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Wednesday, June 30, 2004

Law - Sports Law: Title IX

"Title IX Trickles Down to Girls of Generation Z" reads the headline to this lengthy and really interesting report in the June 29th NY Times about "a new phase in the evolution of Title IX," lawsuits seeking "facilities and services that would be comparable" to those provided to boys. Some quotes:

These suits are often initiated by fathers like Johnson, who are part of what is known as the angry-dad phenomenon among people involved in Title IX matters.

"The fathers tend to get more riled up," said Sam Schiller, a Tennessee lawyer, who with his partner, Ray Yasser, has been involved in more than 30 Title IX lawsuits. "The fathers have already experienced the benefits of a full high school athletic experience. Then they have a daughter and she goes to high school and they can't believe she isn't being treated like they were."

While the familiar battles over Title IX take place at colleges and universities, the battleground has been extended to high schools and middle schools. It is not only lawsuits that have become more common. At the federal Department of Education, the agency responsible for enforcing Title IX, the number of complaints involving sex discrimination in high school and even middle school athletics has outpaced those involving colleges by five to one since 2001.

"High school is where the Title IX action is," said Bob Gardner, the chief officer of the National Federation of State High School Associations. "The colleges get all the attention, but Title IX isn't about the nation's elite college athletes. It's about providing a grass-roots gateway to sports that benefits millions."

Deeper into the story:

Colleges and universities are required by federal law to disclose all pertinent data on how they are treating and financing their athletic programs for men and women, but public schools' athletic departments have no disclosure requirement. So there is no data to assess the true level of gender equity nationally in high schools, middle schools or elementary schools.

Monitoring compliance is left to local school boards, activists, the courts or the Department of Education's Office for Civil Rights, which generally investigates after it receives a complaint. It does conduct periodic independent compliance reviews. * * *

A large percentage of high schools, perhaps even a majority, are still not in compliance with Title IX, said the leaders of several state high school athletic associations. At the same time, many state sports executives said they thought there has been tremendous progress.

"In one generation, we've gone from powder-puff basketball games to a competitive, beneficial, broad-based sports environment for girls," said Dorothy McIntyre, who recently retired after more than three decades as the executive director of the Minnesota State High School League. "But it was not accomplished without a lot of blood, sweat and tears. There were a lot of boys coaches slamming their fists on the table and a lot of girls coaches slamming their fist back and saying: 'I'm not going to take this.' "

And yet, while Title IX issues tend to be divisive at the collegiate level, many officials insist that many of the problems are resolved amicably in high schools. For example, it is unheard of for a high school to cut a boys team to help achieve gender equity, something that has become commonplace in colleges.

Posted by Marcia Oddi on Wednesday, June 30, 2004
Posted to General Law Related

Indiana Decisions - Four New Supreme Court Decisions Posted Today

Steven D. Cook v. State of Indiana (6/30/04 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice

There is conflicting authority as to whether, prior to any trial date being set, delays caused by a defendant extend the one-year deadline for bringing a defendant to trial under Indiana Criminal Rule 4(C). We hold that they do. * * *

We therefore hold that delays caused by action taken by the defendant are chargeable to the defendant regardless of whether a trial date has been set. To the extent inconsistent with this holding, Hurst, 688 N.E.2d 402; and Morrison, 555 N.E.2d 458, are overruled; and Carr, 790 N.E.2d 599; Nance, 630 N.E.2d 218; Solomon, 588 N.E.2d 1271; Harrington, 588 N.E.2d 509; and Miller, 570 N.E.2d 943, are disapproved. * * *

Conclusion. We grant transfer and affirm the trial court.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

Roy Lee Ward v. State of Indiana (6/30/4 IndSCt) [Criminal Law & Procedure]
Rucker, Justice

As the result of a brutal slaying Roy Lee Ward was convicted of murder and sentenced to death. He was also convicted and sentenced to a term of years for rape and criminal deviate conduct. In this direct appeal Ward raises several issues for our review, one of which is that this case should not have been tried in the county where the crimes were committed because of community bias and pervasive pretrial publicity. The record supports this contention. We are therefore constrained to reverse and remand this cause for a new trial. * * *

With his life at stake, we think the Constitution requires that the defendant “be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which [one half] of the members admit, before hearing any testimony, to possessing a belief in his guilt.” Irvin, 366 U.S. at 728. We conclude therefore that the trial court abused its discretion in failing to grant Ward’s motion for change of venue from the county, or in the alternative to draw the jury from another county. Accordingly, we reverse the trial court on this issue and remand this cause for a new trial. Judgment reversed and cause remanded.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur

W. Brent & Marina Gill v. Fred Pollert and Pollert's Inc., et al (6/30/04 IndSCt) [Procedure]
Dickson, Justice

We granted transfer in this case to consider the relation-back of a cross-claim filed timely but where leave of court was not sought and granted until after the expiration of the statute of limitations. * * *

Rosemary Adams Huffman v. Indiana Department of Environmental Management, et al. (6/30/04 IndSCt) [Administrative Law]
Sullivan, Justice

The Indiana Office of Environmental Adjudication dismissed Rosemary Huffman’s petition for administrative review of a decision of the Indiana Department of Environmental Management renewing a pollution permit for Eli Lilly and Company. We hold, as did the Court of Appeals, that whether a person is entitled to seek administrative review depends upon whether the person is “aggrieved or adversely affected” (as provided in statute) by the administrative agency’s decision and that the rules for determining whether the person has “standing” to file a lawsuit do not apply. We also conclude that a portion of the Office of Environmental Adjudication’s determination that Huffman was not entitled to seek administrative review was not supported by substantial evidence. * * *

The dispute in this case – whether Huffman is a proper party to seek administrative review – involves both a question of law and a determination of whether the OEA’s decision was supported by substantial evidence. * * *

Huffman takes the position that the common law doctrine of “public standing” would provide her standing to invoke judicial review in a trial court. * * * We hold that the statute, and only the statute, defines the class of persons who can seek administrative review of agency action.

With this understanding in mind, we now turn to whether the OEA properly found that Huffman is not aggrieved or adversely affected. We conclude that some of the OEA’s findings are not supported by substantial evidence. This conclusion is largely based on the procedural treatment given Lilly’s Motion to Dismiss. * * *

If the administrative law judge intended to apply Indiana’s trial rules, as Lilly requested by invoking Trial Rule 12(B)(1), the motion should have been treated as a 12(B)(6) motion. The question here is whether Huffman is a proper person to challenge Lilly’s permit and not whether IDEM has subject-matter jurisdiction over challenges to the permits it issues. IDEM always has jurisdiction over such challenges, and that does not change depending upon the petitioner. The standard for a 12(B)(6) motion is that articulated by the Court of Appeals:

In reviewing a Rule 12(B)(6) motion, a court is required to take as true all allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint. This Court views the pleadings in a light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party.

Huffman, 788 N.E.2d at 510 * * * [Here the Court concludes that] the OEA’s dismissal of Huffman’s Petition for Administrative Review was not supported by substantial evidence.

Conclusion. We affirm the OEA’s dismissal of Huffman’s claim as it relates to potential property damage and reverse as it relates to health problems. We remand to the trial court with instructions to remand to the OEA for further proceedings consistent with this opinion.

Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., concurs in result without opinion.

Posted by Marcia Oddi on Wednesday, June 30, 2004
Posted to Indiana Decisions

Indiana Decisions - One Tax Court Decision Posted

Guardian Automotive Trim, Inc. v. Indiana Department of State Revenue (6/30/04 IndTaxCt) [Sales/Use Tax Exemptions]
Fisher, J

Guardian Automotive Trim, Inc. (Guardian) appeals the final determination of the Indiana Department of State Revenue (Department) denying it several exemptions from sales and use tax for mask processing equipment and supplies it acquired during the 1993, 1994, and 1995 tax years (the years at issue). * * *

Guardian acquired equipment and chemicals for direct use in its manufacture of automotive trim parts. As a result, it is entitled to claim an exemption from sales and use taxes under both the equipment exemption and the consumption exemption. See Ind. Code Ann. §§ 6-2.5-5-3 and 6-2.5-5-5.1. The Department’s final determination is, therefore, REVERSED.

Posted by Marcia Oddi on Wednesday, June 30, 2004
Posted to Indiana Decisions

Indiana Decisions - Nine More Court of Appeals Opinions Today

Celleco Partnership, et al. v. Indiana Utility Regulatory Commission, et al. (6/30/04 IndCtApp) [Utilities; Trade Secrets]
Baker, Judge

Today we hand this case down along with a related case, Indiana Bell Telephone Co., Inc. d/b/a SBC Indiana, v. Indiana Utility Regulatory Commission , et al. No. 93A02-0306-EX-484 (Ind. Ct. App. June 30, 2004). [See next case] Appellants-petitioners Cellco Partnership, et al., (collectively, the Wireless Carriers) appeal an order issued by the Indiana Utility Regulatory Commission (IURC), which determined that intrastate revenues generated by the Wireless Carriers are disclosable public records and are not subject to trade secret protection. Furthermore, as in the SBC case, the Wireless Carriers maintain that the IURC erred in departing from established precedent regarding confidentiality of certain data without setting forth its reasons for doing so. Concluding that no reversible error occurred, we affirm the IURC’s order. * * *

When construing this portion of the order in conjunction with the remaining findings and conclusions, it is apparent that the IURC has fully examined the issues in this case, and it has made relevant factual findings in support of the judgment. Moreover, as explained in the findings, only a minority of the telephone companies has sought confidential treatment of the survey and the reports. The companies also have not shown consistency in requesting that the same information in different public records be treated as confidential. Additionally, not all of the companies requesting confidential treatment of the material have made the same confidentiality request for the reports in years past. In our view, the IURC got it right when it concluded that such a lack of unanimity or consensus as to the need for confidentiality, along with the lack of consistency in seeking confidential treatment for the same information, are factors that weigh against a finding that the various responses should be excepted from public disclosure. As a result, we reject the Wireless Carriers’ claim that the IURC failed to adequately explain why it chose to take a different approach and depart from its prior treatment of this data. Judgment affirmed.
ROBB, J., concurs.
BARNES, J., concur in result with opinion.

I concur in result with the majority’s opinion. Relying on the IURC’s categorization of the information that the Wireless Carriers sought to keep confidential, the majority concluded that such information constituted confidential information filed with a public agency and was subject to disclosure pursuant to Indiana Code Section 5-14-3-4(a)(5). I disagree with the majority’s assertion that confidential financial information filed with a public agency is subject to disclosure even if that same information constitutes a trade secret. * * *

Based on the minimal contents of the affidavits provided by the Wireless Carriers, they have not established that the intrastate revenues are protectable trade secrets subject to the disclosure exception in Indiana Code Section 5-14-3-4(a)(4). For this reason, I concur in result.

Indiana Bell (SBC) et al. v. Indiana Utility Regulatory Commission, et al. (6/30/04 IndCtApp) [Utilities; Trade Secrets]
Baker, Judge

Today we hand down two cases addressing the issue of whether certain information provided to the Indiana Utility Regulatory Commission (IURC) by telephone companies should be afforded trade secret or confidential information protection. In this case, appellant-petitioner Indiana Bell Telephone Company, Inc., d/b/a SBC Indiana (SBC) appeals from an order issued by the IURC denying its request to maintain the confidentiality of certain business data that had been submitted to the IURC. Specifically, SBC maintains that the order should have been granted because the information provided to the IURC constituted competitively sensitive trade secret material and a preliminary ruling had been made determining that the same information had been entitled to confidential treatment in an IURC order that was not challenged by any SBC competitor. SBC also argues that the order is contrary to law because the IURC failed to set forth its reasons for deviating from the rebuttable presumption that SBC’s information was entitled to trade secret protection.

Based upon our review of the record, we conclude that the findings were sufficient to support the IURC’s determination that the SBC information did not constitute trade secrets that is protected from public disclosure. We also observe that the IURC’s rationale set forth in the order for departing from established precedent that there is a rebuttable presumption that SBC’s data was entitled to trade secret protection does not warrant a reversal. Thus, we affirm the judgment of the IURC. We similarly hold in a companion case, Cellco Partnership et al. v. Indiana Utility Regulatory Commission, No. 93A02-0307-EX-639 (Ind. Ct. App. June 30, 2004). * * *

Judgment affirmed.
ROBB, J., concurs.
BARNES, J., dissents with opinion.

I respectfully dissent. I am not comfortable with affirming the IURC’s decision by relying on its assessment of an outside-the-record document that this court cannot review. * * * I decline to jump on the “competition” train without the sufficient tracks of on-the-record evidence being present. I would reverse the IURC’s order denying trade secret protection to the information SBC seeks to keep confidential.

Metropolitan Development Commission of Marion County v. Pinnacle Media, LLC (6/30/04 IndCtApp) [Zoning]
Friedlander, Judge

The Metropolitan Development Commission of Marion County (the Commission) and the Department of Metropolitan Development of the City of Indianapolis (the DMD) (referred to collectively as “the City”) appeal the grant of summary judgment and the award of attorney fees in favor of Pinnacle Media, LLC (Pinnacle) on Pinnacle’s complaint for declaratory judgment. The City presents the following restated and consolidated issues for review: Did the trial court properly grant summary judgment in favor of Pinnacle? Did the trial court abuse its discretion in awarding attorney fees to Pinnacle pursuant to IC 34-52-1-1? We affirm in part and reverse in part. * * *

Under the specific circumstances presented in the instant case, we conclude that the vested rights doctrine applies to estop the City’s belated effort to acquire jurisdiction over construction of the signs in question. Consistent with the doctrine, a property owner should have the ability to survey the zoning laws as they exist at a particular time and determine with certainty which permitting authorities require an application. Once a property owner applies for the relevant building permits under the prevailing zoning laws, the owner’s rights vest as against other government units who subsequently attempt to intervene by enacting laws to assert jurisdiction (i.e., to require permits) over the subject matter of the pending permit applications. As our supreme court observed in a slightly different context, “A government which exercises such police power over the property of its citizens without any fixed standards which are known to the citizens and the enforcing officials is a government by men, and not by law.” Knutson v. State, 160 N.E.2d at 202.

The City alternatively argues that even if the doctrine of vested rights applies in this instance, the law in existence at the time Pinnacle applied for permits from INDOT forbade the erection of billboards on unzoned land. Over two years after the July 1999 letters and just before Pinnacle initiated litigation, the City notified Pinnacle that it now believed that the position expressed in the July 1999 letters was incorrect, as the City had previously not recognized the applicability of Indianapolis Rev. Code § 730-505(a)(1). The City argues that § 730-505(a)(1) applies to both unzoned land and zoned land. * * *

We initially ponder how a civil zoning violation could occur from the erection of a sign on unzoned property. The City does not satisfactorily answer this question. Moreover, an examination of Chapter 734, which provides the numerous sign regulations for Marion County, reveals that Chapter 734 governs only signs located within zoning districts in Marion County. * * * Reading § 730-505(a)(1) together with Chapter 734, it is clear that § 730-505(a)(1) applies only to signs within zoning districts in Marion County. As it is undisputed that Pinnacle’s proposed signs were not within a Marion County zoning district at the time the permit applications were filed with INDOT, § 730-505(a)(1) has no application in the instant case. The trial court properly granted summary judgment in favor of Pinnacle. * * *

Despite the fact that Pinnacle explicitly presented the City with its position that it had obtained a vested right, the City was not required to bow to Pinnacle’s interpretation of the law. The application of the doctrine of vested rights in this unusual context had not been addressed in Indiana and the cases supplied by Pinnacle were not directly on point. While the City ultimately lost on the merits, its defense that the doctrine does not apply between governmental units was not unreasonable, frivolous, or groundless.

We conclude that the trial court abused its discretion by awarding attorney fees to Pinnacle. We reverse that portion of the judgment, and affirm the award of summary judgment in favor of Pinnacle. Judgment affirmed in part and reversed in part.
KIRSCH, C.J., and BARNES, J., concur.

City of Mishawaka v. Marian Kvale (6/30/04 IndCtApp) [Real Estate]

Mortgage agreement dispute between City and Estate. Issue: "Whether the trial court’s grant of summary judgment in favor of the Estate was erroneous because, even if the mortgage agreements are void, the Estate is obligated to repay the balance due on the agreements under the equitable doctrine of quantum meruit."

"For the foregoing reasons, we affirm the trial court’s grant of summary judgment to the Estate on the issue of whether the real estate mortgage agreements are void but reverse on the issue of unjust enrichment. Affirmed in part and reversed in part."

Household Finance Corporation v. Kurt and Carolyn Ness (6/30/04 IndCtApp) [Real Estate]
Friedlander, Judge

Household Finance Corporation, Inc. (Household) appeals the denial of its Motion to Enjoin Disbursement of Funds and to Set Aside Sale in an action involving a sheriff’s sale at which the Appellees, Kurt and Carolyn Ness, purchased a residence. Household challenges the correctness of that ruling as the sole issue upon appeal. We affirm. * * *

Finally, in reaching our conclusion, we are mindful that this dispute involves the interests of other parties besides Household, most notably the Nesses. Relying upon the legitimacy of the sale, they took possession of the residence and have been living there ever since. This illustrates what is perhaps the most important reason why there is generally a strong public policy in favor of finality of judicial sales. See Smith v. Fed. Land Bank of Louisville, 472 N.E.2d 1298 (Ind. Ct. App. 1985). Those public policy considerations are best served if the burden of acquiring information about the required procedures for participating in a sheriff’s sale is placed upon the party with the greatest incentive to know them, viz., prospective bidders. In this case, that would be Household. Having determined that the equities do not support Household’s petition to set aside the sale, we conclude that the trial court did not err in denying Household’s motion.
Judgment affirmed.
KIRSCH, C.J., and SHARPNACK, J., concur

Andrew & Susan Verrall v. Eric & Tina Machura (6/30/04 IndCtApp) [Real Estate]
Friedlander, Judge

* * * Buyer’s fraudulent misrepresentation allegations regarding flooding in the basement are based upon the Disclosure Form. Indiana law requires a seller to provide a potential buyer with a disclosure form before an offer is accepted for the sale of residential real estate. * * *
Judgment affirmed in part and reversed in part.
KIRSCH, C.J., and BARNES, J., concur

Lanny D. Abney v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge

In this interlocutory appeal, Lanny Abney appeals the trial court’s denial of his motion to suppress blood alcohol test results. Abney raises one issue, which we restate as whether the trial court erred by denying Abney’s motion to suppress his blood alcohol test results because Abney’s blood was drawn after the police had invoked the implied consent statute and Abney had refused to consent to the blood draw. We affirm. * * *

In summary, the withdrawal of Abney’s blood was obtained pursuant to the guidelines in the implied consent statutes, more specifically Ind. Code § 9-30-6-6(g). Therefore, the trial court did not err by denying Abney’s motion to suppress his blood alcohol test results that were obtained after Abney had refused to submit to a chemical test under the implied consent statutes.
For the foregoing reasons, we affirm the trial court’s denial of Abney’s motion to suppress. Affirmed.
DARDEN, J. and ROBB, J. concur

Kimberly S. Ham v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge

Appellant-defendant Kimberly S. Ham appeals her conviction for Operating a Vehicle While Intoxicated, a class C misdemeanor. Specifically, Ham argues that the conviction may not stand because the trial court erred in giving a final instruction which provided that “a defendant’s refusal to submit to a chemical test may be considered as evidence of intoxication.” Ham asserts that the instruction was an incorrect statement of the law and that it unduly emphasized one evidentiary fact pertaining to her guilt regarding the charged offense.

We conclude that the trial court erred in tendering this instruction to the jury, and we thus admonish our trial courts to refrain from giving this type of instruction in the future. However, in light of the overwhelming evidence presented at trial establishing Ham’s guilt, we hold that the instruction constituted harmless error. Therefore, we affirm the judgment of the trial court.
FRIEDLANDER, J., concurs.
BAILEY, J., concurs in result with opinion.

I concur in the majority’s determination that the jury properly convicted Ham of operating a vehicle while intoxicated, a Class C misdemeanor. See footnote However, I disagree with the majority’s conclusion that the trial court abused its discretion by instructing the jury that “a [d]efendant’s refusal to submit to a chemical test may be considered as evidence of intoxication.” * * *

Percy Dawson v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]
Percy Dawson appeals the post-conviction court’s denial of his petition for post-conviction relief. Affirmed.

Posted by Marcia Oddi on Wednesday, June 30, 2004
Posted to Indiana Decisions

Indiana Decisions - Two 7th Circuit Opinions Today

COMMODITY FUTURES TRADING COMM. v. ZELENER, MICHAEL (ND Ill.)

Before EASTERBROOK, KANNE, and ROVNER, Circuit
Judges.
EASTERBROOK, Circuit Judge. This appeal presents the question whether speculative transactions in foreign currency are “contracts of sale of a commodity for future delivery” regulated by the Commodity Futures Trading Commission. 7 U.S.C. §2(a)(1)(A). Until recently almost all trading related to foreign currency was outside the CFTC’s remit, even if an equivalent contract in wheat or oil would be covered. * * * These transactions were, in form, spot sales for delivery within 48 hours. Rollover, and the magnification of gain or loss over a longer period, does not turn sales into futures contracts here any more than it did in Nagel and Lachmund. The judgment of the district court therefore is AFFIRMED.

OBLIX, INCORPORATED v. WINIECKI, FELICIA (ND Ill.)

Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * But there is little point in telling them to arbitrate the doomed “unconscionability” argument, which has been rejected in this circuit as often as it has been raised. * * * Agreements to arbitrate employment-related subjects, including claims of employment discrimination, are treated the same for this purpose as agreements to arbitrate labor- relations matters, building leases, disputes about patent royalties, and controversies among participants in reinsurance treaties. * * * The decision of the district court is reversed, and the case is remanded with instructions to refer the parties to arbitration and dismiss Winiecki’s counterclaim.

Posted by Marcia Oddi on Wednesday, June 30, 2004
Posted to Indiana Decisions

Indiana Decisions - Reports on Yesterday's Decisions

Two stories in the Indiananpolis Star today on yesterday's rulings:

This brief story begins: "The Indiana Supreme Court ruled Tuesday that employers can't be held liable if they are negligent and give out misleading information when providing job references." The case, Mark R. Passmore v. Multi-Management Services (6/29/04 IndSCt) is among those summarized yesterday (scroll down).

"Child limit on medical-malpractice suits ended" is the headline to this story. Some quotes:

The Indiana Court of Appeals has struck down a section of the state's medical-malpractice law that limited when a lawsuit could be filed on behalf of a child injured in a medical procedure.

In a unanimous ruling Tuesday, a three-judge panel said the part of Indiana's Medical Malpractice Act that applies to the statute of limitations for children is unconstitutional.

Current law requires that a medical-malpractice claim must be filed within two years, except for children younger than age 6, who have until their eighth birthday to file suit. In other legal actions, children have until age 20 -- or two years after they become an adult -- to file a lawsuit. * * *

The appellate judges agreed that the law creates two different standards and is thus unconstitutional. * * *

In 1999, the Indiana high court struck down another part of the malpractice law -- also dealing with the statute of limitations. The court said Hoosiers aren't bound by the two-year statute of limitations if they don't know they've been hurt by malpractice.

The case, Marsha Ledbetter v. Robert Hunter, et al. (6/29/04 IndCtApp) is among those summarized yesterday (scroll down).

Posted by Marcia Oddi on Wednesday, June 30, 2004
Posted to Indiana Decisions

Tuesday, June 29, 2004

Indiana Law - Impact of Miranda Ruling on Indiana?

"Tactic of Delayed Miranda Warning Is Barred" is the headline to this Linda Greenhouse report in the NY Times today. She writes:

The Supreme Court on Monday rejected a police interrogation tactic designed to induce suspects to give incriminating statements after purposely delaying Miranda warnings.

The tactic, taught in police training courses, has been growing in popularity, and the Supreme Court decision, a murder case from Missouri, was consequently eagerly awaited by both prosecutors and defense lawyers. * * *

Under the tactic the court invalidated in the Missouri case, the police first question a suspect while withholding the advice required by the Miranda decision of the right to remain silent and to consult a lawyer before answering questions. In not giving the warnings, the police know that any incriminating statements elicited in this phase of the questioning will be inadmissible in court.

The officers then give the suspect a short break before resuming the interrogation, this time with the warnings. Typically, suspects will waive their Miranda rights and then repeat what they had said earlier, prompted by the officers' leading questions and by the sense that it is now too late to turn back.

The issue for the Supreme Court on Monday was whether the answers from that second phase of questioning could be used in court, and the majority's answer was no. Justice Souter said the facts of this case "by any objective measure reveal a police strategy adapted to undermine the Miranda warnings." He said the police had created a situation for the defendant, a woman suspected of murder, "in which it would have been unnatural to refuse to repeat at the second stage what had been said before."

The decision is Missouri v. Seibert, No. 02-1371.

What about Indiana? A story today in the Indianapolis Star reports "Local police say ruling will not change policies." Some quotes:

Representatives of the three major police departments in Indianapolis and Marion County said Monday that the court decision would not change the way they handle interrogations and investigations.

Indianapolis police, Indiana State Police and the Marion County Sheriff's Department all said their investigators and officers are ordered to give Miranda warnings when an investigation starts, so those departments do not need to change their policies. On Monday, the U.S. Supreme Court said it was usually improper to interview a criminal suspect twice, giving him the Miranda warning against self-incrimination only before the second interview.

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to Indiana Law

Law - More on Blakely

FindLaw.com has just posted this article, titled "A Significant Decision that May Not Matter: The Supreme Court Holds That Only Juries, Not Judges, Can Make the Factual Determinations That Increase Sentences," by Sherry F. Colb, a Professor at Rutgers Law School.

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to General Law Related

Indiana Decisions - 13 Court of Appeals Decisions Today

Kenneth Reed, et al. v. Munster Plan Commissioner & Town Council (6/29/04 IndCtApp) [Civil Procedure]
Baker, Judge

[The Reeds appeal the trial court’s order dismissing the Reeds’ claims against appellees for lack of standing with regards to a zoning challenge.] Specifically, the Reeds assert that they have standing because the zoning ordinance and the amendatory ordinance rezoning the subject property are town-wide in their application. Finding that the trial court correctly held that a one-half mile distance from the Reeds’ home to the disputed property was too far to confer standing, we affirm. * * *

In the case before us today, the trial court found that the Reeds’ home is approximately one-half mile away from the rezoned property, which is a greater distance of separation than that found in [Bagnall v. Town of Beverly Shores (Ind. 2000)]; therefore, the record supports the trial court’s determination that the Reeds failed to show that they were aggrieved by the rezoning due to their proximity. We also agree with the trial court’s determination that the Reeds failed to allege injuries that “are somehow unique to them as a result of the rezoning.” In essence, the Reeds allege increased traffic and various environmental concerns but no special injury other than that which would be sustained by the community as a whole.

That said, the distinction that the Reeds make that the Bagnall court reviewed a variance—which is local in nature—and the action that they today petition the court to review is a rezoning—which is town-wide—is not persuasive. IC 36-7-4-1003(a) cited above, which provides that persons aggrieved have standing to petition for a writ of certiorari, applies to decisions of the legislative body as well as the board of zoning appeals. Similarly, the declaratory judgment statute, IC 34-14-1-2, that requires a person to be affected, applies to statutes or municipal ordinances, which displays our legislature’s intent that it apply to decisions that are town-wide.
Finally, the Reeds cite to Borsuk and Lake County Trust Company v. Town of St. John in an attempt to solidify their argument that a rezoning dispute can be challenged by a petition for writ of certiorari. 800 N.E.2d 217 (Ind. Ct. App. 2003). However, Borsuk involved a landowner challenging a zoning decision affecting his own property, and it is therefore not persuasive in determining whether the Reeds have standing in this case. Moreover, we note that our supreme court has granted transfer on Borsuk, and therefore it lacks precedential value.

Finally, because we hold that the Reeds lack standing to bring judicial review, we need not address whether notice was sufficiently provided for those who do have standing to request a judicial review of the rezoning. As a result, we conclude that the trial court’s dismissal of the Reeds’ action was proper.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur

Billy Julian v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]

City of Gary, et al. v. Michael Conat (6/29/04 IndCtApp) [Alternative Dispute Resolution]

Deborah Wilkinson v. Robert Swafford (6/29/04 IndCtApp) [Torts; Evidence]

Karen L. Vannatta v. Patricia Chandler, et al. (6/29/04 IndCtApp) [Civil Procedure]
Darden, Judge

On July 9, 2003, Scheetz filed a motion to dismiss the Hamilton Superior Court complaint "pursuant to Trial Rule 12(B)(8) of the Indiana Rules of Trial Procedure," arguing that the claims asserted by Vannatta therein concerned the "same residential real estate transaction" and involved "the same facts and parties as the action pending in the Marion Superior Court." Vannatta opposed the motion, arguing that it was "not the same action" because this was "a tort case" whereas the Marion Superior Court case was "a breach of contract case"; there were "different defendants"; and the Knoxes' presence was "not needed for just adjudication" of the tort case against Scheetz. Scheetz's reply asserted that Vannatta sought "the same remedy against the Knoxes in the Marion Superior Court suit as . . . against [Scheetz] in the [Hamilton] Superior Court case" and that the parties were "substantially the same in both suits." * * * Vannatta contends that the trial court erred in granting Scheetz's T.R. 12(B)(8) motion to dismiss "because the cases are not the same." We agree. * * *

Scheetz does not dispute that the Hamilton Superior Court has subject matter jurisdiction to consider the tort claim brought by Vannatta; nor does it dispute the court's personal jurisdiction and jurisdiction of the case. The facts before us lead us to conclude that neither the parties, the subject matter nor the remedies of the two actions brought by Vannatta are "substantially the same" so as to warrant invocation of T.R. 12(B). Therefore, we cannot find that T.R. 12(B)(8) prevents Vannatta from pursuing her causes of action against different defendants in two different courts. Accordingly, we find that the dismissal with prejudice was error and must be reversed. We reverse.
SHARPNACK, J., and BAILEY, J., concur|

Short on Cash.Net of New Castle v. Department of Financial Institutions (6/29/04 IndCtApp) [ ]
Bailey, Judge

Appellant-Respondent Short on Cash.Net of New Castle, Incorporated (“Short on Cash”) appeals the trial court’s grant of a preliminary injunction in favor of Appellees-Petitioners Department of Financial Institutions (“Department”) and Steve Carter, Attorney General of Indiana (collectively referred to as “Appellees”). We affirm.

Issue. [W]hether the trial court abused its discretion by, first, invoking the per se rule applicable to preliminary injunctions because Short on Cash is not in the business of issuing small loans and, therefore, its business operations do not violate Indiana Code Section 24-4.5-7-410 and, second, granting the petition for preliminary injunction absent a showing of irreparable harm. * * *

Lastly, the evidence shows that Short on Cash is located in the same building, uses the same phone number, and has the same principal and president as a small loan business known as Short on Ca$h. Short on Ca$h offered small loans to consumers “with contractual provisions for a single payment due approximately two weeks after the loan was made.” This evidence supports the trial court’s finding that Short on Cash’s sale of Internet service is merely a guise for its operation as a small loan business. Thus, Short on Cash, which operates without a usury license, is in violation of Indiana Code Section 24-4.5-7-410. Accordingly, the trial court did not err when it invoked the per se rule in this case and, therefore, did not abuse its discretion when it granted the preliminary injunction in favor of Appellees in the absence of a showing of irreparable harm. For the foregoing reasons, we affirm the trial court’s grant of a preliminary injunction. Affirmed.
BAKER, J., and FRIEDLANDER, J., concur

Donna K. Stites v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]
Crone, Judge

* * * Following our decisions in Sinn, Thompson, and Badger, we reverse the denial of Stites’s amended petition for post-conviction relief and vacate her conviction and sentence. The State may reprosecute Stites for Dutell’s murder. Reversed.
BAKER, J., and BARNES, J., concur

In the Matter of the Adoption of M.L.L., Mary Ann Lowe v. Jeffrey White (6/29/04 IndCtApp) [Family Law]
Najam, Judge

* * * Indiana Code Section 31-19-9-2 provides in relevant part that a consent to adoption “may be executed at any time after the birth of the child either in the presence of: (1) the court; [or] (2) a notary public . . . .” Because the evidence shows that Lowe executed her consent in the presence of a notary public, her consent is valid. The trial court did not err when it granted the Whites’ adoption petition. Affirmed.
RILEY, J., concurs.
KIRSCH, C.J., concurs with separate opinion.

* * * I write separately only to note the anomaly in Indiana law that provides extensive protections for parents whose parental rights are being involuntarily terminated, but that provides almost no protections for parents who are voluntarily terminating their rights through adoption. On the one hand, we provide counsel, notice and hearing, and the full panoply of rights to individuals who have abused or neglected their children; on the other, we provide no protection for the parent who believes she is acting in the best interests of her child in giving the child up for adoption. A homeowner who buys home improvements through a conditional sales contract has the right to disclosures and the right to rescind the contract within a specified period of time. Shouldn’t we provide as much protection to a parent who is giving up her child for adoption as we do to a person buying vinyl siding?

Avemco Insurance Company, et al. v. Sally McCarty, et al. (6/29/04 IndCtApp) [Insurance]
Riley, Judge

Appellants-Defendants, Avemco Insurance Company, HCC Life Insurance Company, and Pacific Life Insurance Company (collectively, the “medical stop loss insurers”), appeal the trial court’s Order granting Appellee-Plaintiff, State ex rel. Sally McCarty, Commissioner of Insurance for the State of Indiana (the Commissioner), complaint for preliminary injunction and entry of injunctive relief in her favor. We affirm

Marsha Ledbetter v. Robert Hunter, et al. (6/29/04 IndCtApp) [Medical Malpractice; Constitutional Law]
Riley, Judge

[Plaintiff, Marsha Ledbetter] appeals the trial court’s Order in favor of [Defendants, Robert Hunter, M.D., Lawrence Benken, M.D. and Ball Memorial Hospital]dismissing Ledbetter’s medical malpractice claim under the Privileges and Immunities Clause of the Indiana Constitution. We reverse and remand for further proceedings.

ISSUE. Ledbetter raises one issue on appeal, which we restate as follows: whether the trial court erred in dismissing Ledbetter’s medical malpractice claim, holding that the statute of limitations for minors, contained in the Indiana Medical Malpractice Act, did not violate the Privileges and Immunities Clause of the Indiana Constitution. * * *

Based on our analysis of the evidence under Collins’ two-pronged test, we conclude that the classification between minors injured by medical malpractice and minor victims of other torts is no longer reasonably related to the goal of maintaining sufficient medical treatment and controlling malpractice insurance costs. See Collins, 644 N.E.2d at 80. Furthermore, we find that within the class of minors injured by medical malpractice, not all minors are all treated equally. See id. Consequently, we hold that the Indiana Medical Malpractice Act’s statute of limitations as it applies to minors, violates the Privileges and Immunities Clause of the Indiana Constitution, and thus we declare it to be unconstitutional.

CONCLUSION. Based on the foregoing, we conclude that the trial court erred in dismissing Ledbetter’s medical malpractice. Reversed and remanded, for further proceedings consistent with this opinion.
KIRSCH, C.J., and NAJAM, J., concur

Donna Schriber v. Anonymous & Eagle Care Inc., et al. (6/29/04 IndCtApp) [ ]

Randall & Ramona Farr v. Laidig Concrete, Inc. [Master/Servant]

Roy Britt v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

* * * Once the State established possession of marijuana by cultivation, I.C. § 35-48-4-11(2), it also established possession of marijuana, I.C. § 35-48-4-11(1). Thus, the two offenses are not distinct offenses under the same elements test. Indiana Code Section 35-38-1-6 prohibits the entry of judgment for “an included offense.” Here, possession of marijuana is the included offense because it is established by less than all the elements required to establish possession of marijuana by cultivation. Accordingly, we remand to the trial court with instructions to vacate the conviction and sentence for Count II, possession of marijuana. Affirmed in part; remanded with instructions.
BAKER, J., and FRIEDLANDER, J., concur

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to Indiana Decisions

Indiana Decisions - Four Supreme Court Decisions Today

Sharon Baker v. Marion County Office of Family & Children (6/29/04 IndSCt) [Family Law]
Shepard, Chief Justice

Mother and Father lost parental rights during a termination proceeding. Their appeal centers on the claim that the trial court did not adequately inquire about their decision to go forward with representation by the same lawyer. They contend that without an adequate demonstration that they understood the consequences of joint representation their right to counsel was violated. They say this right should be judged not by the test of Strickland v. Washington, so often transplanted from criminal law to parental termination cases, but rather by a standard that would make it easier for parents who lose at trial to gain a second one. We conclude otherwise, seeing the question as one of assuring due process in a setting that is dramatically different from criminal proceedings. * * *

There is nothing to suggest that representation by a single lawyer led to a fundamentally unfair hearing.

Conclusion. We affirm the decision of the trial court.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., not participating.

Infinity Products, Inc. v. Herbert Quandt (6/29/04 IndSCt) [Trade Secrets]
Shepard, Chief Justice

Four days after T.E. Scott, Inc. fired Herbert Quandt, he began working for Fabri-Tech doing the same sort of work. Infinity Products, T.E. Scott’s successor, eventually sued Quandt and Fabri-Tech alleging that Quandt used stolen trade secrets to lure Infinity customers to Fabri-Tech. The trial court held that Quandt was liable for misappropriating and converting Infinity’s trade secrets and that Fabri-Tech was not.

We first address whether Fabri-Tech was directly liable under Indiana’s Trade Secrets Act ("the Act"). Second, we examine whether Fabri-Tech can be vicariously liable under the Act through the doctrine of respondeat superior. * * *

While Quandt’s disregard of Fabri-Tech’s pricing procedure is suspicious, the state of the evidence was such that the trial court could respectably regard it as inadequate to demonstrate that Fabri-Tech knew or should have known of the misappropriation. As Quandt was not prevented from contacting Infinity’s customers, Fabri-Tech was not prevented from authorizing him to do so. There is no evidence indicating that Fabri-Tech instructed Quandt to use trade secrets to lure Infinity customers away. Based on these facts, neither the trial court’s findings nor judgment is erroneous. The court’s judgment is not contrary to law, and we affirm the trial court on this issue. * * *

As Infinity correctly points out, respondeat superior is a common law doctrine under which liability is imposed by law upon the master for acts done by the servant, regardless of the master’s complicity in the acts. Indeed, it may impose liability even when the master directed the servant to the contrary. Surely, this doctrine must be thought of as conflicting with the uniform act’s requirements [Indiana’s Trade Secrets Act] that a claimant demonstrate that the defendant “knows or has reason to know” that the trade secret at issue was acquired by improper means. [IC 24-2-3-2] It is thus displaced by the provisions of the uniform act. * * *

We conclude that the trial court correctly held that Fabri-Tech could not be held liable absent the proof of scienter required by the uniform act.

Conclusion. We affirm the trial court’s judgment for Infinity against Quandt and its judgment for Fabri-Tech against Infinity.
Sullivan and Boehm, JJ., concur.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs.

* * * The time-honored common law principle of an employer's respondeat superior liability for the acts of an employee done in the scope of employment is not "conflicting law of this state pertaining to the misappropriation of trade secrets." Ind. Code § 24-2-3-1(c). The Uniform Act's requirement that a claimant demonstrate the wrongdoer's scienter does not "conflict" with the imposition of vicarious liability of the wrongdoer's employer. To the contrary, the risk of such liability serves as an incentive for employers to discourage their employees from using misappropriated trade secrets. The doctrine of respondeat superior thus does not conflict with, but rather fosters, the purposes of the act. * * * I would reverse the trial court and find that Fabri-Tech can be held vicariously liable for Quandt's misappropriations done in the scope of employment.
Rucker, J., concurs

Mark R. Passmore v. Multi-Management Services (6/29/04 IndSCt) [Torts; Employment Law]
Shepard, Chief Justice

A nursing home hired a new worker in part on the basis of a favorable recommendation from his former employer. The claim is that this worker assaulted a patient. The patient asserts that the former employer wrongly gave a favorable recommendation and thus should be liable for the injury. The Court of Appeals affirmed summary judgment for the former employer, holding that there is no basis for liability running to patients of other nursing homes. We hold that former employers may be liable for knowing misrepresentation, adopting § 310 of the Restatement (Second) of Torts. * * *

On the other hand, we think it rather obvious that declaring employers liable for negligence in providing employment references will lead universally to employer reluctance to provide any information other than name, rank, and serial number. Only those employers dull-witted enough to issue free-wheeling assessments without calling their lawyers would supply any but the most rudimentary information. A legal policy that discourages providing assessments to subsequent employers will not make for safer nursing homes, or other safe workplaces, for that matter. We therefore decline to adopt § 311 as it applies to employment references. It was appropriate to grant judgment to Lee Alan on Passmore’s claim of negligent misrepresentation.

Conclusion. We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

State of Indiana v. Steve Boles, et al. v. Frontier Insurance Company, et al. (6/29/04 IndSCt) [Statutory Construction]
Sullivan, Justice

Nine defendants failed to appear in court and, pursuant to statute, the clerk of the court imposed late surrender fees on the sureties representing the defendants. The trial court vacated the fees because notice of the appearance date was not provided to the sureties and because the fees were not imposed by court order. We reverse, finding that notice of the appearance date was not required, and that the clerk has the requisite authority, to impose late surrender fees. * * *

We find that notice to a bail agent or surety under Section 8(a) [of IC 27-10-2] is not required in order to impose late surrender fees upon a bail agent or surety under Section 12(c) [of IC 27-10-2] or to find a forfeiture of a bond under Section 12(d). We also find that the clerk of the court has the authority to impose late surrender fees. Having previously granted transfer, Ind. Appellate Rule 58(A), we reverse the judgments of the trial court in these nine cases and remand them to the trial court to review its orders vacating the late surrender fees.
Dickson, Boehm, and Rucker, JJ., concur. Shepard, C.J., is not participating.

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to Indiana Decisions

Indiana Decisions - Seven 7th Circuit Opinions Today

BERTRAND, DANIEL v. OSWALD, THEODORE W. (ED Wis. )

Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. * * * The circumstances that we have narrated demonstrate a high probability that some, maybe all, of the jurors who tried Oswald were biased. It is not just what Klitzka said or what Schuenke said; those were merely the most dramatic indications that, as the judge obviously realized, the process of jury selection was being poisoned. The question is whether, given the indications of jury bias, the judge’s inquiry was adequate. From the case law we distill the principle that adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. * * *

The order of the district court that Oswald be either retried or released is therefore AFFIRMED.

EVANS, Circuit Judge, dissenting. The majority, in bolstering its decision, draws on an example we mentioned in Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), observing that if police have an airtight case they nevertheless cannot take an obviously guilty defendant “directly to the penitentiary on the ground that a trial would be a waste of time for someone so patently guilty.” But is this what happened here? No. Is this even remotely close to what happened here? No, again. Fifty prospective jurors were questioned over 4 days; the state trial judge granted 21 out of 27 of Oswald’s challenges for cause of potential jurors; the jury heard from numerous witnesses and examined many exhibits during the 3 weeks it took to complete the trial. Yet today, the court orders new tickets to this old show for reasons that, in my view, cannot support such a drastic step. * * *

CARLSON, PHILLIP D. v. GORECKI, MARY E. (ND Ill.)

Before FLAUM, Chief Judge, and MANION and ROVNER, Circuit Judges.
MANION, Circuit Judge. Phillip Carlson and Thomas Smith worked as special investigators for the Kane County, Illinois, State’s Attorney’s office. In December 2000, defendant Mary Gorecki, the Kane County State’s Attorney, fired Carlson and Smith allegedly because of their speech on matters of public concern, namely, their support of Gorecki’s opponent in the election and their allegations that Gorecki was involved in various jobs-for-favors and kickback schemes. Carlson and Smith filed this action under 42 U.S.C. § 1983, asserting that Gorecki’s decision to fire them violated the First Amendment. After discovery, Gorecki filed a motion for summary judgment asserting that Carlson and Smith occupied policymaking or confidential positions and that she was entitled to qualified immunity. The court denied Gorecki’s motion. She appeals, and for the following reasons, we affirm.

INDORANTO, KIM v. BARNHART, JO ANNE, SOC. SEC. (ND Ind., Magistrate Judge Springmann) Social Security disability denial reversed.

KIRCHER, CARL v. PUTNAM FUNDS TRUST (SD Ill.)Before EASTERBROOK, EVANS, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * Contending that the fund and its investment adviser (Putnam Investment Management) had engaged in misconduct that reduced the value of their shares, plaintiffs filed suit in state court, invoking state law alone. They propose to represent a class of the Fund’s investors. By forswearing reliance on federal law plaintiffs hope to avoid the strictures of federal statutes such as the Private Securities Litigation Reform Act of 1995. Similar maneuvers by other investors in the wake of the 1995 statute led Congress to enact the Securities Litigation Uniform Standards Act of 1998. This statute, usually known by its ungainly acronym SLUSA, blocks many class actions based on state law when the issuers are covered by the federal securities laws. Preemption normally is an affirmative defense, to be evaluated by the court in which the plaintiff elects to sue. * * *

We recognize that two courts of appeals have held that disputes about the application of §77p and §78bb cannot be resolved by federal appellate judges. * * * Both the second and the ninth circuits were mesmerized by the word “jurisdiction” and did not see the difference between a case that never should have been removed and a case properly removed and remanded only when the federal job is done. * * *

The appeal is within our appellate jurisdiction and will proceed to briefing and decision on the merits.TICE, ROBERT H. v. AMERICAN AIRLINES IN (ND Ill.)

Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The plaintiffs in this suit under the Age Discrimination in Employment Act are 14 American Airlines pilots who, having reached age 60 and thus become disqualified (by virtue of a regulation of the Federal Aviation Administration that is not challenged) to pilot the airline’s planes, claim the right to downgrade to the position of flight officer. Some of American’s aircraft have three pilots in the cockpit—the captain, the first officer (copilot), and the flight officer. The flight officer must ordinarily be a pilot, but his duties do not involve flying the airplane; instead they involve monitoring the plane’s fuel, electrical, and other systems. American refuses to permit a captain who has been disqualified as a pilot to downgrade to flight officer. The plaintiffs, all former captains, contend that this refusal violates the age discrimination law.

American replies that the refusal has nothing to do with age, but rather is compelled by its collective bargaining agreement with the plaintiffs’ union, which establishes an “up or out” policy: a flight officer who cannot qualify for a higher position cannot remain in the cockpit. * * *

The System Board of Adjustment found that American had for many years followed the “up or out” practice, that the union had acquiesced, and that the practice had become an implied term of the parties’ collective bargaining agreements. The plaintiffs challenge the correctness of this ruling, but we have no power to review an arbitral ruling for error. As long as what the arbitrators did can fairly be described as interpretation, our hands are tied. Since the interpretation of a collective bargaining agreement “includes the power to discover [implied] terms,” and practices can through acquiescence by the parties “create an implied obligation,” the arbitrators’ conclusion that American’s “up or out” policy was an implied term of the collective bargaining agreement was interpretive and therefore binds us. AFFIRMED.

USA v. HENTON, DAVID L. (ND Ill.) "Henton appeals, arguing that his recidivism should have been charged in the indictment and proven beyond a reasonable doubt and that the district court erred when it determined that his 1993 state drug conviction qualified as a 'serious drug offense' under ACCA. We affirm."

USA v. VALLEJO, JOSE (ND Ill.) Enhancement to defendant's sentence affirmed.

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to Indiana Decisions

Environment - Stories today

Martinsville Cleanup. "Workers begin toxic cleanup in Martinsville: Environmental company's project to decontaminate soil, water polluted by dry-cleaning solvent could take 3 to 5 years" is the headline to this story today in the Indianapolis Star. Some quotes:

MARTINSVILLE, Ind. -- Years after a dry-cleaning solvent contaminated Martinsville's air, soil and water, an Indianapolis environmental company has started cleaning up the mess. * * *

"That contamination has been common knowledge for many years," said Tom Tackett, director and pastor of Manna Mission, a homeless shelter just north of the work site. "It is sad that it took this long to get anything going."

City, state and federal officials believe Masterwear Corp., a former industrial dry-cleaning company, contaminated soil behind its plant with perchloroethylene, or PCE. Masterwear used the solvent to clean oil from gloves and towels used by industries. The company closed 13 years ago.

State inspectors believe drums of contaminated oils and other chemicals stacked on bare ground behind the building rusted and leaked. Over time, the suspected cancer-causing chemical soaked into the ground and was carried by groundwater more than a mile to the city's wells.

The Star also publishes today a letter from Clarke Kahlo of the Hoosier Environmental Council. Some quotes:

In the Martinsville groundwater pollution case, state regulators at the Indiana Department of Environmental Management apparently took no meaningful preventive or corrective action despite citizen complaints. As a result of IDEM's laxity during the Bayh and O'Bannon administrations, the water supply of the city of 12,000 people has been poisoned and the water customers will be stuck with the high cost of establishing the needed new wells. * * *

Overall responsibility for this agency inaction can be assessed to the two Democratic governors who administered our state programs during the period. In past years, a short-staffed IDEM has struggled to keep up with the workload and was often required to respond to political interference with its enforcement actions.

From the recent statements of the two major gubernatorial candidates regarding the need to encourage business, it appears that, if elected, either might further diminish the ability of our regulatory agencies to provide adequate protection. Thus Hoosiers shouldn't necessarily anticipate much improvement in our 48th ranking for environmental quality for the foreseeable future. However, if citizens speak out about our need for better policies, the candidates, and the next governor, are more likely to be responsive.

Clean Water Act Costs. The Fort Wayne Journal Gazette has a story today that begins:

Meeting federal clean water standards will cost cities in the Maumee River basin more than $1 billion, money local officials say the federal government needs to help provide.

Fort Wayne Mayor Graham Richard said Monday that a report examining the plight of the communities across northeast Indiana, southeast Michigan and northwest Ohio found that for all of them to come into compliance with the Clean Water Act, they would have to spend $1 billion for infrastructure such as sewage treatment plants and new sewer lines.

The cost for Fort Wayne is about $250 million, which officials plan to spend over the next 25 years separating storm sewers from sanitary sewers and increasing the sewage plant’s capacity. But they fear the U.S. Justice Department, which has already threatened the city with a lawsuit over its pollution of the Maumee, will order the timetable sped up or even more upgrades than are already planned.

Landfill. The Columbia City Post&Mail reports today that the county will buy the old landfill. This is a followup to a story we posted here on June 23rd. A quote:

Whitley County officials agreed informally last Friday to purchase property that was once used as a landfill by the county. The 38-acre tract, owned by the late Ben Lott, was to be auctioned Tuesday with four other tracts of land in the Lott estate, but subject to formal approval by the Whitley County Commissioners on Tuesday, the former landfill site will be sold to the county.

Attorney for the Lott estate, Hugo Martz said a purchase agreement for the property was signed early today by Ben Lott's estate representative, his wife Maxine Lott. Martz said Lott agreed to sell the property to protect it against potential harm. "We believe it is a win-win situation. The county now has control of the property and will protect it, assuring the landfill will not be disturbed in the future," Martz said.

The tract of land has been maintained by Whitley County and Lott in accordance with regulations placed on the it by the Indiana Department of Environmental Management since the landfill was closed in the mid- to late-1980s.

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to Environmental Issues

Law - Supreme Court Ends Term

The Supreme Court issued its final decisions for the term today. For complete coverage of the Court's actions during the end-of-the-term whirlwind, check SCOTUSBlog here. For extensive coverage of yesterday's Hamdi, Padilla, & Rasul decisions, check this entry at Legal Theory Blog. Finally, this editorial in today's NY Times ends with this quote from Justice O'Connor's opinion in Hamdi:

"It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested," Justice O'Connor observed yesterday, "and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to General Law Related

Law - Theft of Law Firm's Identity

Some quotes from the AP story:

WHITE PLAINS, N.Y. (AP) -- A paralegal embezzled nearly $600,000 by setting up a bank account under a name that was nearly identical to a New York law firm's, prosecutors said Monday. "This woman basically stole the identity of this law firm," Westchester County District Attorney Jeanine Pirro said. The law firm was Fish & Neave of Manhattan; the account was set up in the name "Fish Neave."

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to General Law Related

Law - Lake County Illinois considers a mental health court

"Court would assist mentally ill: Lake considers move to reduce jail crowding" is the headline today to this story in the Chicago Tribune. Some quotes:

Faced with chronic jail overcrowding, Lake County officials are exploring whether to establish a special courtroom for mentally ill defendants who would receive treatment--even job counseling--instead of jail time. * * *

Dealing with a similar trend, officials in DuPage and Cook Counties have set up mental health courts. In DuPage, non-violent misdemeanor offenders are sent there, while Cook transfers non-violent felony cases.

DuPage State's Atty. Joseph Birkett said many of the defendants are homeless and unemployed, presenting workers with multiple challenges. "You have the opportunity to build up a treatment regimen so people get on their medications, obtain housing and a job, and instead of becoming a burden on the system, they become productive citizens again," he said.

At any given time, Birkett said, the court system deals with at least two dozen misdemeanor defendants who qualify for mental health court, where charges typically are dropped if the defendant fulfills the court-ordered treatment requirements. He said there has been only one case of recidivism involving an arrest for a non-violent offense.

The mental health court, initially set up on a trial basis in 2001, also has saved money for the criminal justice system, he said. "In Du Page County alone, we've saved tens of thousands of dollars in rearrests, housing them in jail, prosecution functions and the defense of these people, many of whom are indigent," Birkett said.

Posted by Marcia Oddi on Tuesday, June 29, 2004
Posted to General Law Related

Monday, June 28, 2004

Environment - Stories Today

Wetlands. "Owner seeks development at old tannery: Potential seen in New Albany wetland" is the headline to this story today in the Louisville Courier Journal.

Office of Environmental Adjudication Summer Hours. The OEA has issued this notice:

The State Personnel Department has requested agencies to implement an energy/water conservation plan for Summer, 2004 (June 28 - September 3). This conservation plan is similar to last year's plan, and is currently voluntary, unless blackouts are ordered. In order to comply with the June 25th Energy Conservation Guidelines for Summer 2004, the Office of Environmental Adjudication wishes to advise all persons who may appear before it of the following adjustments to office hours in compliance with the Conservation Guidelines.

1. OEA expects to continue to have at least one staff member in the office until 4:30 PM each day. Our office mates, the Indiana Education Employment Relations Board ("IEERB"), should have staff in the office until 5:00 p.m. EST each day. This person can receive pleadings or other documents until the office closes. However, as the majority of OEA staff will be complying with the Guidelines' provision that work hours be adjusted so that most staff leaves by 3:00 PM each work day, it may not be possible for IEERB's staff person to (1) answer questions regarding procedure or the court's calendar or (2) pull files for review or copying. Please plan accordingly.

2. The court will continue to file stamp pleadings with the date of postmark if the pleadings are sent by mail. However, any pleadings delivered by hand will be file stamped with the date that the court receives the pleadings.

3. The court, in its sole discretion, may accept pleadings that are filed one day late or three days late if the original due date was a Friday. This does not apply to Petitions for Review or answers to Requests for Admissions.

4. Contested hearings in progress may proceed after 3:00 PM.

If you have any questions or complaints, please contact Chief Environmental Law Judge Mary Davidsen or Environmental Law Judge Catherine Gibbs.

Office of Environmental Adjudication
100 N. Senate Ave, Room N1049
Indianapolis, IN 46204
(317) 232-8591

Posted by Marcia Oddi on Monday, June 28, 2004
Posted to Environmental Issues

Law - Illinois' Inconsistent Curfew Laws

"Inconsistent curfew laws put teens in legal maze" is the headline to this story today in the Chicago Tribune. Some quotes:

[A] ruling earlier this year by the U.S. Court of Appeals for the 7th Circuit struck down an Indiana curfew law on the grounds it failed to honor minors' 1st Amendment rights. The court's decision says police should ask minors why they are out past curfew and if they are practicing their 1st Amendment rights, such as attending a protest or a church event, police should give them a pass. The problem is, some communities have changed their law to be in line with the decision, but others are continuing their policy of ticketing first and asking questions later.

Illinois' curfew law and laws adopted by many of the state's municipalities contain the same defect as the Indiana law. So in the past six months, local governments, including those in Chicago, Aurora and Naperville, have rushed to amend their ordinances in time for summer. They have added exemptions that would prevent juveniles from being detained by police if they are out late for a legal activity, such as a religious event or a political rally.

But some municipalities have not acted yet and have suspended their curfew laws in the meantime, and the state has not yet revised its law. The result is that curfew law--and its enforcement--can vary from city to city, creating a legal labyrinth for youths wishing to travel late at night.

Still, many local law enforcement agencies believe a curfew law is a valuable weapon, although there's no data to prove that curfews deter youth crime or protect them from harm. * * *

Curfew became the rallying cry of many cities during the late 1990s as they began to enforce laws that had been on the books for decades. But a number of court challenges raised the question of their constitutionality. Those included the Indiana case that spurred the recent changes. The Hodgkins vs. Peterson case began in 1999 when police arrested Colin Hodgkins, 16, and other teens after they left a restaurant in the Indianapolis area, five minutes past the 11 p.m. curfew. Hodgkins was out late with his parents' permission.

Colin and his friends were handcuffed, required to take breathalyzer and drug tests and detained for 2 1/2 hours before the families were notified. The Hodgkins family sued, and a federal district court declared the law unconstitutional. The Indiana General Assembly then amended its law to allow police to arrest minors for curfew violations and allow youths to later prove they were out for legitimate reasons.

The Hodgkinses sued again, arguing that the new law still didn't protect the 1st Amendment rights of young people. The family also argued that the law violated the 14th Amendment by taking away the parents' right to make decisions about what their children can do after curfew hours. The federal appeals court agreed with the first argument, but it left the question of parental rights unanswered.

The rewritten Indiana statute said citations could be issued and teens accused of violating the law could defend themselves later in court. But the court said officers had to give youths a chance to explain their reasons for being out past curfew before a citation is issued.

See also these related 6/14/04 and 3/18/04 Indiana Law Blog entries.

Posted by Marcia Oddi on Monday, June 28, 2004
Posted to General Law Related

Indiana Law - Harder Now to Bail Out in Vanderburgh County

"Until now, if you got arrested on felony charges in Vanderburgh County and had the money, you could quickly bail out of the overcrowded jail," reports this story in the Evansville Courier Press. But no more. Now a judge has to review the case first.

Posted by Marcia Oddi on Monday, June 28, 2004
Posted to Indiana Law

Indiana Decisions - One Supreme Court, Four Court of Appeals, and One Tax Court Decision Today

Julie Marie Bojrab v. George David Bojrab (6/28/04 IndSCt) [Family Law]
Dickson, Justice

In this appeal following a dissolution of the marriage, we hold (1) that a trial court may not order a prospective custody modification upon the happening of a future event but it may declare a present custody determination is conditioned upon the continuation of present circumstances, and (2) that a party does not waive the right to appeal from a provisional order for support or maintenance by failing to take an interlocutory appeal. * * *

Because we hold that the trial court order does not order a prospective custody modification upon the happening of a future event but only conditions a present custody determination upon the continuation of present circumstances, we affirm the trial court order in this regard. We also hold that the husband did not waive the right to appeal from a provisional order for support or maintenance by failing to take an interlocutory appeal, but that the trial court did not abuse its discretion in denying his request for retroactive modification in the final decree. In all other respects we summarily affirm the opinion of the Court of Appeals, under which the trial court is affirmed in part, and reversed and remanded in part.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

Leandrew Jones v. State of Indiana (6/28/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

Leandrew Jones was convicted after two bench trials of battery as a Class C felony, and being an habitual offender. He raises two issues: 1. Whether he knowingly, voluntarily and intelligently waived his right to trial by jury on the habitual offender charge; and 2. Whether the evidence is sufficient to support the conviction of battery as a Class C felony. We reverse in part, affirm in part, and remand. * * *
SULLIVAN, J., and VAIDIK, J., concur.

Dale Johnson v. State of Indiana (6/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

The State charged Dale Johnson with Burglary, as a Class A felony, approximately thirteen years after the alleged offense occurred. Johnson moved the trial court to dismiss the charge alleging that the State’s delay in filing it violated his right to due process under the Fifth Amendment to the United States Constitution. Following a hearing, the trial court denied Johnson’s motion to dismiss, and Johnson appeals that interlocutory order. We affirm. * * *

It is well-settled that the prosecutor is invested with broad discretion in the decision of such matters as when to prosecute. We conclude that Johnson has failed to demonstrate that the thirteen-year delay was without justification. The trial court did not err when it denied his motion to dismiss, and we hold that the State’s delay in filing charges against Johnson did not violate his due process rights under the Fifth Amendment. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.

Robert Kanady v. State of Indiana (6/28/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

Robert Kanady appeals his conviction of child molesting, a Class C felony. He asserts the State failed to prove he had the requisite intent to commit that crime. We affirm.
VAIDIK, J., concurs.
SULLIVAN, J., concurs in result.

Jerry Lynn "Lenny" Nordman v. North Manchester Foundry, Inc., et al. [Labor Law]
May, Judge

Jerry Lynn Nordman appeals the trial court’s order granting his employer’s Petition for a Temporary Restraining Order and Injunction Prohibiting Violence or Threats of Violence. North Manchester Foundry (hereinafter “the Foundry”) claimed Nordman made a credible threat of violence against its employee Ezra Gahl. Nordman raises five issues, but we find the dispositive issue is whether his acts arose out of a labor dispute and thus the trial court lacked subject matter jurisdiction under Indiana’s Anti-Injunction Act. * * *

Reversed and remanded with instructions.
BAKER, J., and NAJAM, J., concur.

Jon K. Fink v. Indiana Department of State Revenue, et al. (6/25/04 IndTaxCt - Not for Publication) [Procedural]

Posted by Marcia Oddi on Monday, June 28, 2004
Posted to Indiana Decisions

Indiana Law - Two 7th Circuit Opinions Today

[Sorry, the website server has been down for several hours.]

CAMPBELL, JAMES v. MILLER, FRANK (SD Ind., Judge Barker)

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. Police in Indianapolis arrested James Campbell for possessing marijuana. Because the local jail is crowded, Indianapolis does not make a full custodial arrest of each person arrested for a misdemeanor; instead it issues a summons and citation. Before releasing Campbell, however, the police conducted a body-cavity search for drugs. Nothing was found, and no criminal prosecution ensued. Campbell then sued ten officers, the Chief of Police, and the City of Indianapolis, under 42 U.S.C. §1983, contending that the search violated the fourth amendment. He seeks not only damages but also an injunction against this practice. The district court denied Campbell’s request for a preliminary injunction, concluding that he has an adequate remedy at law. He immediately appealed under 28 U.S.C. §1292(a)(1).

Campbell supposes that money never is an adequate remedy for a constitutional wrong. That belief is incorrect. * * * Affirmed.

WILLIAMS, Circuit Judge, dissenting. The majority opinion fails to address key testimony in this case—factual allegations which not only require this court to evaluate Campbell’s claim in more detail than the majority opinion provides, but also suggest a different result. While I regard the question of whether Campbell has standing for a preliminary injunction as close, I ultimately conclude that he has satisfied that constitutional requirement and has also demonstrated the inadequacy of money damages. For these reasons, I dissent. [Dissent is 15 pages and includes much about the IPD, majority opinion is 3 pages]

WALLACE, DONALD R. v. DAVIS, CECIL (SD Ind., Judge Barker)

Before FLAUM, Chief Judge, and POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges. Petitioner-appellant filed a petition for rehearing and rehearing en banc on April 9, 2004. A majority of the judges on the panel voted to deny rehearing. A judge called for a vote on the petition for rehearing en banc, but a majority of the active judges did not favor rehearing en banc. Accordingly, the petition is denied.

RIPPLE, Circuit Judge, with whom ROVNER, DIANE P. WOOD and WILLIAMS, Circuit Judges, join, dissenting from the denial of rehearing en banc. Federal Rule of Appellate Procedure 35 explains that rehearing should be granted when “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions” or “(2) the proceeding involves a question of exceptional importance.” Both of these disjunctively-stated criteria in Rule 35—uniformity and exceptional importance—justify the court’s rehearing this case en banc. * * *

As to the second criterion for rehearing, exceptional importance, we need only recall that the Supreme Court has calibrated carefully its jurisprudence in the capital punishment arena to ensure reliability in the State’s decision to deprive a human being of life. See Johnson, 486 U.S. at 584 (“The fundamental respect for humanity underlying the Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a special need for reliability in the determination that death is the appropriate punishment in any capital case.” (internal quotation marks and citations omitted)). The majority opinion in this case rides roughshod over a cornerstone in that jurisprudence—that invalid factors infecting the weighing process must be cured by the State. The panel majority’s deviation from the course set by the Supreme Court is precisely the sort of exceptional error Rule 35 was intended to address. * * *

Also, whatever the correct outcome in this case, we remain under a fundamental obligation to ensure that the capital punishment jurisprudence of this court conforms to that of the Supreme Court. This obligation takes on special meaning when a panel majority speaks on an issue of immense importance in other death cases and does so in a manner that is fundamentally at odds with the Supreme Court’s carefully crafted jurisprudence.

Posted by Marcia Oddi on Monday, June 28, 2004
Posted to Indiana Decisions

Law - Blakely Blog launched

If sentencing is your thing, then the new Blakely Blawg should go on your list, along with the previously identified Sentencing Law and Policy Blog.

Posted by Marcia Oddi on Monday, June 28, 2004
Posted to General Law Related

Sunday, June 27, 2004

Indiana Decisions - Chicago Tribune writes on Indiana property tax situation

"Indiana tax shift exacts harsh toll: Property owners see bills balloon" is the headline to this overview today in the Chicago Tribune. Some quotes:

Under the old "true tax value" system, property taxes were based primarily on three factors: the value of the land, often outdated; depreciation, based entirely on the structure's age; and the replacement cost of a structure as determined by a local assessor.

The new system is based almost entirely on market value. But the effect of the switch in gritty industrial towns of the south shore has been acute.

Assessments on older homes, which make up a large part of the area's housing stock, were artificially low and the depreciation artificially high. In addition, heavy industries received a drastic reduction in their property values under the new system, leaving a gaping budget hole for local governments heavily dependent on the industries' property tax revenue. * * *

"Illogical" is a word often used to refer to the state's old property tax system. Typically, in assigning a value to a home, an assessor would use manuals on replacement costs and land values that were several years old, said Kurt Barrow, director of assessments for the local government finance agency. Depreciation, which could reach 80 percent of a home's value, was based on age only, regardless of how well maintained a home was or its restoration. Often an assessor would rely on his or her gut feeling when assigning a tax value.

Given that discretion, assessors often used it to stay in power or give breaks to friends. Occasionally, Lake County's practices led to federal indictments, as in the case of former Lake County Assessor Michael Jankovich, who pleaded guilty in 1987 to extorting payoffs for lowered assessments.

Under the system, about 60,000 of Lake's estimated 250,000 pieces of land were paying less than $200 a year in property taxes as late as 1999, Barrow said. * * *

Other parts of the state have experienced tax shock. But Lake County's pain is deep because of two factors. First, the special assessment significantly lowered assessments for U.S. Steel Corp., Ispat Inland Group Inc., International Steel Group Inc. and BP Products North America Inc., which collectively own nearly 9,000 acres in East Chicago, Gary and Whiting. Second, lawmakers increased the homestead tax exemption to $35,000 from about $6,000 as part of the new tax package, a move that allows thousands of homes with lower market value to continue paying next to nothing in property taxes.

By one estimate, the assessed value of the firms' properties plummeted to $328 million, from $1.15 billion a year earlier. That drop, combined with the homestead exemption, leaves an enormous tax revenue void to be made up in large part by owners of homes on the higher end of northern Lake County's property values.

A class-action lawsuit, filed in Lake Superior Court April 29 by Miller Beach residents, says the special re-assessment violates Indiana's constitutional ban on special legislation. The Indiana Supreme Court heard arguments on the case Wednesday, with a busload of Lake residents in attendance.

"The real and practical effect ... is catastrophic in proportions," the lawsuit states. "Ordinary people are subject to being ruined as to their finances, and as to their lives, to a degree and in a scope of numbers akin to a terrible plague or terrorist attack or horrific weather event or famine."

Posted by Marcia Oddi on Sunday, June 27, 2004
Posted to Indiana Decisions

Indiana Law - New laws take effect July 1

A number of the laws enacted by the 2004 General Assembly take effect July 1. An AP story today has a report. Some quotes:

INDIANAPOLIS (AP) -- Deadbeat state taxpayers, take note: Starting Thursday, thousands of your names may show up on the Internet. Under a new state law effective July 1, the Indiana Department of Revenue will post on its Web site the names of individuals and businesses who have not paid tax bills of $1,000 or more for at least two years and have warrants against them.

The agency is calling the page INDEBT, and the threat alone of being listed already has paid off. Since the agency sent out warning letters about the law to thousands of delinquent taxpayers in mid-May, it has collected more than $900,000 in back taxes. * * *

Other new laws approved by lawmakers in the last General Assembly session take aim at the state's economy, public safety and crime. Ninety-eight bills became law, and most of those will take effect Thursday. * * *

One new law requires additional public disclosure of information about children who die as a result of abuse or neglect. Another law due to take effect, which would mandate criminal history checks on relatives before they take emergency placements of abused and neglected children, has been stymied by the Child Protection Services' failure to win swift access to a national criminal database. * * *

Residents will have another year to comply with a law that drew intense interest during its trek through the General Assembly. Starting July 1, 2005, the state will require children to ride in car seats or booster seats up to age 8.

More on the criminal history checks problem is in this AP story. Some quotes:

INDIANAPOLIS — Days before a state law was to take effect, Indiana has been set back in efforts to run criminal background checks on relatives taking custody of abused or neglected children. The FBI has rejected the state's request for access to a national criminal database. The information was necessary if, under the law due to take effect Thursday, the state was going to be able to place children with relatives in a timely manner.

The FBI's action prompted the Indiana Civil Liberties Union to seek a temporary injunction against the law Friday. Under the law, children removed from their biological parents' homes would not be placed with relatives until everyone in the children's new home received criminal background checks.

The Indiana Family and Social Services Administration acknowledged the ICLU's legal action restrained the ability of the agency and the courts to conduct background checks. * * *

The FBI told the state last week that Child Protection Services could not gain access criminal records in the Department of Justice database because it is not a criminal justice agency. * * *

The ICLU got involved Friday, filing a motion in Marion County's juvenile court seeking to overturn a state decision to place a child in foster care rather than with a relative.

ICLU legal director Ken Falk said the organization was seeking to have the eventual decision in the case decided on behalf of all Indiana children who might be placed in foster care instead of with suitable relatives. "What this law would do, in effect, is make it much easier to place a child with a stranger than with a relative," Falk said. The state performs only local background checks on foster parents, he said.

[Update 6/30/04] A story today in the Star reports:

An FBI official said Tuesday that Indiana officials never sought the federal agency's advice on a new state law that requires caseworkers to perform FBI background checks on relatives who want to provide foster care to a child family member. Had that happened, the state law could have been crafted to be in agreement with federal law, said agent James H. Davis of the FBI's Indianapolis office.

As the law is written, caseworkers won't have access to FBI criminal records when the law goes into effect Thursday, officials said. This means nationwide criminal records checks cannot be performed. * * *

Last month, Marion County juvenile court Judge James W. Payne criticized House Enrolled Act 1194, saying he never was asked for input on the proposal. Payne predicted that the type of national background checks called for by the law could result in children being delayed in licensed foster care for weeks or even months while the investigations took place. This would have jeopardized Indiana's federal foster care funding because of bans on multiple placements of children.

Posted by Marcia Oddi on Sunday, June 27, 2004
Posted to Indiana Law

Law - Justice O'Connor dedicates windmill in Kendallville

The Fort Wayne Journal Gazette reports today:

KENDALLVILLE – U.S. Supreme Court Associate Justice Sandra Day O’Connor loves windmills. And that love, which comes from her childhood in the semi-arid border region of New Mexico and Arizona, brought her and her brother to the Mid-America Windmill Museum’s annual Windmill Festival for the dedication of an 18-foot Samson-replica windmill.

Dedicated in honor of O’Connor and her brother, H. Alan Day, the windmill is a replica of windmills that pumped water on the Lazy B Ranch where they grew up. The windmill was obtained from Terrell County, Texas, where it had been operating a well more than 640 feet deep, according to museum officials.

Posted by Marcia Oddi on Sunday, June 27, 2004
Posted to General Law Related

Environment - Sunday Indianapolis Star editoralizes

"State's environmental record should be an issue in governor's race, but it's not," is today's lead editorial in the Sunday Indianapolis Star. This piece is the 4th of five the Star has planned on "issues crucial to this year's race for governor of Indiana." Some quotes:

It's not that environmental concerns don't exist:

• Indiana ranked sixth in the nation on the Environmental Protection Agency's recent Toxics Release Inventory based on the tonnage of pollutants released to the air, water and ground.

• Rivers, streams and lakes -- posted with fish advisories -- are mostly unswimmable.

• Twenty-four counties with two-thirds of the state's population have been designated non-attainment areas for violating health-based ozone standards, jeopardizing economic growth.

• Farmland is disappearing at a rate of about 100,000 acres a year, while urban sprawl exacerbates congestion in areas with inadequate land-use or public transportation policies.

• The state faces a dangerous buildup of mercury from coal-fired power plants and other toxic pollutants.

• Weak regulations protect only some of the remaining 15 percent of the state's original wetlands that filter and replenish Hoosier groundwater.

• Indiana lags behind other Midwestern states in land set aside for parks and wildlife preserves, while less than $2 million a year from environmental license plate sales is available for new land purchases. * * *

But for now, both major candidates appear focused on economic development and little else. Neither seems eager to address the environment, although environmental policies and economic development increasingly are linked. * * *

An Institute for Southern Studies report correlating environmental policies and economic development ranked Indiana 48th out of 50 states overall. It found a strong connection between states doing well economically and those that had quality environmental programs. Indiana, ranked 44th in environmental spending, didn't fare well in either category.

Citing looming problems attracting new businesses to counties designated non-attainment for ozone or soot, as well as soaring water rates in communities such as Martinsville or Pines due to polluted groundwater, [Tim Maloney, executive director of the Hoosier Environmental Council] said, "The old argument that we need to set environmental protections aside to make economic progress is simply false. We have plenty of proof." * * *

There are plenty of issues relating to the environment worth debating: land use policies, energy production, fuel-cell technology, wetland and aquifer protection, septic systems, ozone, small-particle soot, brownfield cleanup, recycling, regulatory policymaking and mercury -- to name a few.

In a manufacturing and agricultural state containing huge but sulfuric coal reserves along with wondrous natural assets -- from fertile land to bountiful hardwood forests, from limestone caverns to the vast Great Lakes -- admittedly there are no easy answers. But the voters at least deserve dialogue and debate about environmental issues that affect their health, livelihoods and quality of life.

Posted by Marcia Oddi on Sunday, June 27, 2004
Posted to Environmental Issues

Indiana Law - Enforcing Scooter Laws a Problem

"Indiana Having Trouble Laying Down the Law on Scooters" is the headline to this story today in the Washington Post. Some quotes:

Police, motorists and pedestrians in Indiana are dealing with an increasingly common menace on the streets -- an invasion of scooters with powerful motors often ridden by youngsters with little experience in the rules of the road.

It is against state law for kids younger than 15 to ride motorized scooters or minibikes that go faster than 25 mph, but many people do not know this, and police are unsure how far to go in enforcing the law. Most times, they just call parents. * * *

Along with traditional foot scooters with gas or electric motors, people are riding European scooters and small replicas of Japanese power bikes called "pocket bikes."

"The popularity of them has increased tremendously, and most people don't know what the laws are -- that you have to wear a helmet and that you have to be at least 15," state police spokesman Scott Beamon said.

Meanwhile, the front page of the Sunday Styles section of the NY Times today has this story, dateline San Francisco and titled "Unfazed by the Law, Pocket-Bikers Roll On," complete with appealing photo -- indicating that the problem is not limited to Indiana. A quote:

"They are the summer's hottest fad," said Lt. Kit Crenshaw, a traffic enforcement officer in the San Francisco Police Department, which has begun issuing tickets to riders and even impounding their bikes. "There's a veritable infestation," he said.

The bikes, most without lights and horns and all without vehicle identification numbers, are not legal for street use and are considered potentially hazardous to riders and pedestrians, the police say. But the people buying them — mostly adolescent boys too young to have drivers' licenses — seem unconcerned with anything that would restrict their fun. * * *

Far more dangerous than the riders' lack of safety equipment, however, is the size of the bikes. "Your forehead is exactly lined up with cars' bumpers," said Capt. Rick Bruce of the Bayview District Station of the San Francisco Police Department. His jurisdiction is inundated with the bikes. "Someone is going to be killed," he said.

Indiana papers have had a number of stories recently about the scooter and pocket bike probem:

"Scooter riders bypass the law: Motorized vehicles are proliferating, but many kids are riding illegally, police say," is the headline from a comprehensive June 14th story in the Indianapolis Star that also includes a sidebar paraphrasing the law. Some quotes from the story:

The law is clear: No one younger than 15 can ride a motor vehicle on the road. But motorized scooters and minibikes of all sorts are invading the neighborhoods of Central Indiana and other areas, and many riders are much younger than 15. The situation is causing headaches for authorities. Some police agencies, such as in Hamilton County, are combining education efforts with an enforcement crackdown. Other agencies prefer taking up the matter with parents. * * *

A variety of vehicles are showing up on the streets. One of the more popular is the traditional foot scooter with a gas or electric motor. There are also smaller-scale European-style scooters. And popping up more and more are "pocket bikes" -- small replicas of Japanese power bikes. Prices range from less than $150 for a foot scooter with an electric motor to more than $2,000 for a European-style scooter.

The June 17th Fort Wayne Journal Gazette had an editorial on the issue. Some quotes:

The crackdown on motor scooters in Greenwood and other Indiana cities raises the question of whether Indiana law governing them is too permissive. As an Associated Press story Tuesday reported, the police are finding that many teens are violating even the state’s relatively lax laws that allow anyone 15 and older with a valid state ID card to ride the two-wheelers. * * *

Lawmakers should consider a separate licensing process for scooter riders. Testing 15-year-olds on traffic rules would be a healthy precursor for the real driver’s test. Given the state’s fiscal situation, user fees would have to finance the licensing, and state officials would need to determine those costs. If the license fee is unreasonably high, such a license would be impractical. An alternative would require scooter riders to have a valid driver’s license.

Posted by Marcia Oddi on Sunday, June 27, 2004
Posted to Indiana Law

Saturday, June 26, 2004

Indiana Decisions - More on the Celebration Fireworks decision

The Indianapolis Star reports here today "Celebration Fireworks wins appeal of state fees," referencing the Court of Appeals decision yesterday (scroll down a few entries) in Tracy Boatwright, et al. v. Celebration Fireworks. Some quotes:

Indiana's state fire marshal lost another battle with a fireworks company Friday. Celebration Fireworks convinced the Indiana Court of Appeals that more than $300,000 in fees charged by Fire Marshal Tracy Boatwright were illegal. The unanimous ruling by a three-judge panel is the latest in a series of battles pitting state and local officials against the same fireworks companies they regulate.

In Friday's case, the fire marshal's office required wholesalers to pay a $1,000 fee for each location they operated, which cost Celebration Fireworks $306,000 from 1991 to 1994. The company, based at 5860 N. Michigan Road, contended in its 1995 lawsuit that state law required only one $1,000 fee per company. After the challenge was filed, the fire marshal stopped assessing multiple-site fees.

After a Delaware Circuit Court judge ruled last year that the fees were illegal, Indiana Attorney General Steve Carter announced he wouldn't appeal because attorneys in his office felt the ruling left little in doubt. But officials with the fire marshal's office didn't want to give up. They hired a private law firm to pursue the appeal.

For details on the Attorney General/Fire Marshall dispute re pursuing an appeal, see this November 11, 2003 Indiana Law Blog entry.

More from today's Star story: "The fire marshal's office has been involved in lawsuits since at least 1997 over how to enforce state fireworks laws. Boatwright wanted the courts to authorize him to close a loophole in the law and allow him to ban most fireworks. In 2002, the Supreme Court refused to expressly grant him that authority." [See The Indiana Fireworks Distributors Assn. v. M. Tracy Boatwright (3/12/02 IndSCt).]

In a related story, the Star reported earlier this week:

With the July Fourth holiday looming, Indianapolis officials want to lower the boom on Celebration Fireworks. The city said today that it would seek a court order to close the chain's longtime Northwestside location. It violates zoning laws to sell fireworks at the site at 5860 N. Michigan Road, said Teri Kendrick, city prosecutor.

The decision comes nearly a week after the Indiana Supreme Court refused to hear an appeal from Celebration Fireworks owners trying to keep the store open. Claiming the store was a fire hazard, neighbors filed a lawsuit two years ago to force Celebration to close the location. * * * The city previously tried to close the business, but the Board of Zoning Appeals granted it a variance in 2002. * * * Then-Marion Superior Court Judge Steven Frank ruled in favor of Celebration Fireworks, but the Indiana Court of Appeals reversed his decision in December 2003. The Appeals Court ruled that the zoning board failed to show how the store would benefit the community.

Posted by Marcia Oddi on Saturday, June 26, 2004
Posted to Indiana Decisions

Indiana Law - Blakely v. Washington will not impact Indiana, judges say

This week's U.S. Supreme Court decision in Blakely v. Washington held that "only juries, not judges, may increase criminal sentences beyond the maximums suggested by statutory guidelines, a decision that throws into doubt sentencing procedures used by nine states and possibly the federal government," according to an article in the Washington Post cited in this Indiana Law Blog entry yesterday.

The relevant facts, according to a NY Times story also cited in the earlier entry, were: "In the case before the court on Thursday, a man pleaded guilty to kidnapping his estranged wife, a crime that under Washington law ordinarily carries a maximum sentence of 53 months. At sentencing, however, the judge added an extra 37 months, based on his finding that the defendant, Ralph H. Blakely, Jr., had acted with 'deliberate cruelty.'"

What about Indiana? This article today in the Gary Post Tribune reports:

Porter Superior Court Judge Roger Bradford said Friday Indiana has sentencing ranges, taking into account mitigating and aggravating circumstances, but no provision for jury involvement, with the exception of recommending the death penalty.

If someone is charged with a D felony, for example, Bradford said the sentencing range is from six months to three years. Judges weigh mitigating and aggravating factors in determining the sentencing length. There is no provision to sentence beyond the maximum limit, he said.

Superior Court Judge Bill Alexa said there is flexibility in length of sentence under Indiana law, including a murder conviction, with a sentencing range of 45 to 65 years. For an A felony, the range is 20 to 50 years; B felony, 6 to 20 years; and C felony, 2 to 8 years.

Senior Judge Thomas Webber, who retired as a Superior Court Judge and works part-time in the court system, said the state of Washington appears to have narrower guidelines than Indiana for sentencing, similar to the federal courts. The Supreme Court decision should have no impact on Indiana courts, Webber said.

Attorney David Welter, supervisor of the criminal side of the Valparaiso University law clinic, said for the most part the high court ruling won’t affect criminal cases in Indiana. There could be rare exceptions under a plea agreement or guilty plea without an agreement imposing limits, Welter said.

[More] An analysis by Adam Liptak, to appear in the Sunday NY Times, reports:

Thursday's decision requires any factor that increases a criminal sentence, except for prior convictions, to be proved to a jury beyond a reasonable doubt. Many sentencing schemes allow or require judges to impose longer sentences based on all sorts of criteria, including the defendant's background and the nature and severity of his crime.

The decision may also affect sentencing laws in at least seven states in addition to Washington and the federal system, said Kevin R. Reitz, an expert on sentencing at the University of Colorado. In all of those jurisdictions, many people sentenced in recent years may be expected to challenge their sentences. And prosecutors, defendants and judges in pending and new cases will face an altered landscape.

"It throws the whole country's criminal system into turmoil," said Professor [Frank O. Bowman, an author of a treatise on sentencing law], who teaches law at Indiana University. * * *

[U]nclear is whether the decision will give judges more or less power in deciding sentences. The decision seemed to endorse both traditional sentencing schemes that leave sentences entirely up to judges so long as they do not exceed statutory maximums and schemes that designate fixed sentences for given crimes. Only a middle approach, in which judges are required to make their own factual findings to increase sentences, was held unconstitutional.

Sentencing guidelines that allow or require judges to impose more lenient sentences based on mitigating factors are apparently unaffected.

Update 6/27/04] An editorial today (Sunday) in the Washington Post is a must read. It begins:

THE SUPREME COURT dropped a bombshell on the world of criminal sentencing last week. The case, Blakely v. Washington, is the latest and most dramatic in a line of cases in which an ideologically eclectic five-member majority has sought to breathe new life into the right to trial by jury. The cause seems noble. But this line of cases has been a Pandora's box, opened now by the Blakely decision. The decision casts grave and unwarranted constitutional doubt on sentencing regimes around the country, including federal sentencing guidelines, that have been designed to make punishments more predictable and more evenly applied.

And the Christian Science Monitor has this 6/28/04 story, headlined "Supreme Court throws sentencing guidelines into doubt: A Washington State case prompts other states, as well as federal officials, to reexamine their own sentencing systems." A quote:

Indeed, by declaring that Blakely's sentence violates the US Constitution, the high court has set off a flurry of activity in other states and within the federal government to determine if their own systems might also be unconstitutional. "There will be tremendous dislocation in any number of state systems and the federal system," says Kevin Reitz, a professor at the University of Colorado School of Law in Boulder and an expert on state sentencing-guideline systems.

Professor Reitz says roughly half of the 15 states with guideline systems will be affected by the Blakely decision. Oregon and North Carolina may be particularly vulnerable to challenges, he says. But most in jeopardy is the federal system with its large number of judicially enhanced sentences, he says.

"Up to 90 percent of federal sentences will run afoul of Blakely, as opposed to 10 percent of sentences in state systems," he says.

Posted by Marcia Oddi on Saturday, June 26, 2004
Posted to Indiana Law

Friday, June 25, 2004

Environment - Environmental Stories Today

"Keramida Environmental acquires Heritage unit" is the headline to this story today on the Indianapolis Star website: "Keramida Environmental has acquired the environmental engineering and consulting unit of Heritage Environmental Services. The sale was announced Thursday. The companies said seven employees will transfer from Heritage to Keramida in Indianapolis."

Storm water. The Terre Haute Tribune Star reports here today:

A few simple fixes to Vigo County's storm water control system could save millions of dollars in a few years when federally mandated standards take effect. "We are at a really important juncture in time," said Joe Rozza, with Gresham Smith and Partners, a consultant working with several community institutions to develop a plan to make sure the area doesn't have to face the huge expense of meeting water purification standards that will become standard in five years.

"You don't want to start treating storm water. You don't want to get to that point," said Mike Cline of Hannum, Wagle and Cline. The engineering company is working with the city, too, to make sure the city avoids huge expense in 2010.

Grouped under the name "Rule 13," the Indiana Department of Environmental Management mandates concerned parties throughout the state meet guidelines for watershed management as part of a state and federal push to improve overall water quality. The first part of the push, reducing the number of combined sewer overflows, already has been mapped out in a plan submitted by Terre Haute to IDEM in April 2002. That plan is estimated to cost between $40 million and $50 million.

The second part, treatment of storm water, is still in planning stages. The area's plan, drawn up for use by Terre Haute, Vigo County, the Honey Creek/Vigo Conservancy District, West Terre Haute, Seelyville, Rose-Hulman Institute of Technology, Indiana State University and Ivy Tech State College, seeks to reduce the amount of pollutants carried to the waterways through land use, water use and rain.

If those two programs meet sufficient guidelines, the third plank, treating storm water, won't be necessary. If they don't, Cline said, the costs could dwarf the CSO plan. Rozza said the best way to avoid those costs is to concentrate on six areas that contribute to pollutants in storm water.

Wetlands. The Gary Post Tribune reports today (following up on an earlier story):

CROWN POINT — The U.S. Army Corps of Engineers has ordered crews to stop work in the vicinity of a protected wetland where soil was illegally dumped and roads may have been built without proper permits near a residential subdivision. Army Corps field representatives Wednesday found