This IDEM press release announced a public hearing for Monday, May 17th. Note that the link to IDEM air permits given in the press release is wrong; here is the correct link. I had difficulty finding the correct permit even after locating the site, so here is the direct link to the 149-page draft permit.

According to this story in today's Indianapolis Star:

State and city environmental officials decided this week to extend the public comment period to allow residents to make a case for delaying the permit until an environmental audit of the facility is completed.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Environmental Issues

Economic development - China moves rapidly forward, voraciously consuming raw materials

This story today in the Washington Post. "Booming China Devouring Raw Materials: Producers and Suppliers Struggle to Feed a Voracious Appetite," illustrates the econimic shifts of the 21st century as well as anything I've read recently. Some quotes from a lengthy story:

NEWCASTLE, Australia -- Four miles off Nobbys Head, a spit of land jutting into the Pacific like a beckoning finger, 34 bulk freight ships sit anchored in involuntary vigil, pounded by ceaseless wind. They are waiting their turn to proceed to the wharf and load coal for power plants in northeast Asia. Waiting for at least two weeks.

At its worst in March, the queue stretched to 56 ships. People on land took to driving to a lookout point for amusement, counting the hulks marooned off their shores by the vagaries of global trade.

The immediate reason for the seagoing traffic jam is that the rail system cannot handle the demand at the world's largest coal port. The more meaningful explanation goes far beyond Newcastle: What is happening is a ripple effect from the ascendant economic force of China, whose seemingly insatiable demand for raw materials is reshaping commodities markets worldwide and straining the systems that move goods on land and sea.

The China Syndrome, as it known, explains why as many as one-fifth of the bulk freighters in the world are effectively unavailable on any given day and why the cost of moving bulk freight has more than doubled in just over a year. The same ships that sit stranded outside Newcastle, or at iron ore ports in Brazil, India and western Australia, must line up again for as long as three weeks to unload at congested Chinese ports such as Qingdao and Ningbo.

The construction frenzy that is crowning China's cities with skyscrapers and laying the works for modern industry has transformed it from a minor consumer of raw materials into a country that -- according to its official statistics -- absorbed roughly half the world's cement production last year, one-third of its steel, one-fifth of its aluminum and nearly one-fourth of its copper. Last year China eclipsed Japan to become the world's second-largest importer of oil after the United States.

Posted by Marcia Oddi on Friday, May 21, 2004
Posted to Indiana economic development

Thursday, May 20, 2004

Law - Update on Punitive Damages

Updating our May 15th entry on punitive damages, "California to follow Indiana's lead?", is an opinion piece today in the Wall Street Journal, page A2, titled "In Search of Cash, California Looks for Take Of Punitive Damages." A quote:

At least eight states currently take a slice of punitive-damages awards. Most let lawyers eat first. Iowa, for instances, takes 75% after lawyers are paid; Alaska and Missouri take 50%. Only Indiana does what Gov. Schwarzenegger proposes, taking its 75% of punitive-damages awards before the lawyer's cut and putting the money in a fund to compensate victims of violent crimes. Last year, an Indiana woman won $100,000 in compensatory damages and $100,000 in punitive damages from her ex-husband after he widely distributed photos of the couple having sex. The state claimed its $75,000. She and her lawyers challenged the constitutionality of the statute. They lost.
The link to this article is provided via How Appealing, and it looks like it is a "free feature' rather than limited to paid WSJ subscribers.

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to General Law Related

Economic Development - Iron Nuggets Plant Update

Updating our May 13th entry is this story/press release today from Northern Minnesota's BusinessNorth.com, headlined "Pawlenty signs Mesabi Nugget bill in Silver Bay." The lead:

SILVER BAY, Minn. (Office of Gov. Tim Pawlenty) -- Governor Tim Pawlenty came to the shores of Lake Superior today, to sign into law a bill that will facilitate the environmental permitting of a production scale iron nugget demonstration plant in Minnesota.
[Update 5/21/04] Here is a story from the DuluthNewsTribune.com that begins: "Minnesota has played its hand when it comes to iron nuggets, and hopefully that effort will pay off, Gov. Tim Pawlenty told local politicians, mining industry workers and officials Thursday."

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to Indiana economic development

Biotech - Biotech human food crops on their way out?

"Narrow Path for New Biotech Food Crops" is the headline to this story today in the NY Times. Some quotes:

Agricultural biotechnology continues to spread in the United States and worldwide, and proponents see signs that the crops are becoming more accepted. On Wednesday, as expected, the European Commission decided to allow imports of a genetically engineered sweet corn developed by the Swiss company Syngenta, ending a six-year European moratorium on the approval of biotech food.

But to the extent biotechnology is growing, it is in a narrow range. Some 99 percent of the crops are grown in six countries - the United States, Argentina, Canada, Brazil, China and South Africa. And virtually all the worldwide acreage is devoted to only four crops: soybeans, corn, cotton and canola.

With these four, genetic engineering caught on before consumer resistance gathered force a few years ago. These crops are also largely used for animal feed, clothing or to make oil and other ingredients for processed foods rather than eaten directly - something that has helped them gain acceptance.

But recent attempts to move genetic engineering to other crops has met resistance, or at least fear by food companies and farmers that consumers will balk. And these days, many experts say, the time and money involved in clearing regulatory hurdles make it uneconomical to apply biotechnology to any but the most widely grown crops.

Just last week, Monsanto shelved plans to introduce the world's first genetically modified wheat because some American and Canadian farmers worried that European and Japanese buyers would shun not only the modified wheat but all their wheat. * * *

The narrow range of crops means that biotechnology may not realize its full potential. On Monday, for instance, the Food and Agriculture Organization, a United Nations specialized agency, issued a report saying that the technology, despite its promise, was not yet doing much to help feed the world's poor because it was not being applied to the sorts of crops grown in developing countries - like potatoes, cassava, rice, wheat, millet and sorghum. * * *

One reason for the difficulty that new gene-altered crops have is that food companies and farmers are reluctant to risk losing even a little bit of market share or attracting protests. Virus-resistant biotech potatoes were taken off the market by Monsanto after big potato processors and fast-food companies told growers that they did not want them. Lettuce growers in California balked at the introduction of Roundup Ready lettuce, said Kent J. Bradford, a professor of vegetable crops and director of the seed biotechnology center at Davis.

The Washington Post published an AP story May 11th that it headlined "Monsanto Shelves Plans for Biotech Wheat." Some quotes:
In its decision Monday, the St. Louis-based firm cited economic factors, including a 25 percent decrease in U.S. and Canadian spring wheat acreage since 1997 and a lack of "widespread industry alignment" behind biotech wheat.

Monsanto had hailed the development of its wheat variety made resistant to the company's own Roundup herbicide. The genetic changes, the company said, would allow a farmer to spray the herbicide without harming the wheat plants.

But genetically altered wheat has been a tough sell, with some foreign importers indicating they will not buy it. While biotech corn and soybeans primarily go into livestock feed and additives, wheat is generally used for bread and other human foods.

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to Biotech

Indiana Decisions - Five new Court of Appeals opinions posted today

Eric M. Serrano v. State of Indiana (5/20/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge

Appellant-defendant Eric Serrano appeals his conviction for Sexual Misconduct with a Minor, a class C felony. Specifically, Serrano argues that his conviction must be reversed on the grounds of insufficient evidence because the trial court erred in admitting the police officers arrest report as the only evidence of his age. Finding that the arrest report was inadmissible hearsay evidence, we reverse the judgment of the trial court. * * *

This conclusion leads us to the question of whether Serrano may be retried upon remand. * * * When evidence is admitted that is prejudicial but without which the States case would not otherwise fail, the State may retry the defendant. See id. However, when the only evidence of a material element is inadmissible, the State has failed to satisfy its burden of proof, and it may not have a second chance. The rule cannot be otherwise or the State could endlessly retry defendants and appeal until they can finally obtain a conviction. In sum, the evidence admitted at trialadmissible and inadmissible alikeis insufficient as a matter of law to sustain Serranos conviction, and the charges against him are hereby dismissed with prejudice. See footnote
The judgment of the trial court is reversed.
FRIEDLANDER, J., concurs.

BAILEY, J., concurs and dissents, with opinion:
I concur in the majoritys reversal of Serranos conviction for sexual misconduct with a minor, a Class C felony, on the basis that the trial courts admission of the arrest warrant constituted reversible error. However, I respectfully dissent from the majoritys conclusion that Serrano may not be retried upon remand. * * *

Robert O. Ballard v. State of Indiana (5/20/04 IndCtApp) [Criminal Law & Procedure]

"We further hold that the trial court erred in sentencing Ballard to an aggravated sentence of forty years, based on Ballards criminal history which is comprised entirely of offenses unrelated to the present offense. "

Charley A. Pond v. State of Indiana (5/20/04 IndCtApp) [Criminal Law & Procedure]

Medical Assurance of Indiana (MAI), et al. v. Sally McCarty, et al. (5/20/04 IndCtApp) [Medical Malpractice]

MAI suggests throughout its brief that requiring it to pay $100,000 for each act of malpractice Dr. Patel committed, which led to distinct injuries, will frustrate the overarching intent of the Act to limit malpractice liability, lower malpractice insurance rates, and thereby ensure access to healthcare by more Hoosiers. It reminds this court of the spiraling costs in Indiana of malpractice insurance and, therefore, health care generally that prompted the Acts passage * * *. We do not accept that our decision today will lead to the horribles that preceded the passage of the Act or, given the evident uniqueness of the facts of this case, that it will have a significant impact on the cost and availability of medical malpractice insurance in the State of Indiana . . . . The Act has been in existence now for almost thirty years. Today presents the first case addressing whether a doctor and his or her insurer are required to pay twice for two separate acts of malpractice occurring during one medical procedure that has resulted in two distinct injuries. Either such payments have been made in the past without complaint, or this type of event would appear to be exceedingly rare. We also decline to accept that limiting malpractice exposure for health care providers and their insurers is the only relevant consideration when interpreting a provision of the Act. That is a factor, of course, when considering questions arising under the Act, but it must be balanced in this case against the need to fairly apportion the cost of malpractice when and if it occurs and to ensure recovery by injured patients.

Conclusion. The trial court correctly concluded that Dr. Patel and MAI are required to make two maximum health care provider payments totaling $200,000 to discharge their liability to Barker pursuant to IC 34-18-14-3(b). We affirm the grant of summary judgment in the Funds favor. Affirmed.
CRONE, J., and MATHIAS, J., concur.

Milan Stulajter v. Harrah's Indiana Corporation, et al. (5/20/04 IndCtApp) [Statutory construction]
KIRSCH, Chief Judge
Milan Stulajter appeals the trial courts dismissal of his complaint against Harrahs Indiana Corporation (Harrahs). In his complaint, Stulajter claimed that Harrahs breached its statutory duty by sending him marketing materials and admitting him to its casino after he placed himself on the casinos voluntary self-exclusion list. Because we conclude that a violation of Indiana gaming regulation does not give rise to a private cause of action, we affirm the trial courts decision. * * *

If the legislature intended to create a right to a private cause of action under the Commission rules for riverboat gambling, it could have included such a provision. Because it did not do so, we conclude that Stulajter does not have the right to bring a private cause of action based on a violation of the self-exclusion program rules. If Harrahs is in violation of any of the stated statutory provisions, it must answer to the Commission, not a private citizen claiming harm from the alleged violation. * * * We conclude that Indianas gaming statutes and regulations do not create a private cause of action to protect compulsive gamblers from themselves. Our conclusion today comports with the courts opinion in Merrill v. Trump Indiana, Inc., 320 F.3d 729, 732 (7th Cir. 2003), in which a federal court applying Indiana law determined that a casino operator does not owe a duty to protect compulsive gamblers from themselves. The court noted that Indiana law does not recognize the existence of a duty between a tavern proprietor and its patrons and stated, Indiana law does not protect a drunk driver from the effects of his own conduct, and we assume that the Indiana Supreme Court would take a similar approach with compulsive gamblers. Id. Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to Indiana Decisions

Indiana Decisions - Four Supreme Court Decisions Posted Today

Jeffrey Dean Washington v. State of Indiana (5/20/04 IndSCt) [Criminal Law & Procedure]
Rucker, Justice - Affirmed.

In the Matter of K.G., D.G. D.C.B. and J.J.S. (5/20/04 IndSCt) [Statutory Construction; Juvenile Law]
Rucker, Justice

We hold that although juveniles alleged to be delinquent have the constitutional right to have their competency determined before they are subjected to delinquency proceedings, the adult competency statute is not applicable in reaching that determination. * * *

The State contends here, as it did before the Court of Appeals, that the trial courts reliance on the adult competency statute was improper because the juvenile code provides procedures that permit a court to make competency determinations for children and place them in treatment centers when necessary. The Court of Appeals rejected this argument, concluding (1) juveniles have a constitutional right to have their competency determined before they are subjected to delinquency proceedings, and (2) because the juvenile code provides no procedure for determining the competency of children, the adult competency statute applies. * * *

Indiana Code section 31-32-1-1 provides, If a child is alleged to be a delinquent child, the procedures governing criminal trials apply in all matters not covered by the juvenile law. It is true that the juvenile code does not provide an explicit procedure for handling juvenile competency issues. Nonetheless, in construing a statute our main objective is to determine, give effect to, and implement the intent of the legislature. As a matter of statutory interpretation, and considering the history and purpose underlying the juvenile code, we do not believe the Legislature intended that the adult competency statute should apply to juveniles. * * *

We conclude that juveniles alleged to be delinquent have the constitutional right to have their competency determined before they are subjected to delinquency proceedings. However, the adult competency statute is not applicable in reaching that determination. We therefore reverse the judgment of the juvenile court and remand this cause for further proceedings consistent with this opinion.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., not participating.

In the Matter of Termination of E.T. and B.T (5/20/04 IndSCt) [Evidence]
Rucker, Justice
We conclude that reports compiled by a social services agency describing home visits and supervised visitations do not qualify as business records and thus are not admissible as an exception to the hearsay rule. * * *

Except as otherwise provided, we vacate the opinion of the Court of Appeals and affirm the judgment of the trial court.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., not participating.

Derrick Daron Clark v. State of Indiana (5/19/04 IndSCt) [Criminal Law & Procedure]
Boehm, Justice
In this direct appeal, Derrick Clark appeals his conviction of murder and sentence to life without parole. We affirm the trial court. * * *

C. Constitutionality of Statute. * * * At the time of the original sentencing, the life without parole statute provided that, [t]he court shall make the final determination of the sentence, after considering the jurys recommendation . . . . I.C. 35-50-2-9(e) (2002). Clark argues that under the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002), the life without parole statute applicable at the time of his conviction is unconstitutional. * * * Clark asserts that even though the trial judge in this case accepted the jurys unanimous recommendation, the fact that the statute can be applied in an unconstitutional manner renders the entire statute unconstitutional. * * * This is not a claim that the jury was incorrectly instructed as to its role, which is an error that violates the Eighth Amendment as interpreted in Caldwell v. Mississippi, 472 U.S. 320, 330 (1985). Rather, Clarks contention boils down to a claim that the pre-2002 version of the Indiana Death Penalty statute was inherently defective because the jury did not consider its determination to be binding on the judge. If the jury believed its recommendation to be binding, it might feel more solemn in its deliberations. At the time of the jury deliberation, Indiana law provided that the recommendation was not binding, and the jury was so instructed. There was no error in the instructions, and there is no authority for the proposition that a nonbinding recommendation is inherently unconstitutional. * * *
Shepard, C.J., and Dickson, and Sullivan, JJ. concur.
Rucker, J., concurs except for the majoritys resolution concerning the sentence. * * *

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to Indiana Decisions

Indiana Decisions - Two 7th Circuit opinions posted today

ALLSTATE INSUR CO v. KECA, DONNA E. (ED Wis.) FLAUM, Chief Judge. "This appeal presents the question whether an underinsured motorist (UIM) reducing clause contained in the insurance policies held by the defendants is enforceable under Wisconsin law, and if so, how the clause applies."


Before BAUER, POSNER, and DIANE P. WOOD, Circuit

BAUER, Circuit Judge. This habeas corpus appeal arises from Thomas Moores conviction for rape and criminal deviate conduct in 1992. Moore raises two substantive issues on appeal: (1) whether the state trial court judge violated his right to a fair trial by authorizing ex parte communications with the jury, and (2) whether the prosecutor failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 86 (1963). In reviewing these appeals, we find that the trial court judges ex parte communications with the jury were inappropriate and interfered with Moores constitutionally guaranteed right to a fair trial. Accordingly, we reverse and remand to the District Court to issue Moores writ, unless the state elects to retry him within 120 days. * * *

During its deliberations at the conclusion of the trial the jury sent a note to Judge Kathy Smith. The note contained factual questions regarding Moores alibi; specifically, the jury asked where Moore lived, the distance between the Moores home and the location of the crime, and the time Moore arrived home on the night in question. Judge Smith responded to the questions, via the Bailiff, and did not discuss the matter with either attorney. None of this communication occurred on the record. Just prior to sentencing, the Judge informed Moores attorney of the jurys questions; this also occurred off the record. Moores attorney objected; the Judge proceeded with sentencing. Moore now argues that the Judges actions constituted ex parte communication with the jury in violation of his right to a fair trial.

The opinion includes several interesting footnotes.

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to Indiana Decisions

Economic Development - Two Indiana-related items

This article concerns environment-friendly economic development in NW Indiana. The Gary Post-Tribune reports today:

LaPORTE With riverboat gambling funds in hand, LaPorte County is rallying around an effort by farmers to acquire a 56-mile stretch of rail used to transport crops. The line is slated for closure. LaPorte County Commissioners this week granted a request for $75,000 to help in the effort to buy a stretch of track in LaPorte, Starke and Porter counties that will cost $1.7 million. Money earmarked for the acquisition will be derived from the countys share of riverboat funds. Theres only a few times when local government can have a positive impact on family farmers and this may be one of them, said LaPorte County attorney Shaw Friedman.

LaPorte County Farm Bureau Co-Op, which utilizes the rail line to deliver shipments from its grain elevator in Union Mills, is spearheading the attempt to buy the CSX Railroad track. Twenty-three miles of the track is in southern LaPorte County. If the rail is abandoned, farmers served by the line will have to utilize trucks to get their grain to market, a more costly transportation, particularly during skyrocketing gas prices. Its a lot more expensive, said Jim Keller, location manager at LaPorte County Farm Bureau Co-Op branch in Union Mills. * * *

Considering agriculture is still a major component to the vitality of the area, LaPorte County Commissioner Marlow Harmon said. Its a plus for economic development and I think thats where weve got to go with this thing. A $1 million grant is being sought from the Indiana Department of Transportation to cover the brunt of the acquisition price. Other revenue is being sought from Starke and Porter counties, and the town of North Judson has pledged $5,000 toward the purchase, along with use of equipment needed to help operate the line.

This item is about a cool site called Factory Tours USA. Click on a state and get a detailed list of all the factory tours available. Click on Indiana and see a list of currently 20 factory tours, including a pickle processor (Ralph Sechler & Son, Inc. in St. Joe), the South Bend Chocolate Company, Eli Lilly's Tippecanoe Laboratories in Lafayette, the Walker Piano Company in Elkhart, and Kokomo Opalescent Glass. I've been on the Kokomo Glass tour; it is unforgetable - molten glass is taken out of the furnaces, put on a table, mixed, and rolled just as it was over 100 years ago.

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to Indiana economic development

Environment - Slater Steel Agreement Documents

"Cap proposed to Fort Wayne Steel Mill's Environmental Costs" was the title to an Indiana Law Blog entry posted Feb. 2, 2004; a follow-up entry posted Feb. 14, 2004 was titled "More on Fort Wayne's Slater Steel Site."

Thanks to IDEM, here are copies of the Prospective Purchaser's Agreement, dated 4/19/04, and the Release Agreement.

Posted by Marcia Oddi on Thursday, May 20, 2004
Posted to Environmental Issues

Wednesday, May 19, 2004

Law - Lawyer in Texas Ousted From Case for Not Taking Cash

This story is on the New York/Texas Lawyer site today. Some quotes from the story summary (subscription required to read full story):

Bill Sanders can't afford Mary McKnight's six-figure legal bill based on what he makes as a land surveyor. So Sanders did carpentry work on McKnight's Dallas law office to help defray the fees he incurred in his divorce proceedings, McKnight says.

To help pay his $100,000 legal bill, Sanders performed $25,000 worth of work on the 1890s Victorian house McKnight uses as an office, including building a staircase and remodeling the kitchen and a bathroom, McKnight says.

And that arrangement, according to Dallas' 5th Court of Appeals, was enough to get McKnight disqualified from representing Sanders at trial.

The 5th Court's Feb. 13 mandamus decision, In Re: Joyce Elizabeth Sanders, troubles some family law attorneys who say the opinion could kill a long tradition of bartering between lawyers and low-income clients.

Here is the Texas court's opinion. For more discussion, see this entry from a site now called Prof. Yabut's Journal.

[Update 5/21/04] Here is an article from Law.com headlined: "No Atticus Finches Allowed? Bartering deal prevents lawyer from representing client at trial." Actually it is the same article cited above from Texas, but here you can read it in full. Another quote:

Toby Goodman, a family law attorney and partner in Arlington's Goodman Clark & Beckman, has accepted a variety of goods and services in exchange for representing clients who couldn't otherwise afford his legal fees. Goodman says clients have given him jewelry, a shotgun, a rose bush, and installation of a sprinkler system and a telephone system in exchange for legal services. It may be an unusual way to get paid, but it is payment, Goodman says.

"The interesting question is what's the difference in paying the lawyer in cash and paying in goods" and services? asks Goodman, who also is a Republican member of the Texas House of Representatives. "The lawyer is already a witness in what they've been paid and what's owed. So what's the difference? I don't know where the 5th Court of Appeals came up with their logic on it."

Sometimes low-income clients want to repay their lawyers any way they can, Goodman says, even if it's a small gift. That happened in a case in which Goodman represented a family pro bono in a landlord-tenant dispute. "They bake us cakes and cookies and bring it up to us at Christmas," Goodman says. "Is that a fee? Am I disqualified because of that? That goes on all of the time."

Posted by Marcia Oddi on Wednesday, May 19, 2004
Posted to General Law Related

Indiana Decisions - Three Court of Appeals, One Tax Court Opinion(s) posted today

Robert P. Benavides v. State of Indiana (5/19/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
SHARPNACK, J., and MATHIAS, J., concur

This case considers the adminissibility into evidence of an audiotape of a 911 call.

Specifically, Benavides argues that portions of the 911 call are unintelligible, causing the jury to speculate about its contents. In Lamar v. State, the Indiana Supreme Court held that one of the foundational requirements for admitting an audiotape into evidence is that it be of such clarity as to be intelligible and enlightening to the jury. Otherwise, it serves no beneficial purpose[.] 258 Ind. 504, 282 N.E.2d 795, 800 (1972).

This rule requires that the audiotape be intelligible enough to be probative of the purpose for which it is being offered. And necessarily, the probative value must not be substantially outweighed by the danger of confusion or unfair prejudice. See Ind. Evidence Rule 403. The vast majority of cases addressing whether an audiotape is intelligible and enlightening to the jury involve situations where the meaning of the words on the tape is the reason that the tape is probative, for example: custodial interrogations of defendants, defendants statements to police, and confidential informants wearing wire transmitters. * * * In this case, however, the audiotape of Crystals 911 call was not admitted for the primary purpose of showing the meaning of the words on the tape. Rather, the State introduced the audiotape to show that a robbery occurred and to attack Benavides version of eventsboth of which could be shown without understanding what was being said during the unintelligible portions of the audiotape. * * *

The State did not offer the audiotape to create speculation as to what was being said during the unintelligible portions. Instead, the State offered the audiotape to contradict Benavides version of events in many respects, including his assertions that he had Jasons permission to enter the apartment and that Crystal was not on the telephone, and to show that a violent crime more serious than theft was being committed due to Crystals hysterics. The audiotape was intelligible for these purposes and, in turn, was enlightening to the jury. Further, the probative value of the contents of the tape was not substantially outweighed by the danger of confusion or unfair prejudice. Because the audiotape was intelligible for the purposes for which it was offered and enlightening to the jury, the trial court did not abuse its discretion by admitting into evidence the audiotape of Crystals 911 call.

Susan Litchfield v. State of Indiana (5/19/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Bailey, Judge
[The Litchfields] were charged with Possession of Marijuana, a Class D felony, and Maintaining a Common Nuisance, a Class D felony. They bring this interlocutory appeal from the denial of their motion to suppress evidence obtained through a warrantless search of their trash and subsequent search of their residence, which was pursuant to a search warrant. We affirm. * * *

The Litchfields argue that the warrantless police search of their trash was unreasonable, and therefore violated Article I, Section 11 of the Indiana Constitution. * * *

In turning to the Litchfields substantive argument, we note that our supreme court addressed trash searches under the Indiana Constitution in Moran v. State, 644 N.E.2d 536 (Ind. 1994). There, the Court rejected the two-prong test announced by the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967), when analyzing the reasonableness of such searches under the Indiana Constitution. Moran, 644 N.E.2d at 540. The Katz test focuses upon the individual and societal expectation of privacy in determining whether a search is reasonable. Instead, our supreme court determined that the reasonableness of trash searches should be determined based on a totality of the circumstances. In so doing, the supreme court recognized that Hoosiers are not entirely comfortable with the idea of police officers casually rummaging through trash left at curbside. Nevertheless, the court concluded that the curbside search of Morans trash, which (1) was reached without trespassing on Morans property, (2) was performed at a time when neighbors would not be disturbed, and (3) was performed in a manner consistent with typical trash collection did not violate Article 1, Section 11. The Litchfields direct us to State v. Stamper, 788 N.E.2d 862 (Ind. Ct. App. 2003), trans. denied, which was decided by a different panel of this court. In Stamper, the Court of Appeals determined that an unwarranted search of trash, which was not placed out for collection, and which was reached by trespassing onto Stampers property, was unreasonable and suppressed the results of the search. The Stamper court held that it is the entering onto private property that determines whether the search is reasonable, not how many feet the officer had to traverse to reach the garbage bag. Stamper, 788 N.E.2d at 866 n.2.

We decline to follow Stamper to the extent that Stamper appears to have created a bright-line test for determining reasonableness. See footnote Instead, we will determine the reasonableness of the trash search based on the totality of the circumstances, consistent with Moran.
Here, while Trooper Ringer did trespass onto the Litchfields property to seize the trash bags, he did so in a manner consistent with the Litchfields regular trash collection service and at times that would not bring his police activities to the neighbors attention. Further, the containers were more than fifty yards away from the residence in an unfenced area of the front yard, shielded from view from the residence by several trees. These facts demonstrate that the area where the trash containers were located was not curtilage, i.e. connected with the conduct of family affairs and for carrying on domestic purposes. Taken together, we do not find the trash search unreasonable under the totality of the circumstances. Accordingly, the trial court did not err in denying the Litchfields motion to suppress. Affirmed.
DARDEN, J., concurs.

RILEY, J., dissents with separate opinion:
* * Here, our review of the record reveals that not only had the Litchfields contracted with a private waste collection service company for the removal of their garbage, Trooper Ringer clearly trespassed onto the Litchfieldss property to seize the trash bags. As such, I find that the Litchfieldss expectation of privacy was reasonable, and thus, the trial court erred by denying their motion to suppress.

Furthermore, the majority appears to curtail the Moran decision by introducing a new element to the test. In its analysis, the majority, after describing the area where the trash containers were held, concluded that [t]hese facts demonstrate that the area where the trash containers were located was not curtilage, i.e.[,] connected with the conduct of family affairs and for carrying on domestic purposes. Although the element of curtilage is frequently discussed under a Fourth Amendment analysis, a claim under Article I, 11 of the Indiana Constitution is analyzed independent of federal law. * * * To date, no reported Indiana cases have made a distinction between the curtilage of someones domain and other property for the purpose of the trespassing requirement under Moran. In its adoption of this distinction, the majority represents a sweeping change to, and in my opinion an unnecessary deterioration of, our supreme courts liberal interpretation of Article I, 11 of the Indiana Constitution.

Martin J. Upp v. State of Indiana (5/19/04 IndCtApp) [Criminal Law & Procedure]
Hoffman, Senior Judge
Defendant-Appellant Martin J. Upp (Appellant) appeals his convictions of glue sniffing, a Class B misdemeanor, Ind. Code 35-46-6-2; and public intoxication, a Class B misdemeanor, Ind. Code 7.1-5-1-3. * * *

The State concedes that the evidence is insufficient to support Appellants conviction for public intoxication. Appellant mistakenly was charged under a prior version of Ind. Code 7.1-5-1-3. The version of the statute in effect at the time of the offense required the persons intoxication to be caused by the persons use of alcohol or a controlled substance as defined by Ind. Code 35-48-1-9. In the present case, the cause of Appellants intoxication was from sniffing glue. There was no evidence that his intoxication was the result of the use of alcohol or a controlled substance as defined by statute. Therefore, Appellants conviction of public intoxication is reversed. * * *

In order to convict Appellant of glue sniffing, the State had to prove that Appellant, with the intent to cause a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses, ingested or inhaled the fumes of model glue, or a substance that contains Toluene. Ind. Code 35-46-6-2. * * *

The evidence is sufficient to support the trial courts conclusion that Appellant inhaled model glue with the intent to cause intoxication, stupefaction, or dulling of the senses. Reversed in part and affirmed in part. Remanded for expungement of Appellants conviction of public intoxication.
KIRSCH, C.J., and BARNES.J., concur.

Williams Realty Four, LLP v. Barbara M. Hurst, Assessor of Pike Township, Marion County, et al. (5/18/04 IndTaxCt NOT FOR PUBLICATION) [Real Property Assessment]
Fisher, Judge
The sole issue for the Court to decide is whether the Indiana Board erred in denying an obsolescence adjustment to Williams Realtys improvement. * * * Williams Realtys attempt to quantify the obsolescence of its property * * * is flawed. The obsolescence of a particular improvement is tied to the loss of the improvements income generating ability. The income generated by an improvement is measured in real dollars, not [t]rue [t]ax [v]alue dollars. Therefore, subtracting a real world dollar value from a true tax value dollar value is essentially meaningless. Accordingly, Williams Realty did not meet its burden in quantifying its request for obsolescence.

Posted by Marcia Oddi on Wednesday, May 19, 2004
Posted to Indiana Decisions

Indiana Decisions - Attorneys Disciplined




Posted by Marcia Oddi on Wednesday, May 19, 2004
Posted to Indiana Decisions

Indiana Decisions - One 7th Circuit opinion today

IN RE: JOHN W. CATT, II, APPEAL OF: SHIRLEY and GERALD HASH (SD Ind., Judge Young). Judge Posner writes for the panel:

When John Catt, a builder, declared bankruptcy, the Hashes, who had been joint venturers with Catt and had obtained a fraud judgment against him in an Indiana state court for almost half a million dollars, sought a ruling from the bankruptcy judge that the judgment debt to them was not dischargeable in bankruptcy. 11 U.S.C. 523(a)(2)(A). The judge ruled, however, that the Hashes could not use the doctrine of collateral estoppel to make the state courts finding of fraud binding in the bankruptcy proceeding; they would have to prove fraud anew in that proceeding to defeat discharge. They declined to do so, standing on their claim of collateral estoppel, and so the bankruptcy judge ruled the debt dischargeable. The district judge affirmed, and the Hashes appeal.
The court here, after an interesting discussion, reverses, stating:
But all that the Hashes want to use the judgment for is the underlying finding of fraud, and under Indiana law they could have used it for that purpose even if there had been no hearing in the state court at all. The finding thus bound the bankruptcy judge.
Access the briefs in the case: Appellant; Appellee; Reply.

Posted by Marcia Oddi on Wednesday, May 19, 2004
Posted to Indiana Decisions

Indiana Decisions - Lake County reassessment case update

Updating the Indiana Law Blog entry from May 14th that reported our Indiana Supreme Court had asked the parties to file briefs "by 4:30 p.m. Tuesday" (which was yesterday) is this story today in the Munster Times, headlined "Tax bill case in high court's hands: Indiana Supreme Court may act quickly in deciding whether reassessment constitutional." Some quotes:

Lake County Superior Court Judge Robert Pete and lawyers for a homeowners group, whose suit halted the mailing of tax bills on May 7, filed legal briefs Monday. The court can take as long as it wants to decide the matter, but some observers expect it to act quickly in order to solve the legal conflict holding up the tax collections that local schools and governments need to stay afloat.

"In cases where expediency is required, the court has acted very quickly in the past," said David Remondini, counsel to Chief Justice Randall Shepard. Remondini said the court could decide the case based on the submitted paperwork, request more information or schedule an oral hearing, but he said a hearing would be rare in such a case.

Here is the report from the Gary Post-Tribune -- remember the Trib does not archive its stories.

Posted by Marcia Oddi on Wednesday, May 19, 2004
Posted to Indiana Decisions

Environment - Three interesting Indiana -related stories today

"State still seeking money to buy Greene County wetland," is the headline to this AP story today. Some quotes:

LINTON, IND. -- The Indiana Department of Natural Resources continues to seek money to buy a southern Indiana marshland nearly four months after the owner said he was considering auctioning off the property. State officials said this week that they hope to keep the 7,200-acre Goose Pond marsh area intact and open to the public. "We're looking for money," DNR spokesman Stephen Sellers said. "We have a few million dollars available now, but that's likely not enough. So we're seeking more partners."

Maurice Wilder of Clearwater, Fla., who owns Goose Pond, said in January that he was frustrated by long delays in having federal or state wildlife agencies take over the site about 40 miles west of Bloomington. Wilder said he planned to split the property up into parcels and sell it at an auction. He expected the land to sell for $5 million to $7 million.

This story in the Munster Times reports:
WASHINGTON -- Despite decades of industrial buildup and continued suburban growth, Northwest Indiana has garnered a statewide reputation as the area most committed to nurturing green spaces in developed areas. The region's communities used about $219,000 in federal funds distributed by Indiana's Department of Natural Resources over the last five years to plant trees, build small parks and halt soil erosion in suburban and urban environments.
Finally, this story today in the NY Times, titled "Bush Panel Will Study Great Lakes Cleanup." Some quotes:
President Bush created a task force on Tuesday to coordinate the federal government's policies toward the Great Lakes. He said the more than 140 federal programs dealing with Great Lakes issues, which are overseen by 10 government agencies, needed "more systematic collaboration and better integration."

Mr. Bush named Michael O. Leavitt, administrator of the Environmental Protection Agency, to head the task force. Mr. Leavitt said he would meet with all the region's governors, as well as mayors, tribal leaders and Canadian officials, within the next 30 days to set the task force's priorities. He said the priorities would include water quality and fishing stocks. * * * Last year, Congressional investigators reported that federal and state efforts to confront problems of the Great Lakes were so scattered and uncoordinated that it was difficult to measure their effectiveness. Mr. Bush directed the new task force, which will include cabinet secretaries and other top-level officials, to make recommendations to him by May 31, 2005.

Posted by Marcia Oddi on Wednesday, May 19, 2004
Posted to Environmental Issues

Tuesday, May 18, 2004

Indiana Decisions - Five Court of Appeals decisions posted today

American United Life Insurance Company v. Peter Douglas, et al. (5/18/04 IndCtApp) [Insurance]
Robb, Judge

American United Life Insurance Company (AUL) filed a Motion to Dismiss the proposed class action complaint against it. The trial court converted the motion into a Motion for Summary Judgment, and granted the motion in part and denied it in part. See footnote AUL sought certification of the trial courts order for interlocutory appeal, which was granted, and this court accepted jurisdiction. AUL now appeals the unfavorable part of the trial courts order. * * * The trial court did not err in denying AULs motion for summary judgment as to the plaintiffs claims for fraud, fraudulent concealment, and deceit, negligence per se, and the claims for monetary damages and equitable relief. We therefore affirm the judgment of the trial court and remand for further proceedings. Affirmed.
SULLIVAN, J., and CRONE, J., concur.
Josephine E. Dolatowski v. Merrill Lynch, Pierce, Fenner & Smith, et al. (5/18/04 IndCtApp) [Civil Procedure]

Brian K. Ashba v. State of Indiana (5/18/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge

This is a case of first impression in Indiana, the question being what is the proper procedure for posing questions from the jury to a witness? Though beginning January 1, 2003, our Rules of Trial Procedure required trial judges to instruct jurors that they may seek to pose questions to witnesses, the proper procedure for conducting such questioning has not yet been addressed.

Brian K. Ashba appeals his conviction for Operating While Intoxicated (OWI), a class D felony. Specifically, Ashba claims that the trial court committed reversible error when it did not allow jurors to ask questions at the close of each witnesss testimony. * * *

Jury Rule 20 does not specifically state the mechanical procedure to be used at trial in order to allow such jury questions. The prospect of jury questioning, however, is not new to Indiana. * * *

We see no reason why the procedure approved by this court under Rule 614(d) cannot be used, likewise, under Jury Rule 20. Indeed, it seems that the trial court here attempted to do as much just from an eye contact trying to check and see whether or not, you know, there were any questions. Tr. p. 158. Such a procedure is not erroneous. However, in its preliminary instructions, the trial court had told jurors that they could ask questions of the witnesses and would be given an opportunity to do so prior to that witness being excused. Tr. p. 20. The trial courts instructions did not tell jurors that it would be scanning their faces to see if they had questions. Consequently, the jurors may not have known when to ask their questions.

Instead, a trial court should explain to jurors what the questioning procedure will entail. A trial court can inform the jurors that it will be glancing at the jury to see if any questions exist after a witnesss testimony. Another mode of inquiry could be for the trial court to instruct jurors to verbally or physically indicate if they have any questions. The trial court may also choose to tell jurors that it will specifically ask for questions after each witness. In sum, the trial court may use a variety of methods to obtain jury questions but must ensure that jurors know when they will be given an opportunity to ask such questions.

Here, it is evident that the trial court was faced with a novel situation and was unsure about the procedures to follow. Ashba, however, cannot complain about the trial courts actions because he expressly joined the States objections to the juror questions and agreed that they should not be given. Tr. p. 161, 177, 178. Hence, he may not now be heard to complain and has waived this claim. * * *

In light of the issues addressed, we conclude that Ashba is precluded from claiming that the trial courts failure to pose the jurors questions was error because he invited such an error. Moreover, the State presented sufficient evidence to convict Ashba of OWI, and the trial courts sentence was appropriate. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

BP Amoco Corporation v. Robert Szymanski, Lake County Board of Commissioners and Lake County Auditor (5/18/04 IndCtApp) [Real Estate; Civil Procedure]
Riley, Judge
Appellant-Plaintiff, B.P. Amoco Corporation (Amoco), appeals the trial courts Orders in favor of Appellees-Defendants, Robert Szymanski (Szymanski) and the Lake County Board of Commissioners (Commissioners), with regard to Amocos Complaint to Set Aside Deed and to Quiet Title. * * * Amoco raises three issues in this consolidated appeal, one of which we find dispositive: whether the trial court erred in finding it lacked subject matter jurisdiction under Ind. Trial Rule 12(B)(1) to hear Amocos contest of a tax deed by way of an independent action pursuant to T.R. 60(B). * * *

[B]ased on the Statute and T.R. 60(B), we find that the issuance of a tax deed can be appealed under I.C. 6-1.1-25-406(h) by either an independent action or a T.R. 60(B) motion in the same trial court that issued the original tax deed. Since Amoco filed its appeal by way of an independent action pursuant to T.R. 60(B) in the trial court that issued the original tax deed to the Commissioners, we hold that the trial court erred in finding that it lacked subject matter jurisdiction under T.R. 12(B)(1). Accordingly, we reverse and remand this case to the trial court for further proceedings on the merits consistent with this opinion. * * *
BAKER, J., and DARDEN, J., concur.
Wendell W. Clements v. State of Indiana (5/18/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Today we are called to decide whether a man may be convicted for assisting a criminal because he didnt follow [a police officers] commands to get his wife and leave. We determine that he may not.

Appellant-defendant Wendell W. Clements appeals his conviction for Assisting a Criminal, a class A misdemeanor. Clements presents three issues for review, but because we agree with Clements that the State presented insufficient evidence to convict him of the crime, we need not address the remaining issues. * * *

In Overton [v. State], we found that the deliberate disregard and flight from a police officer could not constitute sufficient a distraction to end in a conviction for assisting a criminal. Here, likewise, we cannot conclude that remaining seated in the Explorer and speaking to Trooper Poole constituted the requisite positive, affirmative act required to convict Clements of this offense. See Dennis, 230 Ind. at 217, 102 N.E.2d at 653-54. Thus, Clementss conviction may not stand. The judgment of the trial court is reversed.
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi on Tuesday, May 18, 2004
Posted to Indiana Decisions

Indiana Decisions - Three from the 7th Circuit Today

In DAVIS, HENRY L. v. CON-WAY TRANSPORTATION CENTRAL EXPRESS (ND Ind., Judge Sharp), Judge Keanne concludes: "There are no issues of material fact that preclude summary judgment on Daviss race discrimination and retaliation claims. For this reason, the district courts decision granting summary judgment in favor of Con-Way is AFFIRMED."

In LU, FRIEDRICH v. OU, DAVID (ND Ill.), a qui tam action under the false claims act, Judge Posner writes, in a 5-page opinion:

The district court initially dismissed the suit, without prejudice, because it found Lus complaint to be incoherent and . . . [was] unable to discern any claims actionable under the False Claims Act. When Lu failed to file an amended complaint, the district court converted its dismissal into one with prejudice, precipitating this appeal. * * *

There is another threshold issue, however. It is whether Lu can bring a qui tam action pro se, as he has attempted to do. The only appellate court to address the issue has held that a pro se relator cannot prosecute a qui tam action, because he is acting as an attorney for the government. United States v. Onan, 190 F.2d 1 (8th Cir. 1951). We agree. The relator is not technically the governments lawyer; but the same policy that forbids litigants, whether they are corporations, or other organizations, or individuals, such as members of a class or shareholders, to be represented by nonlawyers, [cites omitted] is
applicable to qui tam suits. Lu is suing not on his own behalf, but on behalf of the government. * * *

The remaining question is whether, rather than affirm the dismissal of Lus suit with prejudice, we should remand the case to the district court to give Lu a chance to find a lawyer. We think not. The district judge was correct; the complaint is incoherent, even crazy. We cannot imagine a reputable lawyer being interested in taking the case on a contingent basisthe only possible basis, since Lu describes himself as homeless and without a telephone.

The Court also posted today WHITMAN, JEFFREY v. NESIC, VEROLJUB (ED Wis.), where the panel, in an opinion written by Judge Kanne, found no Eight Amendment violation and affirmed the district court.

Posted by Marcia Oddi on Tuesday, May 18, 2004
Posted to Indiana Decisions

Environment - More on Chicago's successful plan to import downstate mud

In April the Indiana Law Blog posted this entry titled "Inspired solution helps both Chicago and East Peoria," based on a NY Times story. Today the Munster Times has its own report, headlined "Pay dirt on a slag field: River sediment to transform Chicago's former U.S. Steel site into park." Some quotes:

[Illinois Lt. Gov. Pat Quinn] unveiled a project on the city's Southeast Side Monday afternoon that takes mud dredged from the bottom of the Illinois River near Peoria and spreads it over the former U.S. Steel South Works site. The Chicago Park District wants to build a 17-acre park on the slag field, but needs to cover the property with fertile soil to make the project a reality. * * *

The project, dubbed "Mud-to-Parks," calls for 105,000 tons of sediment to be dredged from the Illinois River near Peoria, loaded onto 70 barges and shipped 163 miles up the Illinois River to the former U.S. Steel South Works site at 87th Street and Lake Michigan. Once the sediment arrives in Chicago, it is unloaded from the barges and spread on the 17-acre slag heap to a depth of 2 to 3 feet.

Native grasses will be planted once the sediment placement is complete, with the property eventually becoming a lakefront park. The dredging of the Illinois River started in Peoria on April 6. The first barges arrived in Chicago three weeks ago.

The project was the brainchild of John Marlin, an Illinois Department of Natural Resources scientist. Marlin ran a pilot project in 2000 in which sediment dredged from the Illinois River near Peoria was shipped on barges to Chicago and spread on a landfill. Grasses are now growing at that site. Marlin approached Quinn in February 2003 with his idea and a partnership began. "It gives everyone with a brownfield or new industrial site a new option," Marlin said. * * *

Moving the sediment to Chicago by barge, officials said, is the environmentally friendly transportation choice over trucks because, in part, of reduced air pollution and wear and tear on highways. It also saved the Chicago Park District and Chicago taxpayers millions of dollars that would have been used to purchase top soil for the park project, according to Chicago Park District Superintendent Timothy Mitchell.

The soil being dredged and moved to Chicago is mildly contaminated with heavy metals, Marlin said, unlike sediments dredged from waterways in the Chicago area and Northwest Indiana, which contain high levels of toxins. According to Marlin, heavy contaminants settle upstream in narrow waterways and what remains continues downstream toward Peoria, becoming diluted as the river widens. The dredging is expected to be complete in about a month, with the removal of the sediment from the barges ending about two weeks after that, Marlin said.

Posted by Marcia Oddi on Tuesday, May 18, 2004
Posted to Environmental Issues

Law - New York City rewriting building codes

This very interesting municipal law story was published yesterday in the Regional section of the NY Times. Some quotes:

New York City has embarked on the most comprehensive rewriting of its building, fire, plumbing and electrical codes since they were first adopted more than a century ago.

This quiet revolution will alter the city's inner landscape, from life-and-death details like fire sprinklers and the lighting in emergency stairways to mundane matters like allowing homeowners to save money by using plastic pipes for toilets and sinks.

The revisions the most important of which are now being drafted behind closed doors by 13 committees of engineers, safety experts and real estate developers appointed by the Bloomberg administration are not expected to make a radical difference in the way buildings are constructed. But because the codes have effectively been the city's DNA, shaping its appearance and its workings, the changes are likely to affect all the places in which New Yorkers live and work in myriad ways, big and small.

Posted by Marcia Oddi on Tuesday, May 18, 2004
Posted to General Law Related

Environment - Did EPA Rule on Hazardous Waste Favor Ohio Businessman Who Is a Big GOP Donor?

"Fundraiser Denies Link Between Money, Access ," is the title of this very long story yesterday in the Washington Post. A sample:

The Clinton proposal would have required that woven shop towels contaminated with chemical solvents be wrung dry for them to be treated as laundry, not hazardous waste. Last November, the EPA changed its position, adopting a more lenient proposal for the woven towels. Farmer and his industry were overjoyed, because the change promised to save them millions and preserve their advantage over the competition -- paper towels. "It would have been a big problem," Farmer said.

After a series of telephone calls, e-mails, letters and meetings with representatives of the laundry industry, the EPA had provided industrial-laundry lobbyists with an advance copy of a portion of the proposed rule, which the lobbyists edited and the agency adopted.

That same opportunity was not given to the rule's opponents -- environmental groups, a labor union, hazardous-waste landfill operators and paper towel manufacturers who argue their product should be treated as environmentally equal to laundered towels. The opponents say industrial laundries send tens of thousands of tons of hazardous chemicals to municipal sewage treatment plants and landfills where toxics can get into groundwater, streams and rivers. Labor unions contend that the towels expose workers to cancer-causing fumes.

Posted by Marcia Oddi on Tuesday, May 18, 2004
Posted to Environmental Issues

Environment - Wetlands violator faces prison

As reported here in the Indiana Law Blog, on April 5, 2004 the U.S. Supreme Court denied three wetlands appeals, including Rapanos v. United States. As Linda Greenhouse of the NY Times reported the following day:

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.

Now, according to this CNN story, posted 4/30/04:
WILLIAMS TOWNSHIP, Michigan (AP) -- John A. Rapanos has spent more than $1 million on attorneys, consultants and fines while tussling with regulators for some 15 years over accusations of illegal wetland destruction. Now the Midland subdivision developer appears headed for prison in a case highlighting the nationwide debate over the extent of government power to protect privately owned wetlands.

Rapanos was convicted in 1995 of filling wetlands without a permit in mid-Michigan farm country. His case has been on appeal but may have run its course as the U.S. Supreme Court recently declined to consider it. No sentencing date has been set, but the Sixth U.S. Circuit Court of Appeals in Cincinnati earlier recommended a prison term of 10 to 16 months.

Today's NY Times has this story, headlined "Michigan Landowner Who Filled Wetlands Faces Prison." Some quotes:
In some ways, the Rapanos case is a reminder of the resistance to environmental enforcement as a legitimate government function, particularly when it comes to wetlands issues. The definition of what qualifies as wetlands and what wetlands fall under federal jurisdiction has been an issue in numerous court cases.

A Supreme Court ruling four years ago gave developers and property-rights advocates hope that the definitions would be rolled back. But recent appellate court rulings, which the Supreme Court declined to review at the same time it refused to hear Mr. Rapanos's appeal of his conviction, have reaffirmed most of the broad definitions.

Those rulings indicate that a wetland can be regulated if it is connected directly or through tributaries to navigable waters; for instance, if it is adjacent to stream or drainage ditches that feed them.

Federal and state officials decide what is a wetland based, in part, on the presence of water and the types of soil, plants and shrubs that are on the property. Most of the estimated 105.5 million acres in the contiguous United States that are considered wetlands remains on private land, like Mr. Rapanos's.

When Mr. Rapanos, who is 68, was prosecuted in the mid-1990's, criminal cases under the Clean Water Act were rare; most involved the dumping of toxic chemicals or refuse into streams or storm drains. Prosecutions for filling wetlands were rarer still.

Posted by Marcia Oddi on Tuesday, May 18, 2004
Posted to Environmental Issues

Monday, May 17, 2004

Environment - Indiana Ahead of Illinois in Obtaining Shoreland Grants

This story in the Chicago Tribune today, headlined "Illinois missing out on grants: State shuns U.S. shoreline funds," reports:

Illinois is passing up millions of dollars in federal grants that other states tap to preserve beaches, protect wetlands and provide more public access to shoreline recreation.

Mayor Richard Daley's office will join environmental groups Monday in urging Gov. Rod Blagojevich to join the little-known program for coastal and Great Lakes states, more than 25 years after vocal opposition from North Shore property owners persuaded Illinois lawmakers to turn down the money.

Of the 35 states and territories eligible for the Coastal Zone Management program, Illinois is the only one that doesn't participate. Joining the others would provide up to $2 million a year for conservation and restoration efforts along the state's 63-mile Lake Michigan shoreline. * * *

Created by Congress in the early 1970s, the program encourages state and local governments to work together to protect coastal areas. The amount of money each state gets is based on coastal population and the number of shoreline miles.

Indiana will use the money this year to save a Lake Michigan beach, restore a long-neglected wetland and study a shallow nook where fish spawn. Wisconsin is spending some of its share fighting purple loosestrife, a fast-growing invasive weed that chokes native marsh plants. Michigan, one of the first states to join the program, is cataloging plants on islands in the Great Lakes, chipping in to preserve a historic lighthouse and improving lakefront parks.

The Illinois General Assembly rejected the coastal program in 1978 at the behest of W. Clement Stone, the late insurance magnate, and a handful of other North Shore property owners who feared losing control of the lakefront.

At the time, Chicago was pushing for more public access to the lake. Stone and others argued, among other things, that if Illinois accepted money from the program, federal officials would force North Shore property owners to open the beaches in front of their lakefront mansions to the public. Supporters of the program say federal rules are more flexible today to ensure that local governments and property owners still control their lakefronts.

Posted by Marcia Oddi on Monday, May 17, 2004
Posted to Environmental Issues

Law - Three U.S. Supreme Court decisions of interest

According to this posting on Bloomberg News:

May 17 (Bloomberg) -- The U.S. Supreme Court gave consumers a victory in a dispute over how much interest secured creditors can charge on debts in some personal-bankruptcy cases.

The court ruled for an Indiana couple who claimed a lender shouldn't be allowed to charge 21 percent interest on a truck loan as part of their Chapter 13 debt-restructuring plan. The ruling lets the couple seek an interest rate based on the prime lending rate, which was 8 percent at the time of their bankruptcy case in 1999 and now is 4 percent.

This case is TILL et ux. v. SCS CREDIT CORP.

In a second Bloomberg News entry:

May 17 (Bloomberg) -- Former students can go to federal bankruptcy court to seek discharge of state-guaranteed loans, the U.S. Supreme Court ruled, saying sovereign immunity doesn't shield states from those cases.

The court ruled 7-2 against Tennessee's student loan corporation, which argued that it has immunity from a federal bankruptcy case filed by a former college student who seeks to avoid repaying her loan. The justices said the concept of sovereign immunity doesn't apply in bankruptcy cases.

The decision was one of two today rejecting state bids for immunity and refusing to extend a line of rulings that have insulted states from lawsuits claiming age bias, patent infringement and unfair trade practices. The court also ruled today that states can be forced to pay financial damages for failing to make courthouses accessible to the disabled.

The case is Tennessee Student Assistance Corp. v. Hood.

In the third notable opinion issued today, according to this AP story on the NY Times website:

WASHINGTON (AP) -- The Supreme Court upheld the rights of disabled people under a national law meant to protect them, ruling Monday that a paraplegic who crawled up the steps of a small-town courthouse can sue over the lack of an elevator.

The 1990 Americans With Disabilities Act properly gives private citizens such as George Lane the right to seek money in court if a state fails to live up to the law's requirements, a 5-to-4 majority ruled. In previous cases, the high court has repeatedly limited the effect of the ADA, so Monday's outcome was unexpected.

This case is Tennessee v. Lane.

[Update] Here is comprehensive coverage from the Washington Post. And here is 5/18/04 NY Times coverage.

Posted by Marcia Oddi on Monday, May 17, 2004
Posted to General Law Related

Indiana Decisions - Six new opinions posted by the Court of Appeals today

Illinois Farmers Insurance Company v. Gerry & Linda Wiegand, et al. (5/17/04 IndCtApp) [Insurance]
Sharpnack, Judge

In summary, we hold that the trial court did not err by granting Insurers motion for partial summary judgment and finding that the ATV is a motor vehicle as defined in the Policy. We also hold that the trial court erred by granting the Defendants cross-motion for summary judgment and finding that the Policy did not exclude the Slaughterbecks negligent supervision claim.

For the foregoing reasons, we affirm the judgment of the trial court finding that the ATV is a motor vehicle under the Policy, and we reverse the judgment of the trial court finding that the Slaughterbecks negligent supervision claim is covered under the Policy. Affirmed in part and reversed in part.
MATHIAS, J. and VAIDIK, J. concur

Christopher Moultry v. State of Indiana (5/17/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
[Defendant Moultry] appeals the denial of his motion to suppress evidence of cocaine and handguns found in his car. Moultry asserts the evidence supporting the charges was obtained pursuant to an investigatory stop conducted without the reasonable suspicion required by the Fourth Amendment. * * *

When significant aspects of the anonymous informants prediction are verified, there is reason to believe not only that the anonymous informant was honest, but also that the anonymous informants information is sufficiently credible to justify an investigatory stop. Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind. 1997) (citing Alabama v. White 496 U.S. 325, 332 (1990)). The anonymous tip received on July 12, 2002, in conjunction with the information police obtained from Harris and the vehicle registration and prior criminal record information on Moultry obtained by Officer Shaughnessy, provided reasonable suspicion to support the stop of Moultrys vehicle. Based on the totality of the circumstances of Moultrys stop, we find no error in the trial courts denial of his motion to suppress evidence. Affirmed.
BAKER, J., and NAJAM, J., concur.

RMJ Enterprises v. Scottsdale Insurance Company (5/17/04 IndCtApp) [Insurance]
Sharpnak, Judge
RMJ raises one issue, which we restate as whether the limit of coverage on the insurance policy provided to RMJ by Scottsdale was $135,000 or $270,000. * * * If the policy was issued without the handwritten revisions, then the policy could be read to provide for $135,000 in coverage for the approved roof, frame bldg., owner occupied as office and for $135,000 in coverage for the upstairs apartment for a total of $270,000 in coverage. However, if the policy was issued with the handwritten revisions, then the policy unambiguously provides for $135,000 in coverage for the approved roof, frame bldg., owner occupied as office & apt. Consequently, we conclude that there are genuine issues of material fact that preclude summary judgment in this case. For the foregoing reasons, we reverse the trial courts grant of summary judgment to Scottsdale and remand for proceedings consistent with this opinion.
MATHIAS, J. and VAIDIK, J. concur
Joseph T. Gaerte v. State of Indiana (5/17/04 IndCtApp) [Criminal Law & Procedure]

George D. Adams, et al. v. George H. Rinaker, et al. (5/17/04 IndCtApp) [Real Estate]
May, Judge

MAY, Judge
[Adams], owners of a driveway easement, appeal the order of the Johnson Superior Court granting judgment on the pleadings for [the Reinaker defendants], who own properties subject to the easement and use it to access their properties. Adams argues on appeal there are questions of fact concerning whether the parties to the conveyance of the easement contemplated use by multiple, concurrent subsequent owners when the language in the deed indicates Adams and Adams successors and assigns would bear all the cost of repair and maintenance. * * * We reverse the decision of the court below and remand for further proceedings consistent with this opinion.
NAJAM, J., and BAKER, J., concur.
Ralph Herron v. State of Indiana (5/17/04 IndCtApp) [Criminal Law & Procedure]
May, judge
Ralph Herron was convicted after a jury trial of aiding, inducing, or causing voluntary manslaughter, a Class A felony. He raises two issues on appeal, which we restate as: (1) Whether testimony by the principal that Herron, who has no legs or hands and only one arm, participated in the killing was sufficient evidence to support his conviction; and (2) Whether Herrons sentence was inappropriate. * * * The evidence supporting Herrons conviction was not incredibly dubious and Herron did not show his sentence was inappropriate in light of his character and the nature of his offense. Accordingly, we affirm.
SHARPNACK, J., and BARNES, J., concur.

Posted by Marcia Oddi on Monday, May 17, 2004
Posted to Indiana Decisions

Indiana Decisions - Four from the 7th Circuit Today

In CORPORATE ASSETS INC v. PALOIAN, GUS A. (ND Ill., Bankruptcy), Judge Rovner writes:

At an auction sanctioned by the bankruptcy court, Corporate Assets, Inc. (CAI) submitted the high bid for assets belonging to the debtors, but its apparent victory proved short-lived. A higher, upset bid tendered to the debtors after the close of the auction convinced the debtors, with the bankruptcy courts approval, to reopen the bidding. CAI won the second auction with a bid $352,500 higher than its original bid. CAI appealed the bankruptcy courts decisions to reopen the bidding and to confirm the sale to CAI at the higher price established by the second auction. The district court affirmed. In re GGSI Liquidation, Inc., 280 B.R. 425 (N.D. Ill. 2002). CAI has now appealed to this court, contending that the bankruptcy court abused its discretion in allowing a second auction and in refusing to confirm the results of the first auction. We also affirm.
The Court also posted these decisions today: MOORE, ALLAN v. MOTE, STEPHEN (CD Ill., habeas corpus writ denied); MOORE, FRANK v. CONNER, N.L. (ND Ill., criminal procedural issues); WOODWARD, HARRIETT G v. CORRECTIONAL MEDICAL SERVICES (ND Ill., upholds verdict against CMS).

Posted by Marcia Oddi on Monday, May 17, 2004
Posted to Indiana Decisions

Law - Michigan Court gives lakeshore landowners rights to water's edge

This 5/15/04 AP story in the Grand Rapids Press reports:

LANSING -- Michigan property owners who live along the Great Lakes shoreline have exclusive access up to the water's edge, the state appellate court said in a decision published Friday.

The unanimous decision could affect where people are allowed to walk along private, waterfront property they don't own. The issue has been a contentious one in recent years because of the Great Lakes' relatively low water levels.

The Michigan Court of Appeals ruled a person has the right to walk along private property as long as they remain in the water. But where dry land begins, the property owners have exclusive rights. * * *

"We have said all along that we own up to the water's edge, and this decision confirms for modern times what the courts have repeatedly said since 1930 and before," said Ernie Krygier, president of Save Our Shoreline Inc., a nonprofit group committed to preserving waterfront areas.

Krygier's organization said the appellate court decision calls into question the assertion by the state Department of Environmental Quality that the boundary between public and private land is the ordinary high-water mark.

DEQ Deputy Director Skip Pruss disagrees. He said the ruling reinforces law that says property owners have exclusive rights up to the water's edge.

But the decision does not change the fact that the state holds title to the land up to the high-water mark, he said. That prevents property owners from interfering with public use of navigable waters, Pruss said.

The case is Glass v. Goeckel (5/13/04), which begins:
Plaintiff, a neighbor of defendants, asserts that as a member of the general public, she has the right to navigate and walk across those portions of the shore and waters of Lake Huron lying below and lakeward of the natural ordinary high-water mark, free from obstruction or interference by defendants. Defendants argue that their property rights extend to the waters edge, and that plaintiff could not walk beyond the waters edge and onto their property. The trial court held that plaintiff was entitled to freely traverse the shore of Lake Huron lying below and lakewards of the natural ordinary high water mark as specifically defined in MCL 324.32502. We conclude otherwise, and therefore reverse the trial courts order granting plaintiffs motion for summary disposition and remand for entry of an order granting defendants motion for summary disposition.

Posted by Marcia Oddi on Monday, May 17, 2004
Posted to General Law Related

Indiana Law - Economic Development and the Indiana Governor

Introduction. This entry, an opinion piece, has two parts. Part I looks at the problems with the 2003 Indiana Economic Development Corporation law (IEDC) that I pointed out last fall, and asks -- have they been corrected? Part II explores the authority, or lack of authority, the governor elected this fall will have over Indiana economic development, as the law now stands.

Part I. Have the problems with the 2003 Indiana Economic Development Corporation law been corrected?

What are the problems? Briefly, as I outline in my 2003 paper, "Maintaining the Balance of Power Between the Legislative and Executive Branches of Indiana State Government, Post 1941," available here, the Indiana constitution grants to the Governor both the power to execute the laws, and the appointing power for the executive branch of government. The general assembly may not take that power for itself, nor give it to another (including to another member of the executive branch such as the auditor or lieutenant governor), or to an outside entity, such as a university president. The article concludes:

The balance of power between the legislative branch and the executive branch has been an on-going debate in Indiana since at least the time of the landmark [Indiana supreme court decision, Tucker v. State,] in 1941. In the 2003 enactment of a statute creating the [Indiana Economic Development Corporation], the legislature has again attempted to exert additional influence over functions of the executive branch. Despite the general assemblys desire to enhance economic development opportunities for the State, it appears that the statute is susceptible to constitutional challenge. The clear language of the Indiana constitution regarding the separation of powers, and the history of its interpretation by Indiana courts, suggest that the general assembly may need to consider another approach.
As I outlined in the introduction to the paper:
Under article 3 of the Constitution of the State of Indiana, members of the legislative department of Indiana government may neither serve in the executive department, nor appoint others to do so. * * * Under article 5 of the Constitution of the State of Indiana, the executive power of the State is vested in the governor, who shall take care that the laws are faithfully executed. Yet the general assembly has in past years placed responsibility for the States economic development in another official in the executive branch, the lieutenant governor. And by its 2003 action, the general assembly has enacted legislation that will shift this executive authority once again, this time to a newly created entity outside state government, the Indiana economic development corporation (IEDC).

The Indiana economic development corporations twenty-three member board will be appointed in large part by the general assembly. As a result, this newly-created entity may be subject to challenge on the basis of the separation of powers provision in the Indiana constitution. The Indiana supreme courts historic 1941 ruling of Tucker v. State, and its progeny, define the role of the governor and prohibit the Indiana general assembly from encroaching upon the executive branch of state government by appointing its own members to perform executive functions or by enacting laws that dilute the powers of the governor.

What has been done to correct these problems? The Indiana Economic Development Corporation law was created by P.L. 224-2003, Sec. 260. The law may be accessed here. As discussed beginning on page 23 of my paper:
The IEDC is to be governed by a twenty-three member board, none of whom may be members of the general assembly. However, a total of twelve of the members of the board are to be appointed by the leadership of the General Assembly. Seven of the members are to be appointed by the seven presidents of the seven state universities. Of the remaining four members, three are to be appointed by the governor. The other is to be the lieutenant governor, who is to serve as chairperson of the board, but has no other specified authority. * * *

In Book [v. State Office Bld'g Comm.], the court found unconstitutional the provision that legislative members serve on the state office building commission, saying that no member of the legislature ... is eligible to serve as a member of the Commission. Perhaps as a result, in its 2003 act the general assembly has specifically stated that none of the twenty-three members of the IEDC board, including the twelve members to be appointed by the general assembly, may be legislators. However, the court in Book also said that the legislative power is the power to make laws, not to enforce them or appoint the agents charged with their enforcement.

Despite the fact that quasi-public entities have been created by the general assembly in the past, none except Book has posed a challenge to the separation of powers approaching that presented by the new IEDC act. The governor does not have a seat on the IEDC board; the lieutenant governor is named in the act as the chair of the board, but is given no other authority.

Resolving the Constitutional Defects. The answers to the issues posed by the department of commerce law are straightforward. The constitution vests the executive power of the State in the governor, who has the obligation to see to the execution of the States laws. Certainly, a governor may elect to delegate certain responsibilities to the lieutenant governor, such as directing the department of commerce. But that is the governors prerogative, not that of the general assembly. Any laws to the contrary should be changed. * * *

[A]s in Book, the corporation here is charged with implementing the laws enacted by the general assembly, an executive function, not a legislative one. The general assembly does not have authority under the constitution either to make appointments in the executive branch or to authorize anyone other than the governor to do so. The resolution to the immediate problem posed by the IEDC legislation, therefore, would be to amend IEDC law to move the appointing authority from the General Assembly and the university presidents to the governor.

The general assembly did act, in the 2004 session, to correct the appointment problem. It enacted into law HEA 1438 (P.L. 63-2004, effective July 1, 2005), which amends IC 4-1.5-4-2 to increase the governor's "appointees" from the current 3 to 15, by moving the 12 appointments that currently are to be made by the leadership of the house and senate. (This change takes effect July 1, 2005.)

As amended, however, the IEDC continues to impose a number of restrictions upon the governor's appointment power. The revised law provides that: "The governor shall consider the recommendation of the speaker [house minority leader/president pro tempore/senate minority leader] when making" four of the twelve appointments previously made by the legislative leadership.

The language giving seven appointments to the seven heads of the seven state universities also has been changed. Now it reads: "Seven persons to be appointed by the governor who must be employed in or retired from the private or nonprofit sector or academia, on recommendation of the following: (A) the president of Indiana University. (B) ***." [emphasis added]

So the question now is, do these changes remove the constitutional defect, or do they continue to unconstitutionally limit or restrict the governor's appointing authority? What happens if the governor ignores the recommendations of the legislative leaders or university presidents?

Problems that were not addressed by the 2004 amendments. Unaddressed problems with the 2003 IEDC law include the following:

(1) IC 4-1.5-4-5 provides that the lieutenant governor shall serve as chairperson of the board. However, I would argue that designation of the chair should be the prerogative of the governor, not the general assembly.

(2) The current members of the board, appointed by the general assembly and the university presidents, are to continue in office under the law until July 1, 2005 (IC 4-1.5-4-4), six months into the term of governor elected in November of 2004.

(3) Appointees in the executive branch generally serve at the pleasure of the governor, or are removable for cause. Under the IEDC law the governor is not granted even the authority to remove members for cause -- see IC 4-1.5-4-4.

(4) The 2003 IEDC law, as now amended, may not be the optimal way to meet the general assembly's purpose:

The 2003 IEDC law was enacted because of dissatisfaction with the States progress in the economic arena. Creating a new entity to develop and execute statewide economic policy, removed from the existing state bureaucracy and shielded from partisan political control was the approach selected by the 2003 general assembly in order to bring a new level of professionalism and sophistication to Indianas economic development activities. Oversight of the organization [is to] be provided by a twenty-three member, bi-partisan board designed on the principle of building a strategic alliance between the public, private, and academic realms.
Phrased another way, the law moved the economic development responsibility away from the elected governor, and away from state government as constitutionally structured, and gave it to a quasi-public authority, dissolving any direct lines of authority to the voter. Now that, through the efforts of the 2004 general assembly, the governor's appointment authority has been reinstated, perhaps the modifications could be completed by placing the department of commerce directly under the responsibility of the governor, as Tucker requires.

Part II. What authority will the governor elected this fall have over Indiana economic development, as the law now stands?

HEA 1001 of the 2003 session, at SECTION 263 (on page 238 of the bill), transfers the state department of commerce, except for energy policy, tourism and community development, to the Indiana economic development corporation, effective July 1, 2005. So where does all this change leave the newly elected governor?

As the law now stands, economic develpment is to be moved under the control of the IEDC, a quasi-governmental agency which is chaired by the lieutenant governor, and whose hold-over membership until at least July 1, 2005 consists of the appointees of the general assembly and the university presidents. The governor does not even have a seat on the board.

Although the newly elected lieutenant governor is also to head the department of commerce, a state agency, as of July 1, 2005 much of the agency will by law be transfered, lock, stock and barrel, outside of state government and to the new IEDC. Employees of the IEDC will NOT be state employees (not unlike the bureau of motor vehicles license branch system setup).

Interestingly, one candidate for governor appears to have signaled last week that he intends to pursue a different course than that outlined above. On Thursday (5/13/04), according to this story in the Louisville Courier-Journal, Mitch Daniels, Republican gubernatorial candidate, said:

that if elected, he would name a Fort Wayne businesswoman to fill a new post overseeing the key state agency trying to reverse Indiana's job losses.

Patricia Miller, co-founder of a company that makes luggage, handbags and apparel, would become Indiana's first-ever secretary of commerce if Daniels defeats Democratic incumbent Joe Kernan in the November election, Daniels said yesterday.

The Department of Commerce is overseen by the lieutenant governor currently Kernan's running mate, Kathy Davis with day-to-day management falling to an appointed executive director, Tim Monger.

While overseeing policy for trade and economic development, the lieutenant governor also travels the state to attend jobs-creation announcements, serves as commissioner of agriculture and presides over the Senate in a mostly ceremonial role.

Daniels said he was still working out details of his plans for a secretary of commerce including how much Miller would be paid and said the change likely would involve modifying state law and seeking approval from the General Assembly.

And here is a report from the Fort Wayne Journal Gazette:
The co-founder and president of Vera Bradley Designs has been tapped to market economic development for Indiana in a possible Mitch Daniels administration. * * * Daniels, the former White House budget director, won the Republican gubernatorial primary last week and will face Democratic Gov. Joe Kernan in the November general election. Daniels said Wednesday that if he's elected he will create a new Cabinet position, secretary of commerce, and name Vera Bradley co-owner Patricia Miller to the post.

Miller would be the highest-ranking person in Daniels' cabinet, he said, and the "chief operating officer of our economic development initiatives." "She can help me sell Indiana to business leaders across the country," Daniels said. "She can help existing companies to grow and inspire the formation of more new ventures."

Currently, the lieutenant governor is in charge of the state's economic development initiatives. Last August, Daniels told The Journal Gazette he would reassign that responsibility to the governor's office.

Kernan campaign spokesman Scott Downes said he doesn't understand why Daniels would first say he was taking over economic development himself and then create a new post to handle the issue. "It raises questions on how the structure would work and who's responsible for what," Downes said.

Phil Laux, president of the Greater Fort Wayne Chamber of Commerce, said shifting the economic development responsibilities to the governor would allow the lieutenant governor to focus on the chief executive's legislative agenda while presiding over the state Senate. "From a structural standpoint, I think it is a good move for the state, regardless of party affiliation," Laux said. "I think it's a bold move, but I think it's a good move."

What legislative changes are needed? The constitutional responsibilities of the lieutenant governor are to preside over the senate and to be prepared to succeed the governor, if necessary. The governor is granted the executive authority, and the general assembly may not by law transfer this authority to other state officials, although the governor may delegate responsibilites. The IEDC law should be replaced with a law creating a new state department, under the governor. In addition to centralizing commerce and economic responsibilities within the executive, the law should get a handle over the many diverse laws and entities in this area (see here, for example) that have been created over the years.

Posted by Marcia Oddi on Monday, May 17, 2004
Posted to Indiana Law | Indiana economic development

Sunday, May 16, 2004

Indiana Law - Dead Lake County residents cast 2003 ballots

"Dead Lake residents cast 2003 ballots." That is the headline to this lengthy story today in the Munster Times. I am as shocked as this lady:

"I'm stunned," said Sally LaSota, director of the Lake County Board of Elections and Registration. "I can't imagine someone going in there and voting these people." * * *

A monthlong Times analysis of voting records and Social Security death records found thousands of registered voters who remain on the rolls despite their deaths. Cross-referencing the two computer databases revealed the names of 51 people with the same name and birth date who voted postmortem. Further examination ruled out dozens of errors but confirmed at least five dead votes, only one of which could be explained. * * *

[Cam Savage, spokesman for the Secretary of State's office] estimated that all voter lists in Indiana are inflated by about 20 percent, and LaSota has said there are probably 50,000 names in Lake County's database of nearly 370,000 that should be purged. The county rolls even include 85 people listed as born in the 1800s. That's plenty of opportunities for someone to pose as a moved or deceased voter.

Absentee votes present a special challenge, Savage said, because ballots can be requested and returned through the mail without face-to-face contact with neighborhood poll workers.

The Indiana Supreme Court currently is considering George Pabey's absentee-based challenge of last year's East Chicago mayoral primary against Robert Pastrick. In the disputed election, Pastrick lost at the polls by 199 votes, but won the election after absentee ballots gave him a 278-vote margin. LaPorte County Superior Court Judge Steven King in August called the election "a textbook example of chicanery" and threw out 155 votes, leaving Pastrick with a 123-vote majority. * * *

State Rep. John Aguilera, D-East Chicago, said corrupt political operatives in the county are usually too careful to use dead voters. Instead, they prey on indigent or elderly voters or they use nonresident voters -- all of which are more difficult to catch than ghost voters.

Merrillville resident Samuel Minton said the thing that bothered him most was that his late wife Cynthia didn't visit him when she voted. He said he can joke about it now because six years have passed since her death. "She voted from heaven if it's the same Cynthia," Minton said. "She came down and voted and didn't even stop in to say hello."

Posted by Marcia Oddi on Sunday, May 16, 2004
Posted to Indiana Law

Indiana Law - 2004 Indiana Environmental Statutes Available for Pre-Order

For details, check here.

Posted by Marcia Oddi on Sunday, May 16, 2004
Posted to Indiana Law

Indiana Law - Reminder: Supreme Court to mark anniversary of Brown v. Bd. of Education

Tomorrow, Monday May 17th, 2004, is the 50th anniversary of Brown v. Board of Education. Our Supreme Court will mark the anniversary starting at 10:00 a.m. in the Supreme Court Courtroom. Access this earlier entry for details.

Posted by Marcia Oddi on Sunday, May 16, 2004
Posted to Indiana Law

Law - Watch Justice Rehnquist interview, with Brian Lamb

Highly recommended. Per C-Span 2: "Chief Justice Rehnquist as Author.
Book TV's Brian Lamb interviews William Rehnquist on his book Centennial Crisis: The Disputed Election of 1876 - that between Rutherford Hayes & Samuel Tilden." I saw this Saturday evening and may watch it again tonight - the interview is not limited to the 1876 election dispute. It is being repeated tonight on C-Span 2 at 8 PM Indianapolis time (Eastern Standard Time). Read more here.

Posted by Marcia Oddi on Sunday, May 16, 2004
Posted to General Law Related

Saturday, May 15, 2004

Indiana Law - California to follow Indiana's lead?

An LA Times report today starts with this headline: "Budget Seeks 75% of Awards for Damages: Governor hopes system being tried in eight other states will curb shortfall with money from lawsuits. But experts call proposal too optimistic." Some quotes:

SACRAMENTO The trial lawyers say it is a horrible idea, but Gov. Arnold Schwarzenegger wants taxpayers to stake a claim to some of the whopping awards juries slap against negligent carmakers, deceptive cigarette companies and fast-food restaurants that serve coffee too hot.

In a proposal that took the Capitol by surprise, Schwarzenegger is suggesting the state collect 75% of the punitive damages awarded in civil lawsuits filed in California. After all, the governor says in the revised budget plan he released Thursday, plaintiffs in civil lawsuits already get a separate award to compensate them for their injury or loss.

"Punitive damages were never meant to be windfalls" for those who file lawsuits, said Richard Costigan, the governor's legislative affairs secretary. "They are meant to punish the defendants. Society as a whole is impacted by those actions . How does it benefit everybody when one plaintiff gets $100 million?"

Costigan says the money should go to the public good like closing California's multibillion-dollar budget gap. The administration suggests that the state could rake in $450 million through this maneuver, although legal scholars who have done the math say that may be wishful thinking.

Trial lawyers say the whole idea is a mistake. "The reason the award goes to the plaintiff is to incentivize the bringing of the lawsuit," said Jim Sturdevant, president of the Consumer Attorneys of California. "The plaintiff is the person who takes the risk involved." * * *

Alaska, Georgia, Illinois, Indiana, Iowa, Missouri, Oregon and Utah already collect as much as 75% of punitive awards as Schwarzenegger is proposing for California. Even though Ohio does not have such a law, judges there recently decided on their own to give one-third of a $27.5-million punitive award minus attorneys fees to a public university's cancer research fund.

Some of the states have had their statutes in place since the mid-1980s. But there is little information on how much fiscal relief the laws have generated. Academics say that's because many of them were not intended to bring in money for the state but to discourage excessive lawsuits. Only a few studies of the laws have been published and they suggest no reduction in cases.

"Most states that have these don't say explicitly their goal is to raise revenue," said Catherine Sharkey, a law professor at Columbia University. "There have been problems with these funds in some states. In some cases, the courts didn't even know the state had them. Damages would come in, and no one would notify the state."

And what of Indiana? Indiana's punitive damages allocation statute, IC 34-51-3-6, provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. This law was enacted in 1998. The law was challenged and upheld by the Indiana Supreme court in the case of Cheatham v. Pohle (5/30/03). Access the Indiana Law Blog coverage of the opinion here. The 7th Circuit recently relied on Cheatham in its opinion in Juarez v. Menard, Inc. (April 2004). See Indiana Law Blog coverage here. A quote from the 7th Circuit opinion:
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.
The Indiana Supreme Court also ruled, in the case of Stroud v. Lints (6/25/03), issued a few weeks after Cheatham, that "the amount of punitive damages awarded by a trial court is subject to appellate review de novo." In Stroud the Court remanded "so that the trial court may enter an award of punitive damages in an amount reflecting proper consideration of the defendants financial status."

Two points. First, Gov. Schwarzenegger's proposal, to use a law like Indiana's as a way of turning the assessment of punitive damages into a revenue raising measure, would seem to encourage the continuation of massive damages assessments; the larger the award, the more money for the State's general fund. Gov. Schwarzenegger's business backers may not be happy with his proposal.

Second, if you have read this far, I would refer you also to this Nov. 29, 2003 Indiana Law Blog entry, titled "Punitive Damages, Bedbugs, and the 7th Circuit." The case is Mathias v. Accor Economy Lodging. A quote from Judge Posner's opinion:

A defendants wealth is not a sufficient basis for awarding punitive damages. That would be discriminatory and would violate the rule of law, as we explained earlier, by making punishment depend on status rather than conduct. Where wealth in the sense of resources enters is in enabling the defendant to mount an extremely aggressive defense against suits such as this and by doing so to make litigating against it very costly, which in turn may make it difficult for the plaintiffs to find a lawyer willing to handle their case, involving as it does only modest stakes, for the usual 33-40 percent contingent fee.
Although Judge Posner here is discussing the ratio of punitive damages to compensatory damages, he seems to be on the same track as some of the trial lawyers in the LA Times story, who argue that the "reason the award goes to the plaintiff is to incentivize the bringing of the lawsuit." If 75% of the "incentive" award goes to the State, then awards might need to be that much higher. Otherwise the case will not be brought (as no plaintiff's attorney will finance it) and the state treasury will be no better off.

[Update 5/17/04] See this story today via Law.com, titled "California's Governor Wants State to Pocket Punitives."

Posted by Marcia Oddi on Saturday, May 15, 2004
Posted to Indiana Law

Environment - Poisonous atmosphere in Greene County Courthouse

WTHI, ActionNews10, Terre Haute, is reporting today that:

An attempt to get the lead out of a southern Indiana courthouse winds up closing down some offices. Parts of the Greene County Courthouse shut down over worries about lead contamination. The $10,000,000 courthouse construction project in Bloomfield has been full of problems since it started.

Action 10 News discovered more worries about the work there led some employees to get out of the building. The Greene County Courthouse construction project had been stalled for more than a year, but earlier this month work resumed. When a crew came in to start taking out some lead contaminated areas, however, employees became worried. Even though crews closed off the area, workers behind the curtain were wearing masks and suits, but not all the dust was staying inside.

"It concerned me enough, I notified the court employees if they felt unsafe or insecure we should go home, and they chose to go home," said Greene Superior Court Judge Pro-tem Joe Sullivan.

[Update 5/18/04] The Linton Daily Citizen reports today that "work continues on courthouse." Some quotes:
Workers from LEPI Enterprises were back to work at the Greene County Courthouse this morning after some controversy about the lead abatement work they were doing Friday. The Indiana Department of Environmental Management Services were called when concerns were raised about a sign cautioning about lead.

John L. Clevenger of IDEM met with Jim Corey, project manager for the courthouse renovation project, and representatives from Weddle Brothers and LEPI Enterprises on Friday after his inspection. "He gave me a verification of inspection. No violations were discovered with respect to the particular items observed during the inspection. We are just fine," said Corey.

Clevenger noted he was inspecting for asbestos and not lead. "The lead rules don't apply because the courthouse is not target housing or child occupied," explained Clevenger. As for the asbestos concerns, Clevenger was pleased to know that LEPI Enterprises is an Indiana licensed asbestos abatement contractor. * * *

The amount of dust generated by the work was an area that Clevenger did make a suggestion to the contractors. "Out of a courtesy to the courthouse employees they need to seal up the area better," said Clevenger. Corey said the inspection confirmed that the work being done was "well within the IDEM's specifications."

Posted by Marcia Oddi on Saturday, May 15, 2004
Posted to Environmental Issues

Friday, May 14, 2004

Indiana Decisions - One Court of Appeals ruling posted today

John F. Csicsko, M.D., et al. v. John Hill, et al. (3/24/04 IndCtApp MEMORANDUM DECISION - NOT FOR PUBLICATION) [Medical Malpractice]
Robb, Judge

Because we hold the trial court did not err in finding that the Release executed between the Hills and the Fund did not release the physicians from liability, and the trial court did not err in refusing to find that the Hills received the maximum amount allowed under the Indiana Medical Malpractice Act, we affirm the trial courts decision.
Note: I'm looking into why this unpublished opinion from March 24th was posted today - check back for the answer.

Here we go. This from the docket to the case:

5/13/04 ****** ABOVE ENTRY MAILED ******

Posted by Marcia Oddi on Friday, May 14, 2004
Posted to Indiana Decisions

Indiana Decisions - Three 7th Circuit decisions posted today

HADLEY, SEAN L. v. WILLIAMS, HILDA (ND Ind., Judge Lee) Judge Posner writes the opinion for a panel including Wood and Williams:

In this suit for damages under 42 U.S.C. 1983, Sean Hadley claims that an Indiana police detective named Hilda Williams caused him to be arrested in violation of his Fourth Amendment rights. The district court granted summary judgment in favor of the defendant, and Hadley appeals. We construe the facts as favorably to him as the record permits, as we are required to do when an appellant is challenging the grant of summary judgment against him. * * *

Summary judgment should not have been granted. The judgment is reversed and the case remanded for further proceedings consistent with this opinion. The principles on which we reverse are well settled, which precludes a defense of qualified immunity.

Also today: DESIGNER DIRECT INC v. DEFOREST REDEV. AUTHORITY (WD Wis., calculation of reliance damages); LUCAS, WILLIAM L. v. CTA (ND Ill., civil rights).

Posted by Marcia Oddi on Friday, May 14, 2004
Posted to Indiana Decisions

Environment - Coal ash editorial; open burning issues

Coal ash. "Clearer rules needed on coal ash dumping," is the lead editorial today in the Indianapolis Star.

Open burning. "State may monitor ammo plant fires: Recent spike in lead levels within air quality standards," is the headline to this story today in the Louisville Courier Journal. A quote:

The burning of contaminated buildings at the former Indiana Army Ammunition Plant last winter did not violate air-quality standards, according to a new state study. But the Indiana Department of Environmental Management, which did the study, said more monitoring may be done for future burns. And an agency administrator said the Army could be required to do a more thorough clean-up of the buildings depending on the level of contamination before setting fire to them.
[Update 5/15/04] This story today in the Marion Chronicle-Tribune is headlined "IDEM halting training burns: Abandoned property burning could be bad for air quality." Some quotes:
The Indiana Department of Environmental Management is limiting the number of abandoned properties the city of Marion may burn legally, complicating the city's efforts to get rid of blighted houses. Open burning is restricted under state law, including for fire departments like Marion's that uses the controlled burning of abandoned or rundown houses for fire training.

Amy Hartsock, an IDEM public information officer, said the restriction on open burns is because of concerns about poor air quality. "What we want to do is start working more closely with the fire departments to make sure their training needs are met, but at the same time that these burning activities are not excessive," Hartsock said. * * * Hartsock said IDEM would probably limit the city to three or four houses a year.

Here is an IDEM press release from 5/13/04 on its push to curb open burning.

Posted by Marcia Oddi on Friday, May 14, 2004
Posted to Environmental Issues

Indiana Decisions - Transfer list for week ending May 14, 2004

Here is the Indiana Supreme Court's transfer list for the week ending May 14, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, May 14, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - Lake County reassessment and vote fraud cases updates

Reassessment. Following up on the Lake County reassessment ruling and resultant turmoil (see ILB entries here, here and here, for instance) is this story today in the Gary Post-Tribune, reporting that:

INDIANAPOLIS The state Supreme Court moved quickly to hear the Miller Beach case. A day after Attorney General Steve Carter filed a motion asking high court to hear the case, the Supreme Court issued a ruling late Thursday telling both parties to file briefs by 4:30 p.m. Tuesday. * * *

The Supreme Court limited to two briefs those opposing the attorney generals petition. The court gave Pete the right to file a brief, but said no extensions would be allowed. Attorneys for the major industries were faxed copies of the order, as were attorneys for the cities of Hammond and East Chicago, which joined with the Miller residents.

The attorney generals office had filed a motion Wednesday asking the Supreme Court to dissolve Petes injunction and instead decide whether Pete had jurisdiction to hear the case or whether the case should go through the state Tax Court.

The Munster Times reports here today:
The Indiana Supreme Court has stepped into Lake County's property tax crisis and may decide on the matter as early as next week.

A swift conclusion to the situation would help county agencies since the Indiana Bond Bank told all county public entities this week it cannot lend them anymore money -- an option the county, and many municipalities and school districts were counting on to tide them over until the property tax dispute was resolved.

The case is State of Indiana ex rel. The Attorney General v. Lake County Superior Court (45-S-00-0405-OR-00204). The Attorney General filed a petition for writ of mandamus and prohibition on May 13th; the Supreme Court issued the following order on May 13th:
Lake County vote fraud. This story today in the Gary Post-Tribune (remember, the Trib does not archive its stories) reports:
HAMMOND Federal investigators showed signs that they are probing the 2003 East Chicago mayoral primary. FBI agents and state police detectives attached to the U.S. Attorneys Public Corruption Task Force interviewed Byron Florence at the North Township Trustees Office on Wednesday in Hammond. Florence was one of the people who provided evidence of massive vote fraud to attorneys for former City Councilman George Pabey. Some of what he uncovered was used in Pabeys court challenge of his narrow loss to Mayor Robert Pastrick in the 2003 Democratic primary. * * *

Over the past several years, federal agents have pulled boxes of documents from the office of the trustee and township assessors office in North Township, as part of several on-going investigations.

The state Supreme Court is expected to rule within weeks on whether to overturn the results of Pabey vs. Pastrick, based on information gathered at the trial level by Special Judge Steven King.

U.S. Attorney Joseph Van Bokkelen had been reluctant to join the investigation until late last year, when he said his office will focus on whether any federal laws were violated.

Early this year, Indiana Attorney General Steve Carter and Lake County Prosecutor Bernard Carter launched their own probe into voter fraud in the 2003 election. The attorney general said Tuesday that he has been assured that any information that is gathered in the federal cases, but not used, would be forwarded to his office and Lake County prosecutors for their investigation.

The Supreme Court heard oral arguments on the East Chicago vote fraud case in mid-April. See earlier Indiana Law Blog coverage here, here and here.

Posted by Marcia Oddi on Friday, May 14, 2004
Posted to Indiana Decisions

Thursday, May 13, 2004

Economic development - Iron nuggets plant update

The "iron nuggets plant" issue - whether a plant to process iron ore into nuggets, which can be used in mini-mills, will be built in Indiana (where the mill is and where the environmental permit process is said to be quicker) or in Minnesota (where the ore is) - an ongoing story that has been covered in detail here in the Indiana Law Blog, but not, as far as I've seen, in any of the Indiana papers, is a classic example of a state trying to balance economic development and environmental issues. As reported here today in the Duluth NewsTribune:

ST. PAUL - A bill passed by the Legislature on Wednesday keeps Minnesota in the running for the world's first full-scale iron-nugget-production facility, a top executive for Silver Bay-based Mesabi Nugget LLC said.

The bill, passed by wide margins in the House and Senate, would suspend some state environmental review requirements and allow Mesabi Nugget to modify and use existing air- and water-pollution permits for the closed LTV Mining Co. taconite facilities in Hoyt Lakes. * * *

The Silver Bay pilot plant was developed, in part, with $16 million in state loans from the Iron Range Resources Agency and the Minnesota Minerals 21st Century Fund. But in March, Steel Dynamics announced plans to open the first full-scale production facility in Butler, Ind.

The announcement sent Iron Range lawmakers and Pawlenty's administration scrambling; they believed the technology, developed in Minnesota, would be launched in Minnesota.

But Steel Dynamics said it could get permits and build the plant faster in Indiana, where the environmental review process is easier. The urgency to build the first full-scale plant is being driven by the historic prices unrefined steel, or pig iron, is fetching on the global market. * * *

Earlier this year, as lawmakers sought ways to ease the environmental review process, [Governor] Pawlenty called some of Mesabi Nugget's partners to St. Paul to see what could be done to keep Minnesota competitive. Then he set the commissioners of the Minnesota Pollution Control Agency, the Department of Employment and Economic Development and IRR to work at getting the first plant built here.

It was Rep. David Dill, DFL-Crane Lake, who first floated the idea to build the nugget plant at the shuttered LTV site and modify the still-valid environmental permits for the old taconite mine, which put 1,400 people out of work when it closed in 2001.

The possibility of bringing jobs back to the region -- while launching a technology many believe to be the next revolution in the history of American steelmaking -- was cause for celebration, Dill said after the House approved his bill 128-3. * * *

There are still many hurdles to a done deal, Dill admits, but at least lawmakers did all they could to get the technology launched in Minnesota, he said. Under the legislation, Mesabi Nugget will not be required to complete an Environmental Impact Statement for the plant [Indiana law would not require such a review]. But if permits to build and operate that plant are issued by the MPCA, the permits for the older and more polluting taconite furnaces at the LTV site will be terminated.

The Department of Employment and Economic Development has also agreed to create a tax-free Job Opportunity Building Zone at the LTV site.

The Iron Range Resources board of directors, made up of mostly Iron Range lawmakers, also approved a package of nearly $17 million in financial incentives for the project in April.

There are also transportation advantages -- as the iron ore concentrate needed to make the nuggets would have to be moved via rail to Indiana if the first iron-nugget plant goes there.

"All things being equal, we favor Minnesota, of course," Lehtinen said. His company was still pursuing environmental permits for a full-scale plant at Silver Bay.

For earlier stories, click here, or click Economic Development under the Categories heading in the right column.

Posted by Marcia Oddi on Thursday, May 13, 2004
Posted to Indiana economic development

Indiana Law - It is not just Lake County

Re the continuing property tax crisis in Lake County (see earlier entry here), the Gary Post-Tribune reports today that:

Attorney General Steve Carter on Wednesday asked Judge Robert Pete to allow mailing of Lake County tax bills based on the reassessment, while the state asked the Supreme Court to intervene. Carter called it a crisis in the making for local government, if the tax bills, scheduled for mailing Tuesday of this week, were stalled indefinitely by the on-going court battle. * * *

As part of its case, the Attorney Generals Office filed an affidavit from the Indiana Bond Bank that showed communities in Lake County have taken out $112 million in bonds against future tax revenue to pay 2003 operating expenses because tax bills were delayed by the reassessment. Those bonds come due in June 30, if there is no extension. Another $193 million in bonds were taken out in January by Lake County communities for operating expenses this year. Since then, the Bond Bank has received another $175 million in requests for additional loans from 22 communities and schools in Lake County. Communities need some form of tax money coming in, Carter said. * * *

In a separate motion, the attorney general is asking the state Supreme Court to decide whether the case should go through the normal appeals process through the state Board of Tax Review and on to the Tax Court. The state also filed a motion notifying Judge Pete of its Supreme Court filing. The Indiana General Assembly founded the Tax Court in 1986 to hear these tax cases. That is a principle we have to adhere to, Carter said. * * *

Attorneys for the Miller citizens case contend the law requiring the Lake County reassessment be conducted by an assessing firm rather than township assessors is faulty because it was essentially special legislation. The Supreme Court in 2003 ruled a South Bend annexation law violated the constitutional ban on special legislation.

The issue of what is special legislation is still evolving. It will have to be solved by a future Supreme Court decision, Carter said. The attorney general has never been asked to render an opinion as to whether the 2001 state statute requiring most of Lake County to be assessed by an outside contractor and have the state assess major industries was special legislation. There was a broad consensus that because Lake County was in such a state, that there was a need to do that. We start out with the premise that was properly enacted, Carter said.

Meanwhile, the Marion Chronicle-Tribune is reporting today:
The Grant County treasurer's office is in such disarray that there's money lying on the office floor, Treasurer Mary Stevens told the county council Wednesday.

Stevens is short one worker, and there is no overtime pay available.

The office has been closed since Tuesday and will be shut down until June 1 as workers process property tax payments. Taxes for 2002 were due Monday, and Stevens hopes to have much-needed tax money out to cities, towns, libraries, schools and other taxing units by June 30.

"We cannot possibly keep up," Stevens said. "I have explained this at the council's budget hearings last year. I tried to make my point. ... We've got lots of money laying up there on the floor of my office that cannot be put in the bank, that could be earning interest. We could get this money out to the schools much quicker."

Stevens lost one worker because the council trimmed her 2004 budget as it tried to cut costs and balance the county budget.

"I think we need to get our priorities in order," Stevens told the council before it approved spending $25,000 for a consultant to help with the county's financial problems.

Wednesday night, Councilman Robert Monroe, R-At-Large, pushed for the council to give Stevens $3,000 for help. County Auditor Mike Burton offered to loan Stevens one of his workers in lieu of transferring county funds to hire part-time help or pay overtime.

[Update 5/14/04] Things are looking up in Grant County. This story today in the Chronicle-Tribune reports that:
After County Council hedged on giving Stevens the $3,000 she requested at Wednesday night's meeting, Recorder Judy Solms stood up and said she would like to help. "I've got more part-time money than I can use," Solms said Thursday. She has $5,000 in her part-time fund but isn't facing any urgent deadlines. Stevens and staff, on the other hand, are under the gun. * * * Wednesday night, Solms offered to let Stevens use $3,000. Although Council didn't vote on the matter, that is what Stevens intends to do. "I will have someone in here by Monday," she said Thursday afternoon, adding that she plans to get in touch with two people who have worked in the office in the past. "They'll help just to get us through this mail situation."

Meanwhile, Stevens has already received some relief. Her office, which essentially is closed to the public through June 1 to give staff time to process bills, had two extra bodies behind the counter Thursday. One of them was a volunteer. The woman, who wouldn't give her name, said she's volunteering "because I want to see the county get back in the black." "I'm not doing it for publicity," she said.

The story also clarifies its report from the day before:
Although cash money isn't literally lying around, large trays of mail are stacked on the floor in the treasurer's office -- envelopes filled with tax statements and checks. The longer Stevens and employees take to open mail, count money and process bills, the longer government units such as schools, libraries and towns have to wait for their funds, already a year late because of reassessment and other problems.

Posted by Marcia Oddi on Thursday, May 13, 2004
Posted to Indiana Decisions

Indiana Decisions - Six Court of Appeals Decisions Posted Today

Chester D. Green v. State of Indiana (5/12/04 IndCtApp) [Criminal Law & Procedure]
Robertson, Senior Judge

We believe that it is axiomatic that, at a minimum, there must be two verdicts before any question of fatally inconsistent verdicts exists. Since there was only one verdict in this case, Greens argument fails to raise any question for our determination.
Kevin Pettiford v. State of Indiana (5/12/04 IndCtApp) [Criminal Law & Procedure]
Kirsch, Judge
Here, Pettiford challenges the abstract of judgment. Accordingly, the trial court did not err in denying his motion. * * * Thus, even if Pettiford were challenging his sentence and not merely the Abstract of Judgment, his sentence is correct by virtue of the Robinson presumption [i.e. Robinson v. State (3/10/04)]. The trial court did not err.
Gregory S. Kelver v. State of Indiana (5/13/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Riley, Judge
[Issues] 1. Whether I.C. 9-19-10-2, which mandates seatbelt usage by front seat occupants of passenger motor vehicles, violates Article I, Section 23 of the Indiana Constitution; and 2. Whether I.C. 9-19-10-2 violates Kelvers right to substantive due process. * * *

Here, Kelver argues that I.C. 9-19-10-2 grants unequal privileges to certain citizens and subjects other citizens to unequal treatment and unequal burdens. Specifically, Kelver argues that the statutory definition of truck includes no inherent characteristics to distinguish trucks from certain passenger motor vehicles. He offers up the depositions of various LaPorte City police officers and their varying explanations of what constitutes a truck in support of his contention. Kelver contends that those who are expressly exempt from the seatbelt requirement of the statute are granted the privilege of exemption from the corresponding punishment for noncompliance with the statute. However, we find Kelvers argument unavailing. * * * [A]s the law stands, the inherent distinctions between a passenger car and a truck, as determined by the BMV, permit the disparate treatment in the enforcement of Indianas seatbelt law accorded by the General Assembly in I.C. 9-19-10-2 and its supporting definitions. In addition, this preferential treatment is equally available to anyone who owns a motor vehicle that qualifies as a truck and chooses to register and plate the vehicle as a truck. See Collins, 644 N.E.2d at 80. Therefore, we hold that I.C. 9-19-10-2, along with its supporting definitions, does not violate Article I, Section 23 of the Indiana Constitution.

Next, Kelver contends that I.C. 9-19-10-2 adversely affects his right to substantive due process because it infringes upon his right to choose and decide his own well-being and health care. Substantive due process ensures that a state action is not arbitrary or capricious regardless of the procedures used. N.V. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind. Ct. App. 2000), trans. denied. To show a violation of substantive due process, a party must demonstrate that the challenged law infringes upon a fundamental right or liberty deeply rooted in our nations history or that the law does not bear a substantial relation to permissible state objectives. Id. In particular, Kelver argues that the seatbelt requirement violates his fundamental right to make decisions relating to his own health and welfare. However, we find Kelvers argument without merit. Initially, we note that:
[n]either [the Indiana Supreme Court] nor the United States Supreme Court has ever held that there exists a fundamental right to drive a motor vehicle. While the United States Court has blurred the distinction between right and privilege with respect to driving, that Court did not define driving as a right but rather referred to it as an entitlement. * * * Highway safety is not merely a legitimate state interest; it is a compelling one. Consequently, we find that I.C. 9-19-10-2 is reasonably related to legitimate state interests and, therefore, Kelvers substantive due process challenge must fail.

CONCLUSION. Based on the foregoing, we conclude that: (1) I.C. 9-19-10-2, along with its supporting statutory definitions, does not violate Article I, Section 23 of the Indiana Constitution; and (2) I.C. 9-19-10-2 does not violate Kelvers substantive due process right. Affirmed.
DARDEN, J., and BAILEY, J., concur.

Charles Hughes v. Scott King, et al (5/13/04 IndCtApp) [Civil Procedure]
Najam, Judge
Charles Hughes appeals the trial courts grant of summary judgment in favor of Scott King, et al. (the Appellees). However, we do not address the substantive issue Hughes raises on appeal because his noncompliance with Indiana Appellate Rule 50 precludes our review. We dismiss. * * * Where, as here, a party appeals the trial courts entry of summary judgment, we can only conduct a de novo review if the parties have provided us with a complete copy of the evidence designated to the trial court. Because Hughes has failed to comply with that requirement, we have no basis upon which to review the substantive issue he has raised on the merits.
Tyrone G. Causey v. State of Indiana (5/13/04 IndCtApp) [Criminal Law & Procedure]

Brownsburg Community School Corporation v. Natare Corporation (5/13/04 IndCtApp) [Statutory construction]
Baker, Judge

Specifically, the issue certified in this interlocutory appeal is whether a municipal entity such as a school corporation is a person as defined by Indiana Code section 24-1-2-10, and therefore subject to suit for treble damages and attorney fees under Indiana Code section 24-1-2-7. Concluding that a school corporation is a person within the meaning of the statute, we affirm the order of the trial court. * * *

As discussed above, inasmuch as Brownsburg has presented us with no overriding policy reason for interpreting Indianas Anti-Trust Act otherwise, we now explicitly hold that a municipality is a person who can sue and be sued under Indiana Code sections 24-1-2-1 et seq.

CONCLUSION. We find that a municipality and its subdivision are a person as defined by Indiana Code section 24-1-2-10. Therefore, a school district may be sued for violations of our Anti-Trust Statute. Thus, the trial court did not err in denying Brownsburgs motion for judgment on the pleadings.
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi on Thursday, May 13, 2004
Posted to Indiana Decisions

Indiana Decisions - Two from 7th Circuit today

In NLRB v. GEN'L TEAMSTERS 662, the Court grants enforcement of the NLRB's order.

USA v. CRAIG, KENNETH N. involves a sentencing appeal, where at the conclusion of sentencing "Craig announced that he did not want to appeal. Just in case, however, the judge told Craig that his lawyer would continue to represent him through the period allowed for appeal and would file a notice at his request. Craig said that he understood." The time for appeal expired March 26. During the courrse of the 4-page opinion, Judge Easterbrook discusses the "mailbox rule" for prisoners, and states that even if the Court was to suppose that "things happened exactly as Craig now saysnotice deposited in the prison mail system on March 20 but delayed in transit to the district court. That is not enough to make the appeal timely." The Court references United States v. Kimberlin, 898 F.2d 1262, 1265 (7th Cir. 1990), which was cited by the United States, and notes that "Today the mailbox rule depends on Rule 4(c), not on how Kimberlin understood [Houston v. Lack, 487 U.S. 266 (1988)]:

Rule 4 was rewritten in 1993 (and revised in 1998) not only to make the mailbox rule official but also to impose some limits. Rule 4(c)(1) requires a prisoner to use a legal-mail system if the prison has one. (This provides verification of the date on which the notice was dispatched.) If the prison lacks such a system: Timely filing may be shown by a declaration in compliance with 28 U.S.C. 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

Posted by Marcia Oddi on Thursday, May 13, 2004
Posted to Indiana Decisions

Wednesday, May 12, 2004

Law - Analysis of Vieth v. Jubelirer

Just posted on FindLaw.com is an analysis of the recent U.S. Supreme Court decision in Vieth v. Jubelirer, titled "The Supreme Court Gives Partisan Gerrymandering the Green Light--or at Least a Yellow Light," by Michael C. Dorf, a Professor of Law at Columbia University School of Law. Some quotes from near the conclusion of the article:

In the wake of Vieth, what should friends of democracy do to challenge political gerrymandering?

The Vieth plurality suggests that they should take their case to Congress. Yet as the Vieth plurality itself also notes, the very Pennsylvania districts challenged in the case were created under pressure from "prominent national figures in the Republican Party." How likely is it that the national legislature will be sympathetic to a campaign to end political gerrymandering?

The other option is to take Justice Kennedy at his word, and to try to devise a standard for judging political gerrymandering claims that he (and presumably the four Vieth dissenters) would deem manageable.

I'll do my bit here by championing one such standard that my Columbia Law School colleague Professor Samuel Issacharoff has advocated: Political gerrymandering claims should be closely scrutinized unless the electoral districts were themselves drawn by a nonpartisan body, as occurs in some states.

Posted by Marcia Oddi on Wednesday, May 12, 2004
Posted to Indiana Law

Indiana Decisions - Today's 7th Circuit Rulings

BELL, MARK v. DUPERRAULT, TERE, from the ED Wis. The panel included Judges Flaum, who wrote the main opinion), Posner and Williams. From the opinion:

Mark Bell owns a vacation home on the shoreline of Lake Michigans Green Bay in Door County, Wisconsin. In 1993, Bell obtained a permit from the Wisconsin Department of Natural Resources (DNR) in order to construct a private pier into the bay. In 1998, Bell decided to expand his pier. He therefore attempted to obtain a permit from the DNR so he could build a 60-foot extension onto his existing pier, a rubble mound breakwater that was 45 feet long and 15 feet wide, and a temporary road on the lakebed to aid construction. The DNR objected to Bells permit application and required that Bell proceed with an administrative hearing on the issue. Instead of proceeding with the administrative hearing, Bell filed suit alleging that the DNR violated his rights under the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the DNRs agent, Tere Duperrault, and Bell now appeals. For the reasons stated herein, we affirm. * * *

Typically equal protection claims involve charges of singling out members of a vulnerable group for unequal treatment or charges that a law or policy makes irrational distinctions between groups of people. See Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir. 1995). However, equal protection claims may also involve a class of one, where the plaintiff alleges that only he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The class of one plaintiff bears the burden of proving that he has suffered intentional, irrational, and arbitrary discrimination. See id. at 564-65. He can do so either by showing that he was treated differently from identically situated persons for no rational reason, or that he was treated worse than less deserving individuals for no rational reason. See Esmail, 53 F.3d at 179 (stating that equal protection does not just mean treating identically situated persons identically. If a bad person is treated better than a good person, this is just as much an example of unequal treatment . . . .). Bell argues that he was in such a class of one when the DNR denied his permit application unless he took part in a hearing while granting permits to other similarly situated individuals without a hearing.

In its review the court states: "None of these arguments enables Bell to carry the 'very significant burden' of a class of one plaintiff. See Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 282-83 (7th Cir. 2003). It is not enough that the DNR acted in a way that Bell believes to be ineffective or even destructive. Rather, Bell must eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification.

Judge Posner's concurring opinion begins:

I join the majority opinion, but write separately in an effort to clarify the standard (on which the majority opinion is prudently noncommittal) applicable to class of one equal protection cases. The lack of clarity has been remarked by commentators.
Also today: KATERINOS, DOUGLAS v. US DEPT TREASURY (involves interesting procedural issues); and RANDOLPH, JEANETTE v. IMBS INCORPORATED (Bankruptcy)

Posted by Marcia Oddi on Wednesday, May 12, 2004
Posted to Indiana Decisions

Environment - Two (now three) interesting Indiana stories

Here are two interesting Indiana environment stories I didn't have a chance to post yesterday.

Open burning. From the Linton Daily Citizen is a story about state solid waste districts banding together to fight backyard burning. Some quotes:

A new statewide public education campaign against backyard burning with local leadership ties will be launched Thursday in Indianapolis -- the result of cooperative effort of 25 different solid waste districts.

Greene County Solid Waste Director Jeff Myers is heading up the Indiana Illegal Burning Task Force that is collaborating with the Indiana Environmental Management Agency (IDEM) and the Indiana Asthma Coalition in this effort.

Myers has long been a passionate advocate and vocal spokesman against "backyard barrel" burning. He says its time for everyone in the state to be accountable for this action that he called illegal and a prime public heath hazard.

Backyard burning of household trash has been illegal in Indiana since the 1960s. Unfortunately this outlaw practice is still widespread. It is a problem that affects everyone who lives in Indiana because it poisons our environment, harms our health and wastes our money and resources, according to Myers.

Sewer ban impacts. From the Decatur Daily Democrat is this story about a community working to get a sewer ban lifted so that new development may proceed. Some quotes:
Officials in Berne are hoping that improvements to the city's sewer system - those currently under way as well as projects proposed for the immediate future - will convince the state to rescind a ban on new development in the city.

Berne City Council on Monday approved the draft version of a letter that will be sent to the Indiana Department of Environmental Management seeking a variance for a sanitary sewer construction permit for the Villas of Courtyard Lakes subdivision. IDEM previously had denied that permit because of repeated sewage overflows in the city and an overall lack of capacity at the wastewater treatment plant. * * *

[Kevin Allen of Encompass Engineering, the city's engineer] said that variances such as the one being sought by Berne are rarely granted by the state agency, "But in talking with some people there, they are anxious for us to undertake these projects. IDEM will hopefully view this as a good-faith effort to reduce our sewage problems," the engineer said.

Mayor John Minch, who has also been in contact with IDEM officials, said the state - if the variance is approved - will likely develop a binding contract establishing a timetable for the proposed improvement projects.

[Update] Air monitoring. One more story, this one from today's Louisville Courier-Journal, which tells how Louisville successfully competed for a grant to provide instensive air monitoring:
The U.S. Environmental Protection Agency has agreed to provide as much as $267,000 for intensive air monitoring at a Louisville industrial plant believed to be the area's major source of a cancer-causing chemical.

The Louisville Metro Air Pollution Control District, which secured the grant, plans to use it to place monitors along American Synthetic Rubber Co.'s fence line and analyze the results. It also wants to monitor for leaks in the area of the Camp Ground Road plant where the chemical, 1,3 butadiene, is transferred from rail cars into the factory.

The monitoring program is "a major step in terms of what we hope will be a comprehensive toxic air (control) program for the community," said Metro Mayor Jerry Abramson. * * *

EPA officials said Louisville is one of just 18 cities nationally to successfully compete for a total of $6million allocated by Congress for monitoring and assessing toxic chemicals and compounds in the air.

"This will help Louisville better characterize the air toxics issue, which will help them better address the concerns," said Doug Neeley, chief of the air toxics and monitoring branch of the regional EPA office in Atlanta.

The fact that Louisville had previously "done the groundwork" with other air monitoring for toxic chemicals and compounds gave the city an edge, Neeley said.

Readers may recall talk of the need for air monitors in Indianapolis in the "Indianapolis Neighborhood at Risk" stories published by the Indianapolis Star in late February and covered by Indiana Law Blog entries here and here.

Posted by Marcia Oddi on Wednesday, May 12, 2004
Posted to Environmental Issues

Tuesday, May 11, 2004

Indiana Decisions - 7th Circuit Rulings Posted Today

USA v. WHITE, ANDREW S. (from the SD Ind., Judge Tinder):

KANNE, Circuit Judge. Based upon an allegation of evidentiary error, Defendant Andrew S. White appeals his judgment of conviction for possession of firearms as a convicted felon, 18 U.S.C. 922(g)(1) (2003), entered pursuant to a jurys verdict. He also appeals his sentence, claiming that the district court erred when it increased his offense level under U.S.S.G. 3C1.1 (2003) for attempting to suborn perjury. We affirm both Whites conviction and sentence.
BARRETT, LINDA P. v. BARNHART, JO ANNE, on petition for rehearing, where, in a Per Curiam ruling, the panel of Posner, Ripple and Williams write:
The government, distressed by one sentence in our opinion in Barrett v. Barnhart, 355 F.3d 1065 (7th Cir. 2004), asks us to change it (the government does not ask us to reconsider our decision, which was adverse to it). The sentence is: The test [of the plaintiffs entitlement to disability benefits] is whether she is so disabled that there are no jobs in reasonable proximity to where she lives that she is physically able to do. 355 F.3d at 1067 (emphasis added). It is the phrase that we have italicized that bothers the government, which points out that the law does not require, to defeat a finding of disability, that jobs exist in the immediate area in which the claimant lives. * * *

Yet in our experience, and, it seems, in that of the other circuits as well, the vocational experts who testify in social security disability cases concerning the availability of jobs that the applicant has the physical ability to perform almost always confine their testimony to indicating the number of such jobs that exist in the applicants state, or an even smaller area. * * *

In practice, the principal significance of the other regions language in the statute is to prevent the Social Security Administration from denying benefits on the basis of isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where [the applicant] live[s]. 20 C.F.R. 404.1566(b). Our formulation that the government doesnt like was thus descriptively accurate; it was not intended to alter the statutory standard.

Also: HOFFMAN, SHIRLEY v. CATERPILLAR INC (ADA); OLOWO, ESTHER v. ASHCROFT, JOHN D. (Immigration); SMITH, DIANE v. DUNN, STEPHANIE ( 1983); and UNITED AIRLINES INC v. NAT'L PROCESSING CO (Bankruptcy): "Like the eleventh circuit, we hold that a trustee in bankruptcy, or a debtor in possession, may assume a credit-card-processing agreement."

Posted by Marcia Oddi on Tuesday, May 11, 2004
Posted to Indiana Decisions

Indiana Decisions - More on Lake County reassessment ruling, and impact

The Northwest Indiana (Munster) Times today is filled with stories about the impact of Lake County Superior Court Judge Robert Pete's decision last Friday finding Lake County's reassessment unconstitutional and ordering its treasurer to withhold mailing new tax bills (see this 5/9/04 Indiana Law Blog entry for more background). Here is a sampling:

"Lake County faces uncertain future: Officials look for relief after judge rules new tax bills unconstitutional," available here, discusses how "government officials across the county are scrambling to determine how to keep government -- municipalities, schools, the county and others -- afloat past summer without added tax revenue reaching government coffers. * * * 'Regardless of how you interpret this, by September, all units of government, including schools and municipalities, will be in trouble,' said county attorney John Dull. In Indianapolis, Indiana Attorney General Steve Carter was weighing whether to appeal. Others were watching and considering how they might be involved in facing the traumatic ruling by Judge Pete. For instance, the Indiana Bond Bank began mobilizing a group of lawyers to determine how the state might help keep governments operating in Lake County." More:

In the worst-case scenario, which officials talked about privately on Monday, courts and public safety offices would be closed, schools shuttered, social services suspended, thousands of employees laid off, and government contracts canceled. The county, with its costs making up about 16 percent of any tax bill, has reached its cap for borrowing from Indiana's Bond Bank, according to the county council's financial adviser Dante Rondelli. The county already has borrowed some $97 million and currently is getting its cash flow from insurance reserves.

Although Lake County already has collected more than $47 million in 2003 tax dollars and has another $66 million in property tax replacement dollars coming from the state, that money cannot be touched until the tax rates are set and the lawsuit is resolved, officials said. * * *

[Attorney General] Carter is expected to appeal Pete's decision on behalf of the state, but no officials really know when and if that will happen -- or what the outcome will be. The judge's decision may be overturned quickly on appeal, or it could stand -- taking months or years to wind its way through Indiana's legal system.

Attorney general considers appeals options: Local governments could run out of money if courts don't resolve reassessment suit, official says," available here.
"The state has three options -- including doing nothing, said Staci Schneider, a spokeswoman for Carter's office. The regular route would be the Indiana Appeals Court, which has a 30-day time limit to file an appeal. Or the state could appeal to the Indiana Supreme Court to rule on the jurisdictional issue as a way to speed up the process."
"Treasurer to taxpayers: Stash your money," available here.

"Ruling concerns local assessors: Township assessors believe they'll be responsible for conducting another assessment," avalable here.

"Lawmakers defend outside reassessment: Special legislation common before high court decision last year," available here. Some quotes:

INDIANAPOLIS -- Lake County lawmakers Monday defended a 2001 law hiring an outside firm for property reassessment even though it was struck down as unconstitutional last week.

Lawmakers passed House Bill 1902 three years ago so the state could hire Ohio-based contractor Cole Layer Trumble to perform the reassessment instead of elected township assessors. The intention, lawmakers have said all along, was to ensure the integrity and uniformity of a process that had been plagued by inconsistency and politically motivated underassessment for years. * * *

On Friday, 10 homeowners and the Miller Citizens Corp. successfully challenged the outside reassessment as special or local legislation that the Indiana Supreme Court has since called unlawful.

Special laws apply to only one city or county rather than the whole state, but legislators often get around the prohibition by writing bills that list specific parameters, such as population without naming the city or county. Past examples include riverboat gambling legislation for Lake County and the financial bailout of Porter County after the bankruptcy of Bethlehem Steel.

In January 2003, the Supreme Court ruled against an annexation law that only applied to St. Joseph County. The decision did not invalidate any of the state's 526 special laws, including at least 88 in Lake County, but it threatened all of them by opening the floodgates to lawsuits testing their constitutionality.

"Are we going to strike all those laws and start over?" asked Rep. Bob Kuzman, D-Crown Point. "You want to talk about special legislation, look at the gaming boats."

Note: The case referred to is City of South Bend v. Kimsey, et.al. (Ind.S.Ct. 1/15/03). See Indiana Law Blog discussions here and here. And here are the digest to HEA 1902 from the 2001 session, and House Enrolled Act 1902 itself.

Posted by Marcia Oddi on Tuesday, May 11, 2004
Posted to Indiana Decisions

Indiana Law - Federal prosecutor proves no case too complex

"Prosecutor proves no case too complex: Federal attorney making a name by getting convictions in complicated trials," is the headline today to this lengthy story in the South Bend Tribune about "Donald Schmid, an assistant U.S. attorney who has built a local reputation for successfully prosecuting complex criminal cases." A sample:

SOUTH BEND -- The jury did more than listen as the federal prosecutor measured out evidence showing why prolonged releases of raw sewage from the Warsaw wastewater treatment facility were criminal acts.

Jurors clung to every word, their expressions revealing the mental images they formed at each discovery in witness testimony and display charts.

They nodded knowingly as the gastric mechanics of waste treatment were explained. They traversed a stream trickling past the plant discharge pipes. They recoiled at the buildup of smelly, bubbling sludge downstream that severely damaged the surrounding environment. There, they met the victim of the crime.

So decisive was the prosecutor's performance that the defendant, former plant operator David Van Dyke, signed a plea agreement admitting to Clean Water Act violations before the government even rested its case.

He was sentenced to 46 months in prison last year.

What had looked to be a complicated trial was reduced swiftly to a simple crime story by Donald Schmid, an assistant U.S. attorney who has built a local reputation for successfully prosecuting complex criminal cases.

Posted by Marcia Oddi on Tuesday, May 11, 2004
Posted to Indiana Law

Indiana Decisions - Six New Court of Appeals Decisions Posted Today

Lake Holiday Conservancy v. Nicole Davidson (5/10/04 IndCtApp) [Civil Procedure]
Barnes, Judge

Case Summary. Lake Holiday Conservancy District (Lake Holiday) appeals the trial courts denial of its motion to transfer venue. We affirm.

Issue. The sole issue is whether the trial court properly denied Lake Holidays motion to transfer venue from Marion County to Montgomery County. * * *

Conclusion. The trial court did not abuse its discretion in denying Lake Holidays motion to transfer venue from Marion County to Montgomery County because Marion County is a preferred venue under Indiana Trial Rule 75(A)(5). We affirm. MATHIAS, J., concurs.

CRONE, J., concurs and files separate opinion: I concur with the majoritys reasoning and result but feel compelled to express my concerns regarding the preferred venue requirements of Trial Rule 75(A)(5). I agree with Lake Holiday that the application of the rule by the trial court in this case creates a highly inconvenient and illogical result. It is unfortunate that Rule 75(A)(5) as written is susceptible to abuse and an unnecessary increase in litigation costs, not just to the taxpayers of local governmental agencies who may be required to pay to defend far from their locales, but also to private defendants who have the misfortune of simply being a party to a lawsuit involving a governmental agency. Nevertheless, I agree with the majority that the trial court had no choice but to apply the trial rule as written and that there is no logical reading that would permit any other result. In fact, we previously held as much in Board of Commissioners of Cass County v. Nevitt, 448 N.E.2d 333 (Ind. Ct. App. 1983).

Brian Chism v. State of Indiana (5/10/04 IndCtApp) [Criminal Law & Procedure]

"Chism has waived his claims of error regarding the trial courts resolution of his 1999 motion to correct erroneous sentence by failing to appeal that order. Waiver notwithstanding, the trial court acted properly in 1999 when it vacated that portion of Chisms sentence that exceeded the parameters of his plea agreement and simultaneously extended the length of his probation and added home detention as a condition of probation, which did not exceed statutory authority or the terms of the plea agreement. We affirm."

Duane Burge v. Christopher Teter (5/11/04 IndCtApp) [Tort]

Richard Beeler v. State of Indiana (5/7/04 IndCtApp) [Criminal Law & Procedure]

"Under these facts and circumstances, evidence was presented from which the trier of fact could infer that Beeler knowingly or intentionally possessed the cocaine residue found on the electronic scale, and therefore, the evidence was sufficient to support his conviction for possession of cocaine."

State Farm Mutual Automobile Insurance Company v. Garland & Helen Hughes (5/7/04 IndCtApp) [Insurance]
Darden, Judge

State Farm Mutual Automobile Insurance Company appeals the denial of its motion to set aside a default judgment entered against Tiashonta Thomas in a negligence action filed by Helen and Garland Hughes. * * *

Here, the Hugheses have failed to allege prejudice and we find none. As soon as the Hugheses advised State Farm about the lawsuit and uninsured motorist claim, State Farm filed a motion to intervene and advised the Hugheses of its desire to stay involved in the remainder of the litigation so as not to waive any right it might have with regard to providing uninsured motorist coverage to the Hugheses with regard to Thomas' fault. Further, as soon as State Farm learned about the entry of the default judgment against Thomas, State Farm filed an objection to the judgment. State Farm's motion to set aside the default judgment, filed after the grant of its motion to intervene was merely a formal version of its objection to the judgment. The motion did not prejudice the Hugheses. In addition, five months of State Farm's 12-month delay in filing the motion was directly attributable to the Hugheses' requests for continuances and failure to appear in court. Based upon the foregoing, we find that State Farm's motion was filed within a reasonable time. Reversed.
RILEY, J., and BAILEY, J., concur.

Barlett A. Washington v. State of Indiana (5/7/04 IndCtApp) [Criminal Law & Procedure]
Darden, Judge
Bartlett Washington appeals his conviction, after a jury trial, on one count of conspiracy to commit the offense of dealing in cocaine, as a class A felony. We reverse and remand. Issue. Whether sufficient evidence supports the conspiracy conviction. * * *

Because we conclude that based upon the facts and circumstances in the record, no reasonable fact-finder could find the elements of conspiracy to commit dealing in cocaine as a class A felony offense to have been proven beyond a reasonable doubt, we order the class A felony conviction reversed and vacated. In addition, we find it appropriate to remand for resentencing. The fact that Washington had also been convicted of an A felony could have affected the trial court's determination of the appropriate sentence to impose for the class B felony offense on which Washington was also convicted at trial. Accordingly, we remand for resentencing on that conviction.
Reversed, vacated, and remanded.
MAY, J., and BARNES, J., concur.

Posted by Marcia Oddi on Tuesday, May 11, 2004
Posted to Indiana Decisions

Not law but interesting - Blogs and BlackBerrys on the Hill

A story in Roll Call today reports that "Rep. Mike Pence yesterday became the first Member of Congress with his own ongoing blog." The site requires a paid subscription, but you can see the front page, currently complete with photo of Congressman Pence, here. More from the story:

Today, Rep. Mike Pence (R-Ind.), a self-described "Internet geek," will boldly go where no other Member has gone before: He is launching the first ongoing personal weblog, or "blog," on a Congressional-office home page. * * * Until now, blogs have had a limited presence on the Hill. * * *

For Pence, his blog's nerve center is the BlackBerry he's kept with him since 2000. The Indiana lawmaker plans to update his scrolling blog frequently, by tapping a note into the small portable e-mail device.

"If I didn't have a BlackBerry," Pence explained, "it would be a huge burden to sit down at the end of the day. But like most Members of Congress, I probably type 100 to 150 e-mails to staff a day."

Pence, in fact, has always been on the technological cutting edge. In 2000, before most Americans even knew what a BlackBerry was, Pence ordered one for himself and for his chief of staff.

Following the Sept. 11, 2001, terrorist attacks, he held the small device in the palm of his hand as he stood in between then-House Majority Whip Tom DeLay (R-Texas) and then-Minority Leader Richard Gephardt (D-Mo.) in the Capitol Police commander's office trying to make sense of all the chaos of that day.

"None of their [phone] systems worked," Pence said, recounting how his brother was e-mailing him messages and stories explaining what was going on. "DeLay and Gephardt were looking over my shoulder and saying 'What is that thing? How come it's working?'" Pence recalled.

Within a week, House Administration Committee Chairman Bob Ney (R-Ohio) decided that every lawmaker in the House would be receiving a BlackBerry, to improve communications in the event of another national catastrophe.

[Update 5/12/04] Here is a link to the Mike Pence Blog.

Posted by Marcia Oddi on Tuesday, May 11, 2004
Posted to General News

Monday, May 10, 2004

Indiana Decisions - 7th Circuit Rulings Today

Among the 7th Circuit rulings posted today is OFFICER JAMES T. MCGREAL, v. ERIC OSTROV, Doctor, VILLAGE OF ALSIP, KENNETH WOOD, Chief of the Alsip Police Department, et al., a 54-page decision written by Judge Rovner and joined by Coffey and Posner. Some quotes:

To hear Officer James McGreal tell the story, something is rotten in the Village of Alsip. After running against the mayor and losing by a narrow margin, McGreal found himself the target of a campaign to remove him from his long-held post as an Alsip police officer. He sued the Village of Alsip, the towns Chief of Police, a police lieutenant, and a psychologist retained by the Village to assess McGreals fitness for duty. The district court granted summary judgment in favor of the defendants, and McGreal appeals. * * * After he lost the election to Andrews by a slim 378 votes (the Village has 17,000 residents), McGreal found himself under unprecedented scrutiny from his superiors. Ultimately, they attempted to remove him from his post on the ground that he was unfit for duty. The dispute over McGreals fitness to serve as a police officer revolves around a number of incidents, followed by a mental health examination. The events overlap in time and we will describe them separately for clarity. We explore the factual circumstances extensively because a full review of the facts casts a pall of suspicion on the Village of Alsip.

In summary, we find that the district court erroneously granted summary judgment in favor of the defendants on McGreals First Amendment claim and on his Confidentiality Act claim. We reverse that judgment and remand for a trial on these claims consistent with this opinion. Circuit Rule 36 shall apply on remand..

The facts in the case of SUSAN C. HILEMAN v. LOUIS MAZE, et al., from the SD Ill., in an opinion writen by Judge Wood, are also of interest:
A few days before the Democratic primary election for Circuit Clerk of Alexander County, Illinois, a police raid turned up a cache of absentee ballots in the custody of County Clerk Louis Maze. Along with the ballots was extensive material indicating that Maze was opening the ballots and replacing those in favor of incumbent Susan Hileman with ballots naming her opponent, Sharon McGinness. For mysterious reasons, the seized ballots were then returned to election officials and commingled with all other ballots cast on election day, March 21, 2000. Hileman lost the election and eventually brought this lawsuit under 42 U.S.C. 1983 and Illinois state law on March 20, 2002, one day short of the two-year anniversary of her defeat. The district court dismissed Hilemans complaint as time-barred, finding that her claim had accrued on March 16, 2000the date police seized the fraudulent ballotsrather than the March 21 date of the primary election. Hileman now appeals. Because we conclude that the district court erred in finding that Hilemans claim accrued at the earlier of the two dates, we reverse and remand for further proceedings.
Finally, in HASBRO, INC. v. CATALYST USA, INC., from the ED Wis., Judge Wood writes:
Although companies often choose arbitration with the hope of avoiding the (presumed) greater time and expense of litigating in court, that was not the fate of the parties in this case. Hasbro, Inc. and Catalyst USA, Inc. waited more than two years for a final award from an arbitration panel that was adjudicating a dispute between them about a software license. After the award was finally issued, the losing party, Catalyst, asked the district court to vacate the arbitral award. The court agreed that this was appropriate on the ground that the arbitrators had exceeded their authority by waiting too long to issue their decision. While we appreciate the frustration caused by the delay, a closer look at the proceedings shows that no one objected at the crucial time to the panels conduct of the proceedings. Whatever errors with respect to deadlines may have been committed were either waived or harmless. We therefore reverse and remand for entry of an order enforcing the award.

Posted by Marcia Oddi on Monday, May 10, 2004
Posted to Indiana Decisions

Indiana Law - The future of gay marriage and civil unions nationally and in Indiana

The New York Times Magazine has an outstanding article this week by David J. Garrow, titled "Toward a More Perfect Union," that reviews the entire recent history of the gay right-to-marriage movement. Taking the long view, the article concludes:

Looking back 50 years to Brown v. Board of Education, most Americans have no difficulty in distinguishing the legacies of Thurgood Marshall, Martin Luther King Jr. and John F. Kennedy from those of the segregationist governors Orval Faubus, Ross Barnett and George Wallace. And 50 years from now, the odds are that Americans will have little difficulty in distinguishing the legacies of Evan Wolfson, Mary Bonauto and Gavin Newsom from those who oppose gay equality. As Kevin Cathcart asks, ''Which side of history do you want to be on?''
Contrasting with this is another article in yesterday's NY Times, about the Liberty Counsel, a conservative group that is using the courts to fight gay marriage:
"We used to be up against the government when fighting for gay rights, but more and more often we find ourselves also battling against Liberty Counsel and similar organizations," said Jon W. Davidson, a Los Angeles-based senior counsel for Lambda Legal, a legal organization fighting for gay rights. "It is clear in the case of same-sex marriage that the religious right has started using legal tactics normally associated with liberal and progressive groups like the A.C.L.U. or N.A.A.C.P."
This morning's Indiana Daily Insight has an interesting item under the "IN State Circles" heading:
(MON) Gay marriage is inevitable in the United States, says Brian Powell, the Allen D. and Polly S. Grimshaw Professor of Sociology at IU Bloomington, noting that demographic patterns clearly point to this. Powell's expertise includes the sociology of the family and issues regarding family structure. The current discussion and prospects for gay marriage and civil unions, he said, were unthinkable even just a few years ago. Last year Powell and his research team surveyed more than 700 people from around the country about gay marriage. The detailed survey revealed some demographic trends that bode well for supporters of same-sex marriage. The younger survey respondents were much more positive about gay and lesbian unions, Powell said. These young people may become more conservative as they age, thus changing their views of same-sex unions, but Powell said he doubts that this will happen. Young people are coming of age while these issues are being widely discussed, so the issues are less intimidating, he said. Another telling survey result involved the percentage of people who said they had a close friend or relative who was gay. Around 40% of respondents said this was the case, and Powell thinks this number would have been around 20% 10 years ago. He said this survey result is important because a person is more likely to support gay and lesbian unions if they have a close friend or relative who is gay or lesbian. "Not openly discussing these issues is much worse than having a candid discussion," he said. Powell's survey included questions that probed opinions about heterosexual and same-sex relationships and related benefits, such as hospital visitation rights and inheritance.
The question of gay marriage / same sex unions is currently pending before the Indiana Court of Appeals, via the case of Morrison v. Sadler. Earlier Indiana Law Blog entries may be found here: 2/27/04, 2/16/04, 2/4/04 (comprehensive), 1/13/04 (comprehensive), 1/8/04, and 12/14/03. Morrison v. Sadler was argued before Judges Friedlander, Kirsch and Barnes on 1/12/04. Many of the documents in the case may be found here.

Garrow's NY Times Magazine article explains why gay marriage advocates elected to file a case in Vermont in 1997 (that ultimately led to civil unions in that state):

Hawaii had demonstrated that a well-wrought lawsuit, strong constitutional arguments and a sympathetic court could produce a victory but were not necessarily sufficient to protect and preserve it. Vermont, by contrast, had several decisive advantages. Three years earlier, the state Supreme Court issued a pioneering opinion approving second-parent adoption for same-sex couples, thus evidencing sympathy for gay families. What's more, Vermont's state Constitution, unlike Hawaii's, was difficult to amend, creating a high hurdle for anyone eager to overturn a state constitutional judicial decision.
Indiana also has approved second-parent adoptions for same sex couples. See In The Matter of K.S.P and J.P. (3/23/04 IndCtApp), summarized here in the ILB, and Adoption of M.M.G.C. (3/18/03 IndCtApp). The March 2004 Court of Appeals opinion quotes extensively from Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993). The judges on the panel were Friedlander, Kirsch and Barnes.

Posted by Marcia Oddi on Monday, May 10, 2004
Posted to Indiana Law

Sunday, May 09, 2004

Law - "Strict Construction" and "Judicial Activism"

The ever-excellent Legal Theory Blog, wrtten by the prodigious legal scholar Lawrence Solum, has a valuable entry today on these two terms. The introduction: "Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that are unimportant (or even meaningless), strict construction and judicial activism." The conclusion:

This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. For that reason, it is very important for constitutional theorists to be very careful about their use of language.

Posted by Marcia Oddi on Sunday, May 09, 2004
Posted to General Law Related

Indiana Law - Senator Borst's hopes may turn on Lake Co. lawsuit

An interesting story today in the Gary Post-Tribune. (The Post-Tribune does not archive its stories so it will only be available online today.) State Senator Larry Borst of Greenwood, "chairman of the Senate Finance Committee for all but two years since 1973," apparently lost in the primary last Tuesday, by 49 votes. Some quotes:

Now that powerful Senate Finance Committee chairmans political future hangs by a thread because of a challengers strong showing in Tuesdays primary, local lawmakers are wondering what will happen next. * * *

Borsts hopes appear to be riding on 40 precincts that, for whatever reason, ran out of ballots on Tuesday. Reports of voters being turned away at the polls have surfaced, and Borst may have to decide whether to petition the Indiana Supreme Court to order a new election, said Ed Feigenbaum, an Indianapolis observer of state government.

I think everyone is waiting on the outcome of Pabey vs. Pastrick, he said. George Pabeys petition to have the 2003 East Chicago Democratic mayoral primary results voided is awaiting a decision by the Indiana Supreme Court. Mayor Robert Pastrick won re-election and started his new term in January.

The Indiana Supreme Court has never thrown out an election. The 2003 East Chicago primary is expected to set the standard. Local lawmakers may find it ironic that Borsts future may ride on the fate of Lake County Democrats.

Recent Indiana Law Blog entries on the Pabey v. Pastrick vote fraud case may be found here, here, and here.

Posted by Marcia Oddi on Sunday, May 09, 2004
Posted to Indiana Law

Indiana Law - Court throws out Lake Co. reassessment

Taking the stories in reverse chronological order, on Thursday, May 6th the Munster Times carried a story headlined: "No respite for the tax weary: Judge does not issue ruling in homeowner group's reassessment lawsuit." Some quotes:

HAMMOND -- Residents of Gary's Miller neighborhood seeking property tax found little solace at a court hearing Wednesday. Nearly 60 Miller residents piled into a Hammond courtroom for a two-hour hearing, while upwards of 50 protestors from Hammond marched outside the courthouse chanting "Save our Homes" and brandishing handmade signs with similar messages.

Ten homeowners, along with the Miller Citizens Corp., filed a lawsuit last week against state and local officials, asking for an emergency injunction to halt property tax bills from going out Tuesday. To the dismay of homeowners, Lake Superior Court Judge Robert Pete did not say whether he will stop Lake County's treasurer from mailing out tax bills based on the county's reassessment. "I hope the judge will come down with a ruling by this Monday at the latest. Once the bills go out, this becomes more difficult to accomplish," Miller resident Aletta Hicks said. * * *

The Miller group also wants Indiana's two statutes governing Lake County's 2002 property reassessment declared unconstitutional and its results discarded. * * * Lawyers from the state attorney general's office urged the judge to dismiss the lawsuit and said the proper venue for any legal challenge was before the Indiana Tax Court. "The tax court itself has exclusive jurisdiction over tax laws in this state," said deputy Attorney General Doug Webber.

Kenneth Reed, the Miller group's lawyer, said the lawsuit is not about whether someone's tax bill is too high, or any other similar appeals, but instead is about the constitutionality of a state law. Whether the law deals with taxes misses the point, he said.

The story included some background:
In 1998, the Indiana Supreme Court ruled the state's method of reassessment unconstitutional and ordered "uniform and equal" statewide standards be implemented for valuing property. The General Assembly in 2001 passed laws requiring an outside firm to reassess Lake County's 250,000 parcels. The legislature also required the Department of Local Government Finance to reassess the three steel mills and BP Products.

Lake County was the only one of Indiana's 92 counties where state lawmakers forbade elected assessors from assessing property -- presumably because of historical allegations of corruption.

The state law did not cite Lake County specifically, but used population parameters meant only for Lake County, even though the state Supreme Court later outlawed this practice. Likewise, the law did not name the big four industries, but ordered any company valued at more than $25 million in Lake County to be assessed by the state. U.S. Steel Corp., International Steel Group. Inc., Ispat Inland and BP are the only industries that fall into that category.

Reed, the Miller group's lawyer, argued that the county's reassessment laws amount to special legislation, which the Indiana Constitution always has prohibited.

In a story published Friday, the Times reports: "Tax bills tossed out: Judge rules reassessment, resulting tax bills unconstitutional." Some quotes:
HAMMOND -- A Superior Court judge said today Lake County's reassessment is unconstitutional and ordered its treasurer to withhold mailing new tax bills. The ruling from Judge Robert Pete says it was unconstitutional for the legislature to single out Lake County by requiring an outside firm to reassess it, but not the rest of the state. The judge ruled the county treasurer, though, is authorized to bill taxpayers based on their previous assessments for the balance due of their 2002 tax bills, which was payable in 2003.
Today's Times: "Miller residents revel in tax victory -- for now: Judge declares some bills and reassessment on which they're based invalid." Quotes from the story today:
GARY -- Residents of the city's Miller section were in a holiday mood Saturday -- a tax holiday mood. Hundreds of its families had been expecting tax bills this week as lofty as the sand dunes on which some super-sized beach cottages are perched. Lake Superior Court Judge Robert Pete declared those bills and the property reassessment on which they were based to be invalid Friday. "It was like a stay of execution," a relieved Evelyn Reaves said. * * *

Pete's decision threw out the new values placed on Lake County's approximately 250,000 parcels and stopped the county treasurer from mailing the new tax bills. Pete said it was unconstitutional for the Legislature to single out Lake County by requiring an outside firm to reassess it, but not the rest of the state. Lake County was the only one of Indiana's 92 counties where state lawmakers forbade elected assessors from assessing property.

County officials are scheduled to have a joint executive session at 3 p.m. Monday to discuss the judge's decision and what's next for the county. The meeting will include legal and financial representatives, who will help determine what options the county has, said Lake County Council President Will Smith Jr., D-Gary.

The Indianapolis Star today (Sunday) posted this comprehensive AP story on its indystar.com site. Some quotes:
Superior Court Judge Robert Pete ruled Friday that the Legislature acted unlawfully when it singled out Lake County by requiring an outside firm to reassess its property. The northwestern Indiana county was the only one of Indiana's 92 counties where state lawmakers forbade elected assessors from assessing property. Attorney Gregory Reising, who represented plaintiffs in the lawsuit challenging the county's reassessment, called the ruling a victory for taxpayers. "Now we can get down to the business of doing serious reform instead of shifting tax burdens," Reising said.
I hope to be able to post a copy of Judge Pete's ruling.

[Update 5/10/04] Comments by Ed Feigenbaum this morning in his online blog, Indiana Daily Insight (under the heading "Heads Up"), are worth repeating here:

(MON) Late Friday afternoon, a Lake County Superior Court Judge granted an injunction against Tuesday's mailing of Lake County property tax bills, ruling that the 2001 legislation that included a $25 million reassessment of the county's parcels by a private contractor unconstitutional special legislation because it impermissibly singled out Lake County. That means that the Lake County Treasurer's Office will now be barred from sending out new tax bills, and instead must bill taxpayers for the remaining balance of their 2002 taxes based on previous assessed values -- a process expected to take up to eight months before mailing. This means that cash-starved local units of government (and schools) in Lake County will be in even worse shape . . . that the payments on the $25 million reassessment contract are likely to be totally deep-sixed by the locals, leaving it to the State to pick up the tab (for what could be a worthless process that has already cost a bundle in litigation expense) . . . and that if the process becomes even more protracted and the courts find the questioned process to be appropriate, local homeowners may eventually be socked with truly unimaginable retroactive tax bills.

Posted by Marcia Oddi on Sunday, May 09, 2004
Posted to Indiana Law

Law - What U.S. Supreme Court Decisions are Remaining?

A good story today in the Houston Chronicle, headlined "Supreme Court session ending with potentially historic cases," reports:

The court, which will end its term on June 28, wrapped up the current term's oral arguments late last month. Now the nine justices meet behind closed doors to discuss the cases and hash out their decisions.
The story reviews the major cases still undecided, including the "pledge of allegiance" case, and "a trio of cases involving the administration's war on terror." Several other pending cases are also covered.

[Link via How Appealing]

Posted by Marcia Oddi on Sunday, May 09, 2004
Posted to General Law Related

Indiana Law - County Commissioner Election Illegal?

Is the election of county commissioners in Washington County, Indiana illegal? That is the issue posed in a federal suit filed last week by a resident of Salem, Indiana (located in Washington County). Here are some quotes from a story today in the Louisville Courier-Journal:

A Washington County woman has filed a federal lawsuit aimed at forcing county commissioners to change the size of districts. The suit filed in U.S. District Court in New Albany last week by Salem resident Angela Mead cites an Indiana law that required all counties to perform redistricting in 2001. The suit claims that Washington County has not done so and that the populations of its districts are not equal. The commissioners said redistricting is not required for Washington County. * * *

Mead says in her suit that District Two, represented by Phillip Lofton, has the largest population at 13,916, while District Three, represented by Jerry Roberts, is the smallest with 5,663 people. District One has 7,644 people. The county's total population of 27,231 as measured in the 2000 census means that if districts were equal in population, each would have 9,077 people, the suit says. The complaint notes that federal courts have ruled that a combined deviation of 10 percent or more from the ideal population in the largest and smallest districts is a violation of the equal protection clause of the U.S. Constitution. * * *

The law is clear in its requirement that counties perform redistricting, said Dale Simmons, co-general counsel of the Indiana Election Division. Even if the commissioners simply re-adopt the current districts, they must take formal action to do so, he said. But the commissioners are right about the lack of any population requirement for districts, he said.

"They don't have to be balanced. I'm sure that's why it wasn't written into the statute. ... And there's no constitutional issue," he said. Each of the three districts is voted on countywide in all but two of Indiana's 92 counties. Simmons said the balanced population rule applies only to Marion and Lake counties, which restrict commissioner voting to each district's residents. Wide variations are acceptable in the other 90 counties, said Simmons.

A shorter AP story on the suit has also been published. Here is a page with map showing the location of the county, and information on the commissioners (it is the last county on the page).

Posted by Marcia Oddi on Sunday, May 09, 2004
Posted to Indiana Law

Saturday, May 08, 2004

Environment - An Indiana Department of Agriculture?

This editorial today in the Fort Wayne Journal Gazette argues against the recent Indiana Farm Bureau proposal to create a state department of agriculture. Some quotes from the editorial:

State government could take many steps to improve its performance. But a proposal by the Indiana Farm Bureau for creation of a cabinet level Department of Agriculture is not one of them.

One of the principal issues the Farm Bureau hopes to address regulation of giant livestock feeding operations needs stricter enforcement, not the leniency the bureau is seeking with its proposal.

The department of agriculture would assume authority for issuing permits to factory farms from the Indiana Department of Environmental Management. The Farm Bureau envisions the department as cutting red tape that slows farmers building plans, hinders financial opportunities and harms their image with the public on environmental issues. Enforcement against operators who allow manure spills and other violations would remain with IDEM. * * *

The livestock operation rules that concern the Farm Bureau have only been in effect since March 2003. State regulators and the industry should give them more time to work before considering a major change in permitting authority.

The state already has a stand-alone agriculture agency that is closely linked to the Department of Commerce. The lieutenant governor operates as head of the Department of Commerce and statutorily as the commissioner of agriculture, thus giving farm issues a voice at the governors right hand and allowing them to be considered in the context of other businesses important to farming.

Here is a link to the Indiana Farm Bureau report recommending the creation of an Indiana state board of agriculture.

Posted by Marcia Oddi on Saturday, May 08, 2004
Posted to Environmental Issues

Friday, May 07, 2004

Indiana Decisions - Transfer list for week ending May 7, 2004

Here is the Indiana Supreme Court's transfer list for the week ending May 7, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, May 07, 2004
Posted to Indiana Transfer Lists

Law - Maryland ethics law may not apply to lobbyist "whose misconduct helped prompt the stricter measures"

"Md. High Court Reviews Intent of Ethics Laws" is the headline to this story today in the Washington Post. The question appears to be whether or not the law may be applied retroactively. Some quotes from the story:

Former Maryland attorney general Stephen H. Sachs argued before the state's highest court yesterday that it would defy logic to exempt from the state's new ethics laws the lobbyist whose misconduct helped prompt the stricter measures.

Sachs appeared before the Maryland Court of Appeals to defend the State Ethics Commission's decision to revoke the lobbying license of Gerard E. Evans. Evans was Maryland's highest paid lobbyist before he was sent to jail in 2000 for devising a scheme to defraud his clients.

"It is, I think, a perversion to suggest that the same legislature that said, 'We don't like what's been going on, the process has been discredited, we look bad, and we want [the ethics commission] to clean it up,' would then go and exempt Gerry Evans," Sachs said.

Evans sued the commission over its decision to take away his license. So far his challenge has been successful: An Anne Arundel County Circuit Court judge tossed out the ruling in September. Evans has been allowed to continue lobbying while his case is pending.

The commission's appeal has given rise to the high court's first formal review of a raft of ethics laws passed in the aftermath of Evans's conviction -- reforms that included a rule preventing lobbyists with recent fraud convictions from plying their trade in Annapolis.

The Post report continues that Daniel M. Clements, Evans's attorney, argued that the the legislature iin 2001 did not intend to have the new law apply retroactively to Evans's 2000 conviction:
Holding up a copy of the legislature's bill-drafting manual, Clements told the judicial panel that legislators are advised to be very precise with their wording.

"If they want the law to work retroactively, that must be expressed clearly," Clements said. "If they wanted [the law] to cover him, they had an obligation to say, 'You're covered. You're it. We're going to get you.' "

Sachs said the law sends that message by giving the commission the right to revoke the license of a lobbyist who "has been convicted" in the prior two years, noting the use of past tense.

A semantic debate between Sachs and Judge Dale R. Cathell ensued, with Cathell suggesting that "is" and "has been" essentially mean the same thing in this case.

Sachs said he gleaned the meaning because he believes the legislators made their intent clear -- they wanted to rid the state's lobbying corps of those who faced recent felony convictions. But Clements strenuously disagreed, saying he had looked through stacks of documents pertaining to the legislature's debate, and found not one instance where the members said they intended the law to reach back to apply to Evans.

The Baltimore Sun has a story today headlined "Court of Appeals asked to let lobbyist retain his license: Evans' lawyers argue that ethics panel wrongly used a new law in 2002." Some quotes:
Lawyers for prominent lobbyist Gerard E. Evans asked Maryland's highest court Thursday to let Evans keep his lobbying license, arguing that the state ethics panel was wrong when it used a new ethics law to strip Evans of his license after his 2000 conviction for defrauding clients. "If you are going to make a law retroactive, you have to say so clearly," Daniel M. Clements, Evans' lawyer, told the state Court of Appeals. He argued that the 2001 law should not apply to Evans, who was convicted the year before. He also said the law illegally took aim only at Evans.
The Sun story includes some background about Evans:
Evans, a lobbyist since 1988 who rubbed shoulders with the state's most powerful legislators, had an income in 1998 that topped $1 million. But he was indicted in 1999 and convicted in 2000 in a scheme to garner fees from clients based on phantom legislation, a practice known as "bell-ringing."

A federal judge sentenced him to 30 months in prison, but he served less. He registered as a lobbyist in May 2002 and has lobbied since then. After the commission pulled his license, Evans appealed. An Anne Arundel County judge sided with Evans, and the case swiftly moved on to the state's highest court. * * *

The ethics law at the core of the case was adopted in the spring of 2001 in an effort to curb what the judge who sentenced Evans for fraud had called a "culture of corruption." Effective Nov. 1 of that year, it gave the commission the power to revoke licenses for convictions dating back two years. * * *

The Court of Appeals has no deadline for when to rule. Evans, whose clients include the Maryland Thoroughbred Horsemen's Association, is allowed to keep lobbying while the case is pending.

What is bell-ringing? According to this summary and analysis of the 2001 Maryland lobbying law prepared by the law firm of Piper Rudnick, bell-ringing is "initiating or encouraging the introduction of legislation for the purpose of opposing it ."

Posted by Marcia Oddi on Friday, May 07, 2004
Posted to General Law Related

Law - More on Supreme Court's recent redistricting decision

Updating the April 29, 2004 Indiana Law Blog entry on the U.S. Supreme Court decision in Vieth v. Jubelirer is this Joan Biskupic analysis today in USA Today, centering on the argument presented in Justice John Paul Stevens' dissent:

Justices essentially shut the door on one whole category of voting rights cases those challenging bizarrely shaped, computer-generated, partisan gerrymanders now common nationwide.

It has become a fact of contemporary politics that whatever party controls the statehouse can draw a congressional map to maximize its political power and the overall number of seats it wins statewide.

In the Pennsylvania case decided by the court, state Democrats claimed that the GOP-controlled Legislature so dissected neighborhoods and minimized Democratic power that it guaranteed Republicans a greater share of seats than their relative share of the voters.

Pennsylvania Democrats, noting that similar disputes have erupted across the nation, urged the justices to set a standard for when a political gerrymander a practice that dates to colonial times goes so far as to be unconstitutional.

Instead, the justices all but reversed a 1986 ruling that said federal courts could review political gerrymanders. More broadly, the court's stance marked a sharp contrast to the bench of earlier eras, when the justices boldly protected voting equality. * * *

What is new these days, Pennsylvania Democrats noted in their brief to the court, is that "technology makes it possible to dilute the voting strength of an entire segment of citizenry via the use of a computer program. ... Communities, voting blocs and other groups with common political interests ... can be dissected and rendered impotent through the simple click of a computer mouse." * * *

Last week's ruling, Stevens said, was not driven by a lack of judicially manageable standards. Instead, he called it "a failure of judicial will to condemn even the most blatant violations of a state legislature's fundamental duty to govern impartially."

Posted by Marcia Oddi on Friday, May 07, 2004
Posted to General Law Related

Thursday, May 06, 2004

Indiana Law - Supreme Court to mark anniversary of Brown v. Bd. of Education

Just released by the Office of the Indiana Supreme Court:

The Indiana Supreme Court and the Indiana Civil Rights Commission on May 17, 2004 will mark the 50th anniversary of the landmark civil rights case, Brown v. Board of Education, the case that ordered the end of segregation in public schools, Chief Justice Randall T. Shepard announced today.

Chief Justice Shepard and Gov. Joseph E. Kernan will make brief remarks in the Supreme Court Courtroom on the third floor of the State House beginning at 10 a.m. Following their remarks, Sandra D. Leek, executive director of the Indiana Civil Rights Commission, will introduce Gilbert Taylor, curator of the Crispus Attucks Museum, who will speak about his experiences attending segregated schools in Indianapolis.

In addition, the short program will also include a scripted trial of the events surrounding Brown. Audience members, including about 100 Indiana grade school students, will participant in this re-enactment. Dr. Suellen Reed, Superintendent of Public Instruction, will lead the students in a discussion of Brown.

Following the Courtroom event, from 11 a.m. to 12:15 p.m. in the House Chamber, the Supreme Court and the Civil Rights Commission are hosting a Continuing Legal Education session featuring Professor Kevin D. Brown, of the Indiana University School of Law.

Professor Brown will offer a session titled, "The Golden Anniversary of Brown v. Board of Education: The Positives and the Negatives."

The Continuing Legal Education event costs $20 in advance and $25 at the door. To register for the Continuing Legal Education event, contact Barbara Dobbins at 317.232.2644 or bdobbins@crc.state.in.us.

All events are open to the public and the media. The Courtroom event will be webcast live and archived for later viewing. To watch the webcast, visit www.IN.gov/judiciary/citc.

Posted by Marcia Oddi on Thursday, May 06, 2004
Posted to Indiana Law

Law - Florida law keeping brain damaged woman alive ruled unconstitutional

"Law keeping brain-damaged woman alive ruled unconstitutional," is the headline to this just filed AP story, dateline Tampa, Florida. Some quotes:

The law pushed by Gov. Jeb Bush to keep a severely brain damaged woman alive is unconstitutional, a Circuit Court judge ruled Thursday. The governor's office filed an immediate appeal.

The ruling by Pinellas Circuit Court Judge W. Douglas Baird voided the law passed in October, just days after Terri Schiavo was disconnected from the feeding and hydration tube which has kept her alive for more than a decade.

The law allowed Bush to order Terri Schiavo's feeding tube reconnected. The governor's filing with the state 2nd District Court of Appeal will keep the tube in place. * * *

Baird ruled that the so-called "Terri's Law" is unconstitutional because it violates Terri Schiavo's right to privacy and because it delegated legislative power to the governor.

Calling the measure "extraordinary," Baird said he assumed the law was passed with good intentions but allowed the government to go too far in overriding a citizen's private medical decisions and gave the governor "unbridled discretion."

Responding to the centerpiece of Michael Schiavo's argument against the law - that it violates his wife's right to make her own medical decisions - Baird wrote Terri's Law "in every instance, ignores the existence of this right and authorizes the governor to act according to his personal discretion."

See also this Indiana Law Blog coverage from last November, including this quote from a 10/23/03 NY Times analysis piece by Adam Liptak:
From a legal standpoint, the main question is whether the Florida Legislature is authorized to undo a concluded judicial decision. In general, courts decide particular cases and legislatures enact general laws. When either branch of the government strays from its role in the constitutional structure, its actions can violate the doctrine of the separation of powers.
Here is a brief story, "Florida Judge Overturns Law in Right-to-Die Case," just posted on the NY Times site.

Here is the ruling itself. Here is the Florida law at issue. A sample:

Sec. 1., The Governor shall have the authority to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient if, as of October 15, 2003 * * *.
And here is the "one-time stay" issued by Governor Bush pursuant to the statute. All these documents are thanks to Findlaw.com.

For additional coverage, see the Florida law blog, Abstract Appeal.

Posted by Marcia Oddi on Thursday, May 06, 2004
Posted to General Law Related

Indiana Decisions - Supreme Court Oral Arguments for week of May 3rd

The Supreme Court was scheduled to hear two oral aruments today, Thursday, May 6, 2004:

Chamberlain v. Walpole. The non-dependent adult son of a deceased patient brought a malpractice action against several medical providers. The Allen Superior Court held that the son could recover certain types of non-pecuniary damages under the Medical Malpractice Act, even though he would not be able to recover these damages under the Wrongful Death Act. A divided Court of Appeals affirmed. See Chamberlain v. Walpole, 796 N.E.2d 818 (Ind. Ct. App. 2003), vacated. The Supreme Court has granted transfer, vacating the opinion of the Court of Appeals, and has assumed jurisdiction over this appeal.

Attorneys for Appellants: Milford Miller, Calvert Miller, Diana Bauer, Fort Wayne, IN.
Attorneys for Appellee: Philip Ogden, Timothy Ogden, Warsaw, IN.

Trustees of Indiana University v. University Development Group I, LLC. The Marion Superior Court entered a permanent injuction against the Trustees of Indiana University prohibiting I.U. from breaching provisions of its lease with University Development Group I, LLC, relating to food service on the I.U.P.U.I campus. In an unpublished decision, the Court of Appeals affirmed the trial courts determination that I.U. violated the lease, but it reversed the injuction and remanded for further proceedings as to damages. Both parties have petitioned the Supreme Court to accept jurisdiction over the appeal.

Attorneys for Trustees of Indiana University: Cory Brundage, Zeff A. Weiss, Richard A. Smikle. Edward P. Steegmann, Indianapolis, IN.
Attorneys for University Development Group I, LLC: Henry J. Price, Ronald J. Waicukauski, Matthew W. Conrad, Indianapolis, IN.

Listen to the oral arguments here.

Posted by Marcia Oddi on Thursday, May 06, 2004
Posted to Indiana Decisions

Indiana Decisions - One new Court of Appeals decision posted today

Danny Means v. State of Indiana (5/6/04 IndCtApp) [Criminal Law & Procedure]
Ratliff, Senior Judge

The attempted murder instruction given by the trial court, while lacking the clarity contemplated by our supreme court, did not constitute reversible error. The accomplice instruction, while erroneous, did not constitute fundamental error. The trial court did not err in refusing to instruct the jury on the lesser offense of criminal recklessness, and trial counsels actions did not rise to the level of ineffective assistance of counsel. Finally, a remand for re-sentencing is not warranted, and the trial courts imposition of enhanced and consecutive sentences is appropriate. Affirmed.
RILEY, J., and MATHIAS, J., concur.

Posted by Marcia Oddi on Thursday, May 06, 2004
Posted to Indiana Decisions

Indiana Decisions - One from 7th Circuit

USA v. SHEIKH, JAMAL A. is an appeal from the ND Ind, South Bend Div. (Judge Miller). Here Judge Williams writes for the panel that includes Judges Posner and Kanne:

A jury convicted defendants Jamal Sheikh and Raed Alsheikh of aiding and abetting food stamp redemption fraud and conspiracy to defraud the United States. At sentencing, the district court enhanced both defendants sentences by two levels for obstruction of justice, and Sheikhs sentence by three levels for his leadership role in the offense. Defendants appeal these sentence enhancements, but for the reasons stated below, we affirm.

Posted by Marcia Oddi on Thursday, May 06, 2004
Posted to Indiana Decisions

Law - Donald Trump, Indian Gaming, and Indiana Tie-ins

"Trump Among Those Named in Inquiry Into Bankrolling of Would-Be Tribes," is the headline to this story in the NY Times today that begins:

Donald Trump and other major casino investors have quietly spent tens of millions of dollars to help Indian groups in Connecticut finance campaigns aimed at winning federal recognition as Indian tribes, according to testimony on Wednesday before a House committee.

The disclosure, made before the House Committee on Government Reform, gets to the heart of a major concern of critics who say private investors like Mr. Trump are bankrolling the efforts of would-be tribes in the hopes of grabbing a share of the Indian gambling industry. Federal tribal recognition allows Indian tribes to build casinos. * * *

Mr. Benedict noted how drastically developers have changed their attitudes toward Indian gambling. "Initially, casino moguls like Donald Trump attacked the rise of Indian casinos as a fraud," he said. "But Trump and other casino entrepreneurs recognized the writing on the wall and adopted an 'If you can't beat them, join them' approach."

Here is the House Committee on Government Reform webpage on the hearings yesterday, including the chair's opening statement and copies of witness testimony.

Meanwhile, the Times business section has this story, titled "Trump Hotels Digs Deep for Cash to Shore Up a Teetering House." Some quotes:

Mr. Trump is essentially placing a high-stakes bet that his casinos will generate enough cash over the next few weeks to make a $73.1 million debt payment that is due at the end of the month. It will be a tight squeeze, even for someone with the feline financial dexterity of Mr. Trump. Bankruptcy looms. * * * Of course, one way out of this mess is to find a friendly outsider with deep pockets. Mr. Trump is contemplating just that. He says he is willing to cede control of the company and his job as chief executive to secure a $400 million cash infusion from an investment bank, an arrangement that would be subject to the approval of the company's wary and battered bondholders. * * *

Even if Trump Hotels has the cash to make its payment this month, it faces other coupon payments this fall and thereafter. Marvin Roffman, an analyst and longtime critic of Mr. Trump who predicted the Trump Taj Mahal's 1991 bankruptcy, is once again gloomy about Mr. Trump's prospects. "He continues to see erosion in market share, his working capital is gone and the interest rate meter is starting to tick up," Mr. Roffman said. "He is caught between a rock and a hard place. Now, he knows how his 'Apprentices' feel."

Here is a story from last week about Trump's proposal to build a casino is southern Indiana. The lead:
Billionaire developer Donald Trump wants to build a $123.5 million riverboat casino complex in southern Indiana under a plan that would include buying and restoring a historic hotel, his gaming company says. Under a proposal released Monday, Trump Hotels & Casino Resorts said its riverboat complex would include a golf course, a restaurant and employ about 600 people.
And here is an Andrea Neal opinion piece published in the Indianapolis Star yesterday that begins:
Let's hope the Indiana Gaming Commission is less impressionable than some Orange County residents, who've been hypnotized by Donald Trump's grand vision for a casino complex in French Lick. "We're not supposed to say, but we want Trump," one of those residents, Geneva Street, was quoted saying in the April 28 Star. "I don't care if the other two drop out as long as we have Trump." Trump Hotels & Casino Resorts is one of three groups that submitted confidential bids April 23 to the Indiana Gaming Commission, which will decide this year on a casino operator for the southern Indiana community. Also in the hunt are Orange County Development, a partnership anchored by Indiana basketball legend Larry Bird, and Lost River Development, which has French ties. All three released some information about their proposals, but the full details won't be aired until a hearing in July. It's a three-way contest with more drama than "The Apprentice" and the promise of jobs for as many as 500 people.

In bordering states. Yesterday the Chicago Tribune and a number of other papers carried stories about proposals for an Indian casino in Lynwood, Illinois, right across the Indiana state line.

The Wisconsin-based Ho-Chunk Nation unveiled plans Monday for a casino complex in the south suburbs that would include a luxury hotel, water park, stores and an American Indian cultural center and museum. The proposed casino, on 432 acres on the northeast corner of Stony Island Avenue and Glenwood-Dwyer Road in Lynwood, would be the state's first under a 1986 U.S. law giving Native American tribes the right to operate gaming facilities.
A story yesterday in the Munster Times reported:
Ho-Chunk of Black River Falls, Wis., which operates four gaming facilities in Wisconsin, was foiled in attempts to expand its gambling venues in La Crosse, Wis., and upgrade its DeJope Bingo Hall in Madison, Wis., into a full-fledged, Class III gambling casino. Dane County voters opposed Ho-Chunk's casino expansion proposal in the state capitol in a Feb. 19 referendum.
The story continues:
Tom Shields, legal counsel for the Pokagon Band of Potawatomi, which is poised to build its Four Winds Casino just across the Indiana state line in New Buffalo, Mich., after beginning the process in 1996, said the Band "supports all other tribes' rights to have a casino on their land, as long as they follow the rules and go through the same process as every other Indian nation." Yet, he warned of a long, protracted process -- particularly if the Ho-Chunks need to take land in trust. "It can take five, to 10 years, or entire generations, he said. "The federal government always allows the way, but the road is very rocky and tough to travel.''
[Update 5/9/04] Today's (Sunday's) Indianapolis Star has a story titled "Casinos face competition: Neighboring states try to grab share of gambling dollars." Some quotes:
A huge share of Indiana's growing casino business comes from across the state's borders, where competitors are pushing hard to keep their gamblers at home. * * *

The most aggressive competition may come from Illinois, where legislators this week could act on a proposal to add as many as three casinos in the Chicago area and relax rules on gambling at the area's four existing casinos. And earlier this month, the Ho-Chunk Nation of Wisconsin announced plans to open the nation's largest Native American casino south of Chicago. That could drain millions from Indiana's casinos in the north.

But changes in Illinois aren't the only threat facing the Indiana casinos, where $27 billion was wagered in 2003. Officials in Kentucky, Ohio and Michigan also are looking at the expansion of gambling to help fill growing budget needs of state and local governments.

Posted by Marcia Oddi on Thursday, May 06, 2004
Posted to General Law Related

Wednesday, May 05, 2004

Law - Judge Cedarbaum's opinion denying Martha Stewart's motions for a new trial

According to this AP report:

NEW YORK (AP) A federal judge Wednesday turned down Martha Stewart's motion for a second trial based on allegations that a juror lied about his arrest record on a pre-trial questionnaire.
Here, via Findlaw.com, is Judge Miriam Goldman Cedarbaum's (SD NY) May 5, 2004 23-page opinion denying Martha Stewart's motion for a new trial. And here is Judge Cedarbaum's 14-page denial of Peter Bacanovic's motion.

The indictment that initiated the case against Stewart and Bacanovic is here.

[Update 5/6/04] Here is today's NY Times report titled "Martha Stewart Is Denied New Trial by U.S. Judge."

Posted by Marcia Oddi on Wednesday, May 05, 2004
Posted to General Law Related

Environment - Reclaiming Indiana's Lake Michigan Shore

"Shoreline reclamation project advances - LAKE/PORTER COUNTIES: State, local officials pledge money as blueprints are prepared for 2005," is the headline today to this story in the NWI Times. Some quotes:

GARY -- Visionaries for a plan to recapture the Indiana lakeshore for recreation named a Chicago-based company to develop the blueprint.

The Marquette Greenway Plan, developed by U.S. Rep. Pete Visclosky, D-Ind., and announced last fall, involves the transformation of Northwest Indiana's lakeshore from an industrial wasteland to a recreational site covering about 45 miles from the Illinois state line to the eastern edge of Portage.

The plan calls for reclaiming 75 percent of the lakeshore with a 200-foot setback to be used for a continuous pedestrian/bicycle trail along the shore. * * *

The Indiana Department of Natural Resources will fund $160,000 of the project, while the mayors of Gary, Hammond, East Chicago, Portage and Whiting will provide a $40,000 match, or $8,000 from each city.

John Fekete, environmental director for Ispat Inland Inc., said he's excited about the project because it brings together a lot of ideas that have been reviewed in the last few years. "We've worked before with East Chicago, IDEM and the DNR on cleanup ideas," he said. "From industry's perspective, we're all very interested in these plans."

See the Oct. 29, 2003 Indiana Law Blog entry, also titled "Reclaiming Indiana's Lake Michigan shore."

Posted by Marcia Oddi on Wednesday, May 05, 2004
Posted to Environmental Issues

Indiana Decisions - One Supreme Court and Three Appellate Court Decisons Posted Today

Michael E. Highhouse, M.D. v. Midwest Orthopedic Institute, P.C. (5/5/04 IndSCt) [Employment Law]
Boehm, Justice

We hold that a bonus calculated on the basis of both the employees production and also the expenses of the overall business is not a wage governed by the Indiana Wage Payment Statute. * * *

Conclusion. This case is remanded to the trial court with instructions to enter summary judgment for Highhouse on the claim for bonuses calculated on collections after June 30, 1999, and to enter summary judgment for MOI on the claim for nonpayment of wages under the Wage Payment Statute.
Shepard, C.J., and Dickson, Sullivan and Rucker, JJ., concur.

K.S. v. State of Indiana (5/5/04 IndCtApp) [Criminal Law & Procedure]Barnes, Judge
The juvenile court failed to obtain jurisdiction in this matter because the record fails to disclose that it independently approved the filing of the original delinquency petition after considering probable cause of delinquency and the best interests of the child and the public. We must reverse and vacate the original delinquency adjudication as well as all of the orders flowing from it, including K.S.s commitment to the DOC for violating his probation. Reversed.
KIRSCH, C.J., and FRIEDLANDER, J., concur.
Lex, Inc., et al. v. Board of Trustees of the Town of Paragon (5/5/04 IndCtApp) [Planning & Zoning; Constitutional Law]
Riley, Judge
[Lex, Inc.] appeal the trial courts order denying its Permanent Injunction against [the Board], enforcing the Boards Ordinance 2002-8 (the Ordinance), that prohibits the issuance of the initial license for a mobile home more than 5 years old for placement within the Boards town limits. We affirm. * * *

[Issues] 1. Whether the trial court erred in denying its Complaint for permanent injunction because the Ordinance constitutes an ultra vires act; and 2. Whether the trial court erred in denying its Complaint for permanent injunction because the Ordinance violates the Equal Privileges Clause of the Indiana Constitution. * * *

[I]n interpreting the Home Rule statute as a whole and giving the words their common and ordinary meaning, we find that the enactment of the Ordinance is a reasonable use of the powers granted to the Board in the Home Rule Statute. * * *

[Re issue 2] Our supreme court has determined that equal privileges and immunities claims brought under Article I, Section 23 are to be analyzed separately from claims brought under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id.; Collins v. Day, 644 N.E.2d 72 (Ind. 1994). A Section 23 analysis uses a single standard to determine whether a law violates the Indiana Constitution as opposed to a system of varying degrees of scrutiny depending on whether the classification involves a suspect class or a fundamental right, as with Fourteenth Amendment analysis. Id. That single standard consists of two requirements: First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. * * * Our review of the record clearly shows that the first prong of the Collins test has been satisfied. Specifically, the record shows that the Board enacted the Ordinance in order to ensure sanitary, efficient and economical placement of the mobile homes in the town of Paragon. Further, the Ordinance also seeks to ensure that the mobile homes are connected and properly used between municipal utilities and to insure attractive and sanitary use of the mobile homes. Therefore, we find that the Boards reasons for enacting the Ordinance are reasonably related to inherent differences between mobile homes that are five years old and older and those that are less than five years old.

Nevertheless, we must also apply the second prong of the Collins test, to ensure that the special burden is uniformly applicable and equally imposed on all persons similarly situated. Our review of the record shows that the Ordinance satisfies this prong of this test. In particular, the record is devoid of evidence where Lex shows that the Board granted a license to an owner of a mobile home five years old or older. On the contrary, the record reveals that the Board previously denied mobile home permits for mobile homes due to the age of the mobile home, i.e. over five years old. Moreover, the record discloses that the Board does not contend that the grant of privilege or immunity is not equally applicable to and available for all persons who satisfy the requirement. In Collins, our supreme court stated that one who challenges legislation under the privileges and immunities clause of the Indiana Constitution has the burden to negate every conceivable basis which might have supported the classification. * * * We find that Lex has failed to meet this burden. Accordingly, we conclude that the Ordinance does not violate Article 1, Section 23 of the Indiana Constitution. * * *

Based on the foregoing, we conclude that the trial court did not abuse its discretion in denying Lexs Complaint for permanent injunction. * * * Affirmed.
DARDEN, J., and BAILEY, J., concur.

Todd Walker v. Joan Cuppett (5/5/04 IndCtApp) [Evidence]
Barnes, Judge
The Estate of Michael Walker appeals the trial courts judgment against it in the amount of $81,808.79 in a personal injury action brought by Joan Cuppett. We reverse and remand.

Issues. The issues we address today are: I. whether the trial court improperly precluded the Estate from introducing into evidence unredacted versions of Cuppetts medical records and bills, limited the Estates examination of three doctors, and excluded Walkers videotaped deposition from evidence; and II. whether the trial court abused its discretion in refusing to grant the Estate leave to conduct an independent medical exam (IME) of Cuppett. * * *

Conclusion. The trial court abused its discretion in refusing to allow the Estate to present any evidence, through documentation and the direct and cross-examination of physicians, that there were other possible causes of Cuppetts chronic neck pain and headaches aside from the accident with Walker. It also abused its discretion in allowing Cuppett to place redacted versions of her medical records and bills into evidence. Therefore, we reverse the judgment against the Estate, as well as the Trial Rule 37 sanctions, and remand for a new trial on the subject of damages. Reversed and remanded.
FRIEDLANDER, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Wednesday, May 05, 2004
Posted to Indiana Decisions

Tuesday, May 04, 2004

Indiana Decisions - More on the upcoming underage drinking case argument

Updating our Indiana Law Blog entry from Sunday is this comprehensive coverage today by the Edinburgh Courier on the oral argument to be held Friday at 10:00 am before the Indiana Court of Appeals in the chapel on the Franklin College campus. Some quotes from the story:

The Johnson County Bar Association invited the appeals court for its annual Law Day observance where young people learn about the legal system and suggested Franklin College as the venue. Classes from the college as well as Center Grove High School will attend.

It really gives an opportunity to allow the public, students of government or law classes a hands-on opportunity to view law in action, said Greenwood attorney Linda Meier, one of the Law Day organizers. Its a real case; its going to have real consequences and a real impact. This is a real Court of Appeals oral argument that will either result in an affirmed (decision) or a reversal.

[Judge Margret] Robb selected a case for the court of appeals to hear that would be of interest to college students. She was trying to find something that would be age-appropriate and something that could impact their lives as well, and would be interesting, Meier said.

Also on the panel are Judges Sharpnack and Patricia Riley. More:
Although the public is invited to Fridays case, the normal rules of courtroom decorum apply while the court is in session. For example, recording and photography are not permitted. After the formal arguments end, however, the judges will take questions from the audience and permit cameras.

Posted by Marcia Oddi on Tuesday, May 04, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit Opinions Today

BURLINGTON SANTA FE v. BROHD LOCOMOTIVE ENG, from the ND Il., involves an action under the Railroad Labor Act.

In DELGADO, NICOLE v. STEGALL, JAMES, from the CD Ill., "Nicole Delgado, a former student at Western Illinois University, a state university, claims to have been harassed by a professor at the university named James Stegall." The lower court granted summary judgment to defendants, holding that "Delgado had failed to establish a violation of Title IX by the university and that Title IX provides the exclusive federal remedy for a teachers misconduct toward a student; the latter ruling let Stegall off the hook." Writing for the panel, Judge Posner affirmed in part, reversed in part, and remanded.

USA v. NOBLE, JOHN is a 3-page opinion reversing the WD Wis. that begins:

BAUER, Circuit Judge. This is the third appeal dealing with John Nobles sentence. In the first, we vacated his 30-year sentence for possession of cocaine with intent to distribute based on the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000); see also United States v. Noble, 246 F.3d 946 (7th Cir. 2001) (Noble I). On remand, the district court reduced his sentence on that count but increased the sentence of another, and ordered them to run consecutively, which again left Noble with the same 30-year sentence. On his second appeal, Noble argued that the imposition of consecutive sentences was an Apprendi violation and that there was no reliable evidence supporting the district courts decision to attribute an additional 65 ounces of cocaine to Nobles relevant conduct calculation. We held that there was no Apprendi violation, but that the evidence supporting the amount of the cocaine was not reliable. See United States v. Noble, 299 F.3d 907 (7th Cir. 2002) (Noble II). At the second re-sentencing, the district court allowed the government to re-call witness Steven Jobe to testifyin a second attempt to support the inclusion of the 65 ounces of cocaine in Nobles relevant conduct calculation. Still unable to support the 65 additional ounces of cocaine (equal to 351 kilograms), the government used Jobes testimony to support a new, lower estimate of 300 kilograms (the Jobe Quantity), which was added to Nobles relevant conduct calculation. The district court then resentenced Noble to 315 months (26.25 years) in prison. Noble now appeals this sentence. * * * We remand for the district court to impose a sentence that is not based on the additional testimony taken after Noble II and not based on the evidence we concluded was unreliable.

Posted by Marcia Oddi on Tuesday, May 04, 2004
Posted to Indiana Decisions

Law - Changes in Stock Offerings Coming?

Securities law is not on the Indiana Law Blog's regular beat, but this story today in the Washington Post on the handling of IPOs is an exception. The story remarks that, at least to some observers, "The old order, at least when it comes to doling out IPO shares, is passing away," and points to these signals:

First, Internet search firm Google Inc. -- about to launch the most anticipated initial public sale of stock in years -- announced it would sell most of the coveted shares through an auction, bypassing the methods beloved by investment bankers.

Then on Monday came the verdict in the trial of one of the most successful practitioners of the 1990s initial public offering (IPO) boom, former Wall Street banker Frank P. Quattrone. He was convicted of obstructing investigations into how his former employer, Credit Suisse First Boston, handled such stock sales.

The Quattrone verdict did not address the underlying alleged abuses in IPOs. Instead, Quattrone was convicted of obstructing federal probes into those abuses, specifically into "laddering," a system in which Wall Street firms underwriting a company's issuance of stock award hot shares to investors who promise to buy more once the stock starts trading. Under such deals, privileged investors can make big profits on the initial spike in the share price, while the bank gets some insurance that the share price will be bolstered in the early going.

Langevoort and others said Quattrone's conviction, coupled with regulatory settlements and pending rule changes, would strongly discourage Wall Street firms from engaging in laddering and some of the other IPO practices common to the tech stock boom.

Those other practices include "spinning," in which Wall Street firms dole out hot IPO shares to favored executives at companies that promise to steer other business their way. Regulators have also probed Wall Street firms for demanding large commissions from recipients of IPO shares.

The story also points out that Google's auction could "discourage firms from setting artificially low prices on IPO shares. This practice allows for big one-day price 'pops' on the open market and thus big profits for people fortunate enough to hold the initial shares. But such low-balling also often angers the companies going public because it demonstrates that they could have sold their shares at higher prices."

[Update 5/0/04] Here is another story with the same theme, titled "Google May Have Pre-empted Regulators on Public Offerings," from the 5/4/04 NY Times. Some quotes:

Once, Wall Street considered it embarrassing to have a stock soar right after it went public, because the underwriters had obviously left a lot of money on the table and deprived the issuing company of the best price for the shares sold.

But in the late 1990's it became a badge of honor to have a new offering double or even quadruple the first day of trading. That meant the potential for phenomenal profits to those who could buy at the offering - profits that could be realized within minutes after the stock began trading, long before it became clear whether the company would prosper or fail. * * *

Google, proprietor of a successful Internet search engine, wants to play by different rules. It proposes to sell its shares in a version of a Dutch auction. That means any investor - whether the best friend of the lead underwriter or a small investor in Fargo, N.D. - should have an equal chance of buying shares at the offering price. The auction will set the price.

Whether either of those investors will do well is another issue. In the old days, investors in offerings known to be hot could be sure of making money, and so they pushed to get in on the offering regardless of how much they thought the shares might be worth or how likely the company was to prosper in the long term. They might flip the shares immediately for a quick profit.

Posted by Marcia Oddi on Tuesday, May 04, 2004
Posted to General Law Related

Environment - Clean air actions

As reported here in the NY Times today, the Supreme Court yesterday:

refused to hear an appeal by the federal government that would have applied New Source Review, a controversial section of the Clean Air Act governing aging coal-burning plants, to power plants owned by the Tennessee Valley Authority. The court let stand a decision by an appeals court in Atlanta that had said it lacked jurisdiction to rule on the merits of the case whether the Environmental Protection Agency had properly applied the review because the means of review, through Administrative Compliance Orders, was unconstitutional and a violation of due process.
The Times story continues:
Last Wednesday, the court ruled 8 to 1 that the South Coast Air Quality Management District, which sets emission rules in the Los Angeles metropolitan area, cannot impose stricter standards on vehicle fleet operators than those established by the federal Clean Air Act.
Here is last week's Indiana Law Blog entry on the Engine Manufacturers Association, et al. v. South Coast Air Quality Management District, et al ruling.

The Washington Post today also has a short item on the TVA action (the case is 03-1162 LEAVITT, ADM'R, EPA, ET AL. V. TENNESSEE VALLEY AUTH., ET AL.). Some quotes:

The Supreme Court declined to consider yesterday whether the government-owned Tennessee Valley Authority had the authority to disregard a demand from Washington to clean up its coal-fired power plants. The Bush administration had asked the court to step into a dispute over the Environmental Protection Agency's authority. The justices declined, without comment, to use the EPA's appeal to clarify how conflicts between two executive branch agencies should be handled.

The TVA had challenged the EPA's authority when it became a target of aggressive Clinton administration initiatives to reduce smokestack emissions from aging coal-fired power plants. The Bush administration contends that the TVA did not have the right to litigate the dispute over the objection of the attorney general.

The TVA had convinced the U.S. Court of Appeals for the 11th Circuit in Atlanta that it could temporarily disregard orders of the EPA while the two sides fought over pollution issues in court. That ruling undermined the EPA's enforcement authority and is a "textbook example of the need for the attorney general, who represents the overall interests of the federal government, to control government litigation," Solicitor General Theodore B. Olson said in a filing with the Supreme Court.

In a regional air dispute, the Louisville Courier-Journal reports today:
Louisville's metro government moved yesterday to join an Environmental Protection Agency lawsuit seeking to force Cinergy Corp. to put new pollution controls on its Gallagher generating station across the Ohio River in Floyd County, Ind.

"We hope we can get the attention" of Cincinnati-based Cinergy officials, Mayor Jerry Abramson said. "It is our contention that emissions from the Gallagher plant are significantly contributing to our air quality challenges."

If allowed to enter the case by a federal judge in Indianapolis, Louisville would become the first city to join several states and two environmental groups in the lawsuit, which was filed by the Clinton administration's EPA and Department of Justice in 1999.

Posted by Marcia Oddi on Tuesday, May 04, 2004
Posted to Environmental Issues

Monday, May 03, 2004

Indiana Decisions - Several appellate level decisions posted today

Michael Ousley v. State of Indiana (5/3/04 IndCtApp) [Criminal Law & Procedure]
Baker, judge

Sharp next contends that the trial court erred in requiring him to submit a DNA sample pursuant to Indiana Code section 10-13-6-10. Specifically, he argues that such an order is unconstitutional under the Fourth Amendment of the federal constitution and Article I, Section 11 of the Indiana constitution inasmuch as there is a total absence of probable cause or reasonable suspicion that would justify the taking of a DNA sample.

Sharp presents a thorough and well-researched argument for the unconstitutionality of Indiana Code section 10-13-6-10. However, a defendant may not raise one ground for objection at trial and argue a different ground on appeal. Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000). While Sharp did object to submission of his DNA sample, he did so on the basis that it was not required of probationers. Because Sharp failed to raise an objection on constitutional grounds before the trial court, he has waived that argument for appeal. See Hatchett v. State, 740 N.E.2d 920, 924-25 (Ind. Ct. App. 2000) (claim that statute violated both federal and Indiana constitutions waived on appeal for failure to make proper objection at trial). * * * [W]e find that Sharp waived his argument that it is unconstitutional to require him to submit a DNA sample. * * *
FRIEDLANDER, J., and BAILEY, J., concur.

Brent D. Sharp v. State of Indiana (5/3/04 IndCtApp) [Criminal Law & Procedure]

Warren W. Spurling and SSS Development, LLC v. Vanderburgh County Property Tax Assessment Board of Appeals (4/30/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]
Come now the Petitioners, Warren W. Spurling and SSS Development, LLC, and file a Petition for Rehearing pursuant to Indiana Appellate Rules 54 and 63. In their Petition, the Petitioners challenge this Courts holding in Spurling v. Vanderburgh County Property Tax Assessment Board of Appeals, No. 82T10-0205-TA-44, slip opinion (Ind. Tax Ct. November 13, 2003). Having reviewed the Petition, the Court now GRANTS the Petition and, in lieu of scheduling a rehearing, addresses the merits of Petitioners Petition in this order. * * * Conclusion. Upon review and for the foregoing reasons, this Court GRANTS the Petitioners Petition. The Court REMANDS the case to the Indiana Board with instructions to consider the Petitioners cost evidence in light of 50 IAC 17-7-3.

Posted by Marcia Oddi on Monday, May 03, 2004
Posted to Indiana Decisions

Law - More on electronic voting

The news this weekend was that "California's secretary of state has decertified all touch screen voting systems in the state, and has asked the attorney's general office to consider criminal prosecution of Diebold Inc.'s Diebold Election Systems division." (see that story here) And comprehensive coverage can be found here, from the 5/1/04 LA Times.

Today's NY Times has a story about the Johns Hopkins professor who "published the first in-depth security analysis of Diebold's touch-screen voting software," in a story titled "Who Hacked the Voting System? The Teacher."

[Update 5/4/04] "E-Vote Problems Overwhelm Feds," is the headline to this AP story today.

Posted by Marcia Oddi on Monday, May 03, 2004
Posted to General Law Related

Indiana Decisions - Among the decisions posted today by the 7th Circuit

In HARRIS, JEFFREY v. USA, a panel headed by Judge Kanne today affirmed the district courts (SD Ind, Judge McKinney) denial of the petition for a writ of habeas corpus.

In USA v. HANDLIN, JAMES F., the facts read more like a black and white movie plot than real life, with Judge Bauer's opinion beginning:

Illiopolis, Illinois, a small town with a population of 916, was the site of a combustible criminal conspiracy that raged for a period of years. Between the years of 1991 and 1997, the area in and around this small town saw eight successful acts of arson and one failed attempt. It is a wonder that there was anything left standing in the area when the ashes finally settled. The story is as follows * * *.

Posted by Marcia Oddi on Monday, May 03, 2004
Posted to Indiana Decisions

Sunday, May 02, 2004

Law - Texas Supreme Court Chief Resigning

How Appealing has provided links to a number of stories this weekend in Texas papers about the Chief Justice of Texas resigning. From the Fort Worth Star-Telegram:

Texas Supreme Court Chief Justice Tom Phillips -- a champion of judicial election reform who is credited with rebuilding the high court's once-tarnished image -- announced Thursday that he is retiring. Phillips, 54, is stepping down in September from the state's highest civil court to become a professor at the South Texas College of Law in Houston and said he will look for other career options while there. * * *

Rumors about Phillips' retirement have been circulating for months. Phillips said he ran for re-election in 2002 to bring continuity to the court after five of the nine seats on the court came up for grabs. Phillips then took the opportunity to push one more time to change the way the state selects its judges. He backed a bill allowing voters to decide whether judges should be appointed instead of being elected. Phillips felt so strongly about how campaign contributions tainted the public's perception of the judiciary that he refused to take donations during his last campaign.

The Houston Chronicle has had several stories (other Texas papers also have run stories, but require intrusive subscription information before one can read them). From a 4/30/04 story:
AUSTIN -- Taking a parting shot at a money-driven election system that gave him four victories but little comfort, Texas Supreme Court Chief Justice Tom Phillips announced Thursday he will resign in September to teach at Houston's South Texas College of Law.

The first Republican chief justice of modern times, Phillips has presided over the state's highest civil court for 16 years, a period marked by major political and philosophical changes. * * * Phillips was a state district judge in Houston when Clements appointed him to succeed Democrat John Hill, who had resigned in midterm.

Before the resignations of Hill and two other Democratic justices about the same time, the nine-member court was all Democratic and strongly aligned philosophically with plaintiffs' lawyers. Within a few years, Republicans had captured all of the court's seats, as they did other statewide offices, and businesses and insurance companies began prevailing over major legal challenges brought by plaintiff-consumers. Consequently, the court has received much criticism in recent years from consumer advocacy groups. * * *

For years, Phillips has advocated replacing Texas' partisan election of judges with a "merit selection" plan, under which the governor would appoint judges. The judges would later face voters in retention elections but wouldn't have opponents on the ballot. Voters would simply decide whether a judge should remain in office or be replaced by another gubernatorial appointee. [This would be similar to Indiana's system.]

The Legislature has repeatedly refused to change the system, which Phillips' Democratic predecessor also attacked upon leaving the court 16 years ago.

"Our most pressing problem, I believe, is judicial selection. The high-dollar, partisan system creates great instability in the judiciary and erodes public confidence in the fairness of our decisions," Phillips said Thursday.

This Chronicle story, from Saturday, begins:
The more things change, the more they stay the same. Except for a Republican governor named Bill Clements, state government in 1988 was still mostly under Democratic control. Texans (the few who bothered to vote) elected their state judges, and members of the Texas Supreme Court were under attack for taking campaign contributions from special interests.

And, oh yes, Chief Justice John Hill, a Democrat, resigned in midterm, criticizing the money-driven, partisan election system and calling for change.

Now, Republicans are firmly in control in Austin. Texans (the few who bother to vote) still elect their state judges, and members of the Supreme Court are still being criticized for taking campaign contributions from special interests. And, last week, Hill's Republican successor, Tom Phillips, repeated earlier calls for scrapping the money-driven, partisan election system as he announced plans to step down in midterm. * * *

Some legislators want to change the system and have been trying for years. The appointment-retention plan -- or something similar -- would be a better way of choosing judges. But judicial selection is not a high legislative priority. That is partly because the high-stakes war over control of the high court, which was raging when Phillips came on board, is now off the front pages of the newspapers. Elections for the Supreme Court are no longer competitive in a philosophical or partisan way. Defense-oriented Republicans now hold all nine court seats, thanks to the doctors, businesses and insurance companies that have contributed millions of dollars to their campaigns -- and to Texas' recent partisan makeover. * * *

Another hurdle to changing the judicial selection process is opposition from both major political parties. About the only issue on which the state Democratic and Republican leadership agree is that Texans should be allowed to continue electing their judges, and partisans, of course, prefer a partisan ballot. * * * The biggest obstacle to change, however, may be the voters, who would have the final say because changing the judicial selection process would require a constitutional amendment. Public opinion polls, although inconclusive, have indicated many Texans want to keep electing judges, even though most people don't vote and many who do know nothing about the candidates.

Posted by Marcia Oddi on Sunday, May 02, 2004
Posted to General Law Related

Indiana Decisions - Interesting underage drinking case to be argued

"Boat Club takes case to Indiana Court of Appeals," is the headline to this story posted 4/30/04 by WNDU-TV in South Bend:

Can underage drinkers be sued if they use a fake ID to get into a bar? That's a question the Indiana Court of Appeals wants to hear more about. Oral arguments have been scheduled for May 7th in a case that originated in South Bend. In January of 2003, police caught more than 200 underage drinkers inside a bar called Boat Club. The owners of the bar face potential penalties as a result. They, in turn, then filed lawsuits seeking damages from the underage drinkers. A local court dismissed the suits, so the bar owners took the case to the Indiana Court of Appeals.
Background is available via this story on the National Association of Convenience Stores website. Headlined "Hazards of Underage Drinking Get More Costly--For The Drinkers," the 7/31/03 story, dateline South Bend, begins:
The Boat Club in South Bend, Ind., is looking for restitution from underage drinkers caught in a raid at the bar. Mike McNeff, owner of The Boat Club's parent company, The Millennium Club, is suing the underage patrons nabbed in the raid for $3,000 per person for misrepresentation, which constitutes civil fraud, reports Fox News.

On January 24, Indiana State Excise Police, Indiana State Police and the South Bend police raided The Boat Club. The sting caught 213 underage drinkers. The Boat Club had a choice between losing its liquor license or being fined $5,000 and selling its liquor license to a new owner.

According to Fox News, more alcohol sellers are going after underage drinkers if their business suffers damages in such stings. For example, in 1998 John Korpita, owner of the Amherst Brewing Company, sued an underage patron who used two fraudulent IDs to gain access to his brewpub for $3,713 and won. Korpita had to pay a $2,500 fine when the underage drinker was found in his bar, so he filed a civil complaint against the customer.

This is from an October 2, 2003 editorial in The Observer, The Independent Newspaper Serving Notre Dame and Saint Mary's, headlined "Support Students, not Boat Club":
In an attempt to recoup some of the losses the bar faces from ATC prosecution, The Boat Club filed suit against the 200 underage patrons cited in the Jan. 24 raid, requesting $300 per case. For the students involved in these lawsuits, the legal process has been long, frustrating, expensive and confusing.

Students could opt to pay a South Bend attorney $500 to help them navigate through the court system or attempt to sort through the lawsuits by themselves if they could not afford attorney fees.

In addition, students who thought the lawsuit would be resolved within a few months discovered they were mistaken. After a South Bend judge dismissed about 40 suits, citing a lack of legal precedent for such litigation, The Boat Club choose to appeal those suits and attempted to force all other students to agree to continuances until April 2004, a delay of an additional seven months.

Because of its decision to appeal some of the lawsuits, The Boat Club has retained a second attorney to handle the appeals and must pay expensive court costs to file the suits in the Indiana Court of Appeals. The bar has already invested a significant amount of money in these lawsuits, paying $73 of court costs for each case plus attorney fees for South Bend lawyer Mitch Heppenheimer since last spring.

According to the Clerk of the Courts Online Docket entry, the oral argument is set for 10 a.m., Friday, May 7, 2004 at Franklin College, Franklin, Indiana. In addition, on 4/29/04 the Court issued the following order:

Posted by Marcia Oddi on Sunday, May 02, 2004
Posted to Indiana Decisions

Environment - More (kind of) on the 500 barrels of hazardous waste story

Yesterday, May 1, the Gary Post Tribune published an update to the "500 barrels of hazardous waste buried near Lowell" story. Unfortunately, as noted here before, the Tribune does not archive their stories, so if you don't access it the day the story is published, you are out of luck. As I didn't learn about yesterday's story until today, here is all that I can retrieve via Google -- a brief snippet:

OFFICIAL says no money remains in fund for properly closing ...
Gary Post Tribune - Gary,IN,USA
... Bruce Palin, deputy assistant commissioner of the Office of Land Quality for IDEM, said Feddeler had promised to replenish the bond with money he would receive ...
http://www.post-trib.com/cgi-bin/pto-story/news/z1/05-01-04_z1_news_14.html [this is the dead link]
Access earlier Indiana Law Blog entry here.

Posted by Marcia Oddi on Sunday, May 02, 2004
Posted to Environmental Issues

Law - A don't miss article on Justice Scalia; more

"In Re Scalia the Outspoken v. Scalia the Reserved," is the headline to a front-page feature story by Adam Lipak in the Sunday NY Times.

"Bush Executive Powers in the Balance: Supreme Court Opinions Expected to Define Authority to Combat Terrorism," is the headline of this story by Charles Lane in today's Washington Post that begins:

After hearing the final oral arguments of the term last week, the Supreme Court enters an intense two-month period of opinion-writing that legal analysts expect to produce some of the most momentous legal pronouncements in recent memory -- and no one has more at stake in the outcomes than President Bush. To a significant extent, what the court will be ruling on is the Bush administration's effort to carve out greater presidential power and privilege, in the realms of foreign and domestic policy.

Posted by Marcia Oddi on Sunday, May 02, 2004
Posted to General Law Related

Saturday, May 01, 2004

Law - Patriot Act Suppresses News Of Challenge to Patriot Act

"Patriot Act Suppresses News Of Challenge to Patriot Act," was the headline to this story published Thursday in the Washington Post that I, for one, had overlooked until today when I saw it mentioned in Dan Gillmor's column. Some quotes:

The American Civil Liberties Union disclosed yesterday that it filed a lawsuit three weeks ago challenging the FBI's methods of obtaining many business records, but the group was barred from revealing even the existence of the case until now. The lawsuit was filed April 6 in U.S. District Court in Manhattan, but the case was kept under seal to avoid violating secrecy rules contained in the USA Patriot Act, the ACLU said. The group was allowed to release a redacted version of the lawsuit after weeks of negotiations with the government. "It is remarkable that a gag provision in the Patriot Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court," Ann Beeson, the ACLU's associate legal director, said in a statement.
The redacted complaint and some other documents are available here on the ACLU site.

Posted by Marcia Oddi on Saturday, May 01, 2004
Posted to General Law Related