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Saturday, July 31, 2004

Indiana Decisions - Overview of Blakely in the 7th Circuit and in Indiana State Courts, Part II

Part II. Blakely in Indiana State Courts

With all the focus on the impact of Blakely on the federal sentencing guidelines, and on the federal district court and appeals court activites, it is easy to forget that Blakely v. Washington was an appeal from a state court and involved state law.

The State of Washington has sentencing guidelines, similar the federal guidelines. Washington's SENTENCING REFORM ACT OF 1981 (Chapter 9.94A RCW) is available here.

To see the guideines in operation, I found it useful to read the following paragraphs from near the beginning of the U.S. Supreme Court's decision in conjunction with the provisions of the Washington Sentencing Reform Act cited. Although, as the Court notes in footnote 1, "parts of Washington's criminal code have been recodified and amended", it is not difficult to identify the referenced provisions:

The case then proceeded to sentencing. In Washington, second-degree kidnaping is a class B felony. 9A.40.030(3). State law provides that "no person convicted of a [class B] felony shall be punished by confinement . . . exceeding . . . a term of ten years." 9A.20.021(1)(b).

Other provisions of state law, however, further limit the range of sentences a judge may impose. Washington's Sentencing Reform Act specifies, for petitioner's offense of second-degree kidnaping with a firearm, a "standard range" of 49 to 53 months. See 9.94A.320 (seriousness level V for second-degree kidnaping); App. 27 (offender score 2 based on 9.94A.360); 9.94A.310(1), box 2-V (standard range of 13-17 months); 9.94A.310(3)(b) (36-month firearm enhancement).

A judge may impose a sentence above the standard range if he finds "substantial and compelling reasons justifying an exceptional sentence." 9.94A.120(2). The Act lists aggravating factors that justify such a departure, which it recites to be illustrative rather than exhaustive. 9.94A.390. Nevertheless, "[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense." * * *

Pursuant to the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. After hearing Yolanda's description of the kidnaping, however, the judge rejected the State's recommendation and imposed an exceptional sentence of 90 months -- 37 months beyond the standard maximum. He justified the sentence on the ground that petitioner had acted with "deliberate cruelty," a statutorily enumerated ground for departure in domestic-violence cases. 9.94A.390(2)(h)(iii) .

In short, Blakely pled guilty to the kidnapping of his estranged wife. The general penalty for second-degree kidnapping, a Class B felony, was up to 10 years. However, the presumptive sentence for the facts admitted in his plea was 49 to 53 months. The law in Washington State allows the trial judge to enhance this sentence. After making a judicial determination that Blakely had acted with deliberate cruelty, the judge added an additional 37 months to the statutory maximum of 53. Blakely appealed, "arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."

Presumptive sentencing is a compromise between legislatively mandated determinate and indeterminate sentences. It allows a judge to retain some sentencing discretion (subject to judicial review). The Washington case is an example of how the statute sets the sentencing range (up to 10 years for kidnapping) and the typical sentence for the facts admitted or found by the jury (here 49 to 53 months). At the sentencing stage, the Washington statute allowed the judge to modify the presumptive sentence by finding mitigating or aggravating circumstances.

However, the Supreme Court ruled that the facts supporting the judge's finding of "deliberate cruelty" were "neither admitted by petitioner nor found by a jury." In Apprendi v. New Jersey (2000) the Court had "concluded that the defendant's constitutional rights had been violated because the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding." Here the State argued "that there was no Apprendi violation because the relevant 'statutory maximum' is not 53 months, but the 10-year maximum for class B felonies." But the Court said no: "[T]he relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."

Indiana is not a sentencing guidelines state. A dozen or more states have formal sentencing guidelines akin to those of the State of Washington and the Federal Guidelines. Indiana does not fall into this category.

However, to choose a situation close to that in Washington State, Indiana's IC 35-42-3 applies to kidnapping and criminal confinment. IC 35-42-3-3(a) classifies the offense as a Class D felony. Subsection (b) provides that the offense is a Class B felony if it is: (A) committed while armed with a deadly weapon.

IC 35-50-2 concerns sentences for felonies, including murder. IC 35-50-2-1 defines "minimum sentence" as: (3) for a Class B felony, six years; and (5) for a Class D felony, one-half year.

IC 35-50-2-5, Class B Felony:

A person who commits a Class B felony shall be imprisoned for a fixed term of ten (10) years, with not more than ten (10) years added for aggravating circumstances or not more than four (4) years subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand dollars ($10,000).
IC 35-50-2-7(a), Class D Felony:
(a) A person who commits a Class D felony shall be imprisoned for a fixed term of one and one-half (1 1/2) years, with not more than one and one-half (1 1/2) years added for aggravating circumstances or not more than one (1) year subtracted for mitigating circumstances. In addition, he may be fined not more than ten thousand dollars ($10,000).
Finally, IC 35-38 is titled "Proceedings following dismissal, verdict, or finding." IC 35-38-1 deals with "Entry of judgment and sentencing." IC 35-38-1-7.1 deals with sentencing factors. Subsection (b) is the list of "aggravating factors."

Putting this all together, if Mr. Blakely pled guilty in Indiana to armed criminal confinement (IC 35-42-3-3-(b)), he would be pleading to a Class B felony. Under IC 35-50-2-5, a person who pleads guilty to, or is convicted of, a Class B felony shall be imprisoned for 10 years (the presumptive sentence), "with not more than 10 years added for aggravating circumstances or not more than 4 years subtracted for mitigating circumstances."

Arguably, although the format of the Indiana law differs from that of the Washington State law, the end result is the same -- at the sentencing stage each law allows a judge to modify the presumptive sentence by finding specified mitigating or aggravating circumstances. The U.S. Supreme Court in Blakely said that the Washington State law violated the defendant's "constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."

What have the Indiana courts said? A brief look at what the Indiana courts have said since the U.S. Supreme Court's 2000 decision in Apprendi may indicate what to expect in the future.

In Aaron Rodriguez v. State (4/7/03 IndCtApp, trans. denied), Judge Riley, beginning on page 7, gives a review of the modern changes in sentencing in Indiana, noting that "In 1976, our General Assembly abolished jury sentencing by declaring that 'the court shall fix the penalty of and sentence a person convicted of an offense.' The opinion then goes through the development of what is now IC 35-38-1-7.1, a "standard set of factors [that] was designed to bring uniformity to sentencing." The trial court's responsibility is summed up beginning on page 16:

When considering the appropriateness of the sentence for the crime committed, courts should initially focus upon the presumptive sentence. Hildebrandt v. State, 770 N.E.2d 355, 361 (Ind. Ct. App. 2002), trans. denied. Trial courts may then consider deviation from the presumptive sentence based upon a balancing of the factors which must be considered pursuant to I.C. 35-38-1-7.1(a) together with any discretionary aggravating and mitigating factors found to exist. Hildebrandt, 770 N.E.2d at 361.

The presumptive sentence is meant to be the starting point for the trial courts consideration of the sentence that is appropriate for the crime committed. See Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002). In the present case, Rodriguez pled guilty to the charge of operating a vehicle while intoxicated causing death, a Class C felony. The nature of the offense specifically takes into account that a death occurred as a result of driving while intoxicated. See I.C. 9-30-5-5(a)(3). The presumptive sentence for a Class C felony is four years, with not more than four years added for aggravating circumstances, and not more than two years subtracted for mitigating circumstances. See I.C. 35-50-2-6.

Note that there is no mention of Apprendi in this opinion.

In Leone v. State (10/22/03 IndSCt) Apprendi is mentioned on pages 10-11. In this case (as in more than 90% of criminal cases, including the defendants in both Blakely and Apprendi) there was no trial; Leone pled guilty. In the appeal, Chief Justice Shepard writes:

Leone contends that he was sentenced to life without parole under a facially and structurally unconstitutional statutory sentencing scheme, citing Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

In Apprendi, the U.S. Supreme Court held unconstitutional a statute that allowed trial courts to extend the traditional sentencing scheme when they involved hate crimes. See Apprendi, 530 U.S. at 468-97. The Court stated, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 490. In Ring, the Court applied Apprendi to capital cases, holding that the aggravating circumstances had to be determined by a jury. Ring, 536 U.S. at 609. Neither case, however, addresses its application when the defendant issues a guilty plea and waives his right to a jury trial, as the State properly argues. With a plea of guilty, Leone forfeits claimed entitlement to certain rights including the right to a jury trial. See Id. at 334-35; Mapp v. State, 770 N.E.2d 332, 334 n. 3 (Ind. 2002).

Neither Apprendi nor Ring suggests that a defendant is not entitled to waive his right to a jury trial. The trial court found that Leones guilty plea was made freely and voluntarily, and that a factual basis for the plea existed. The trial court, in fact, questioned Leone several times to ensure that he understood his rights and was fully aware that he waived those rights. We conclude that Leones sentence does not conflict with Apprendi or Ring.

[emphasis added]

Access Part I of this article, Overview of Blakely in the 7th Circuit Courts, here.

Posted by Marcia Oddi on Saturday, July 31, 2004
Posted to Indiana Decisions

Environment - Wetlands: Rapanos litigation continues

In U.S. v. Rapanos (7/26/04), a panel of the 6th Circuit last week affirmed the district court's findings and conclusions that:

Rapanos had filled 22 of 28 acres of protected wetlands at the Salzburg site, 17 of 64 acres of protected wetlands at the Hines Road site, and 15 of 49 acres of protected wetlands at the Pine River site. The district court concluded that the government had established that 54 of the filled acres fit the three parameters for wetlands, i.e., vegetation, soils, and hydrology. In addition, the court found that the United States did not meet its burden regarding the existence of wetlands at the Freeland and Mapleton sites. The district court entered these findings and conclusions on March 22, 2000.
If "Rapanos" sounds familiar, it is because the U.S. Supreme Court in April denied three wetlands appeals, including Rapanos v. United States. See the Indiana Law Blog write-ups here and here. The latter entry quotes Linda Greenhouse of the NY Times stating: "John A. Rapanos, a Michigan landowner who acted without a permit to fill wetlands that were 20 miles from a navigable river, was criminally convicted and now faces a 10-month prison sentence."

That was the criminal proceeding. As explained in the 6th Circuit opinion, "Criminal charges were brought simultaneously with the instant civil action." I discovered in reading this week's opinion that counsel for appellants was: "David E. Dearing, Indianapolis, Indiana." We practiced at the same firm in the 90s. I gave David a call and learned that he is litigating several other significant wetlands cases.

Posted by Marcia Oddi on Saturday, July 31, 2004
Posted to Environmental Issues

Law - Michigan Supreme Court Strikes Down 1981 Poletown Decision

In a lengthly Indiana Law Blog entry from May 11, 2003, on the use of eminent domain for private development, there is discussion of the 1981 Poletown Neighborhood Council v. City of Detroit decision where: "The Michigan Supreme Court ruled that a community could be condemned to allow General Motors to build a factory, accepting the argument that it would revitalize the community." The entry also noted that "The Poletown decision is used in a number of Law & Economics courses. Here is one link to the decision." An illustrated history of Poletown can be found here, via the Detroit News.

Yesterday the Michigan Supreme Court overturned Poletown. As reported here in the Detroit Free Press:

Reversing more than two decades of land-use law, the Michigan Supreme Court late Friday overturned its own landmark 1981 Poletown decision and sharply restricted governments such as Detroit and Wayne County from seizing private land to give to other private users.

The unanimous decision is a decisive victory for property owners who object to the government seizing their land, only to give it to another private owner to build stadiums, theaters, factories, housing subdivisions and other economic development projects the government deems worthwhile.

Detroit and other municipalities have used the Poletown standard for years to justify land seizures as a way to revitalize. * * *

Justice Robert Young, who wrote the lead opinion, called the 1981 case allowing Detroit's Poletown neighborhood to be cleared for a GM plant a "radical departure from fundamental constitutional principles."

"We overrule Poletown," Young wrote, "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

Alan Ackerman, one of the attorneys who represented landowners in the case, said he was "elated at the recognition that it is a government of limited powers. The constitution did not contemplate that the government would do everything for everybody." * * *

The court said its ruling covers any condemnation cases now being heard before lower courts in which Poletown issues have been raised. The former owners of Poletown properties that were seized to clear land for the GM plant are not affected by the decision.

The decision won't stop all uses of eminent domain. All sides agreed governments can still take private land for traditional uses such as slum clearance or for a private use deemed essential to the public good, such as to build a regulated public utility. And the government's ability to seize land for governmental purposes such as building schools and roads was never in question.

What the decision does mean is that the cost of land just went up for municipalities trying to accomplish economic development. Now that governments can no longer use the threat of seizure, private owners and speculators could demand higher prices to get out of the way of projects that government leaders deem essential.

Here is the AP coverage in the Detroit Free Press.

The decision does not appear to be available yet -- when it is I will post it here. [Update 8/2/04] Here is the case link to the opinion, County of Wayne v. Hathcock.

[More] The Illinois Supreme Court, on 4/4/02, in Southwestern Illinois Development Authority v. National City Environmental, also ruled that "taking one owners private property and giving it to another for private use is an unconstitutional use of the power of eminent domain." Access it here.

A story dated 7/27/04, originally published in the San Diego Daily Transcript, reports:

The U.S. Supreme Court has been asked to consider the constitutionality of a widespread municipal practice: using eminent domain for economic development. The Court has been asked to rule on whether local governments may use eminent domain for economic development when the property being taken is not blighted.

In a July 19 petition, the Washington, D.C.-based Institute for Justice asked the court to review a recent Connecticut state Supreme Court ruling that approved the taking of non-blighted homes for economic development. Officials in New London, Conn., want to take 15 homes and businesses owned by seven families and give the land to a private developer to create facilities to complement the nearby Pfizer research center.

If the Supreme Court agrees to hear the case it could resolve an issue that has divided the states as more localities, including San Diego, use eminent domain powers in the pursuit of increased tax revenues and jobs. At question is when does a city's appetite for revenue and jobs crash head on with the constitutional rights of a private property owner? * * *

California is among the most active states that have condemned property for the benefit of other private parties, with San Jose listed among the "worst" cities engaged in the practice, according to the report.

Bullock said the trend began in 1981 with the landmark decision in Poletown Neighborhood Council v. Detroit by the Michigan state Supreme Court. The ruling allowed Detroit to condemn a Polish neighborhood so that General Motors could develop a plant there. The city argued at the time that the plant would help turn around its deteriorating economic condition. The state court is reconsidering that decision and is expected to issue a ruling July 31. [As noted above, the Michigian Court overruled Poletown.]

The Institute for Justice hopes the Supreme Court will be compelled to hear the case because of numerous conflicting appellate court decisions on the issue. Bullock said the court is likely to make its decision in October.

Seven state supreme courts have upheld the right of cities to take non-blighted property for economic development, while eight states forbid private-to-private transfers where there is no blight. Another three are preparing to rule such condemnations unconstitutional, according to the institute's petition to the court. California is not included in any category.

Posted by Marcia Oddi on Saturday, July 31, 2004
Posted to General Law Related

Indiana Decisions - More on the 7th Circuit's En Banc Ruling Yesterday

Yesterday, as reported here by the Indiana Law Blog, the 7th Circuit, sitting en banc, ruled 8-3 to uphold the decision of Judge Sharp of the ND Indiana, banning John Doe for life from all park property in the City of Lafayette (and reversing an earlier panel which had ruled 2-1 against Sharp - access that ruling and discussion here). Bloomberg News covered the decision yesterday with this headline: "Pedophile Can Be Punished for Thoughts, Court Says." The Indianapolis Star has an AP story here.

The Lafayette Courier & Journal has lengthy coverage here in a story titled: "City parks ban upheld: Federal appeals court backs Lafayette's 'John Doe' argument." Some quotes:

In the case, John Doe v. the city of Lafayette, a Lafayette resident -- who was granted anonymity by the courts -- was banned after authorities received a tip that he had been watching children at Murdock Park and having sexual thoughts about them.

The 7th Circuit Court of Appeals, by an 8-3 vote, ruled Friday in favor of the city, reversing a decision made 13 months ago by a three-judge panel of the same Chicago-based federal court.

"We believe that Mr. Doe was banned from the parks because of his thoughts," said Ken Falk, an Indiana Civil Liberties Union attorney representing John Doe, "and that we all have the right to think, and that we should not be punished for those thoughts."

Falk said no decision has been made on whether to appeal the ruling to the U.S. Supreme Court, John Doe's last remaining legal recourse. * * *

John Doe filed the federal lawsuit in November 2000, challenging the parks ban on First Amendment and 14th Amendment grounds.

"Our First Amendment argument was that the reason he was banned was because of what he was thinking," Falk said. "And he did not act on those thoughts, and therefore that violated our basic First Amendment right to think.

"And our 14th Amendment argument was based on the fact that we as citizens have the right to wander and enter public spaces absent some compelling reason, and the compelling reason can't be based on thought." * * *

Lafayette attorney Jerry Withered represented the city in the case.

"The court based its decision primarily on the fact that Mr. Doe's conduct in January 2000 was inappropriate," he said. "His actions of cruising for children, having sexual urges for children, going into Murdock Park, watching these kids for a while and almost molesting them before he left were inappropriate and deserving of a ban from the parks by the city.

"The court held that his conduct was just that -- conduct -- and not speech or thoughts. The distinction is important because the First Amendment protects speech or expressive conduct. The First Amendment does not provide fundamental-right protection for conduct only."

Interestingly, the Lafayette Journal & Courier reporter, Marc B. Geller, also picks up on an Indiana Court of Appeals ruling this week, Travis v. State (7/28/04) (see ILB entries here and here) relating to banning an individual from a Kokomo park:
In a separate case, the Indiana Court of Appeals ruled Wednesday that state law does not authorize police officers to place people on a trespass list or ban them from a public park.

The state appeals court said a Kokomo police officer overstepped his authority when he saw Stephen L. Travis sitting on a city park bench in September 2002 and arrested him for trespass. Another officer, Greg Baldini, had encountered Travis and some other people gambling in the park two days earlier and told him not to come back or he would be arrested for trespass.

"We don't think the Kokomo case has any bearing on the John Doe case," Withered said. "First, the Kokomo situation was a criminal trespassing case, whereas this is a civil ban of Mr. Doe from city parks.

"Secondly, the Kokomo case involved a police officer issuing a ban to the individual, and the court of appeals held that the police officer had no legal authority to do so. Here, it was the city parks department, which actually controls all of the park property, which issued the ban to Mr. Doe."

Joe Bumbleburg, attorney for the Lafayette parks department, expects his counterparts across the country will look to the 7th Circuit Court of Appeals decision for guidance.

Finally, accompanying the article is a timeline of the John Doe case.

Posted by Marcia Oddi on Saturday, July 31, 2004
Posted to Indiana Decisions

Law - Douglas Berman Speaks!

Weekend Edition Saturday had a good piece this morning on Blakely, including some quotes from Douglas Berman, of the Sentencing Law & Policy blog. The link should be available around noon and I will post it here. [Update] Here is the link to listen to the NPR report.

[Update] Berman himself describes it here as "a thoughtful piece by Wendy Kaufman entitled Ruling on Sentencing Guidelines Creating 'Legal Anarchy."

Posted by Marcia Oddi on Saturday, July 31, 2004
Posted to General Law Related

Indiana Decisions - Indianapolis Star Reports on June 30th Rose Acre Farms Decision

Somewhat surprisingly, the Indianapolis Star this morning carries a story on the decision of the U.S. Court of Appeals for the Federal Circuit to reverse "an award of $6.1 million to Rose Acre Farms in a 14-year legal battle over how much power the government has to regulate a business." Surprising because the ruling was issued a month ago, on June 30th, and reported the next day by the AP. For more, see this July 1 Indiana Law Blog entry, which includes a link to the AP story and to the 37-page ruling itself.

Posted by Marcia Oddi on Saturday, July 31, 2004
Posted to Indiana Decisions

Friday, July 30, 2004

Indiana Courts - U.S. Steel sues citizen group

There are stories today in both the Munster Times and the Gary Post-Tribune reporting that U.S. Steel is suing a Miller citizens group [MCC] for language the group used in its brief. The Times reports:

The dispute revolves around what is being hailed as possibly the largest property tax settlement in Indiana's history. The steel giant has agreed to pay $44 million in back taxes to local government agencies, donate 200 acres of lakefront land to the city of Gary and invest $150 million in its Gary Works plant in the next four years.

The state also agreed to pay Lake County the $8.9 million in property tax replacement credits it would have received had U.S. Steel not withheld its taxes in previous years.

Judge Thomas Fisher of Indiana's Tax Court denied the Miller Citizens' petition to intervene in the U.S. Steel tax settlement. He also scheduled a hearing Oct. 8 for a request by U.S. Steel to assess damages against the group for inappropriate language used in its petition to intervene.

The judge sealed the exact wording of the petition.

"What I said was that since U.S. Steel doesn't pay its business tangible taxes, that leaves a huge void in the budgets of the city of Gary, Calumet Township and Lake County," Reed said.

"They (want to settle now), because they need all the revenue they can get. So they are willing to let go of a huge amount of revenue. I said it is kind of like a drug dealer; you get an addict hooked and he will do anything to get his bag of cocaine. "We are not calling U.S. Steel drug dealers. I'm just saying that is the kind of pressure used."

The Tribune has a lengthy story. Some quotes from the story, headlined "U.S. Steel fires back at tax foes":
U.S. Steel is seeking damages from the citizen group that challenged the companys property tax assessments, claiming it used unbecoming legal language.

Siding with the company, Tax Court Judge Thomas Fisher has denied a motion by the Miller Citizens Corp. to enter the assessment challenge case. Instead, Fisher set Oct. 10 to hear testimony in Crown Point on U.S. Steels argument that it was damaged by the Miller Citizens Corp.s five-page brief, filed July 14, in support of Calumet Township Assessor Booker Blumenbergs battle against the countys past-due tax settlement with the steel maker.

U.S. Steel had challenged the MCC request to file a brief and now has asked for damages under Indiana Appellate Rule 41, citing a tone unbecoming and inappropriate to members of the legal profession in the documents filed by the Gary citizens group. * * *

[Tom Atherton, attorney for U.S. Steel] said U.S. Steel was upset by the tone and content of the brief by the citizens group, which compared U.S. Steel to a drug dealer.

U.S. Steel is sort of in a position of a drug dealer who manages to get the addict hooked and then is able to make the addict do anything it wants the addict to do by dangling a couple of bags of crack cocaine, the brief states.

[Ken Reed, attorney for MCC] said its an apt metaphor for cash-strapped Lake County, which continues to reel from the effects of reassessment. MCC attorneys plan to file a petition today, asking Fisher to re-hear the case.

More from the story:
Members of MCC also have talked openly about challenging the legality of Public Law 1858. Beginning with the 2004 tax bills, the 2003 law will allow U.S. Steel, Ispat Inland, International Steel Group and BP to claim steeper depreciation on their equipment than other industries in Indiana.

Asked if the request for damages was designed to quiet the citizens group, Reed said, I have to be careful what I say but you could draw that conclusion.

The Tribune story goes on to speculate about whether the U.S. Steel effort could be considered a SLAPP suit:
In 1997 the state passed a law limiting lawsuits against citizen groups acting on behalf of the public, called Strategic Lawsuits Against Public Participation, with the lawsuits becoming known as SLAPP suits.

The law was passed after NiSource and the town of Chesterton sought damages from the Hoosier Environmental Council, when the council challenged a zoning change for NiSources Coffee Creek Center.

SLAPP suits are illegal in some states. Indiana law allows citizen groups to file a motion early in the case, asking a judge to rule whether the request for damages is a SLAPP suit, said Tim Maloney, executive director of the Hoosier Environmental Council.

SLAPP suits chill free speech by draining time and money from citizen groups, Maloney said. Even if they win, when you force someone into spending a lot of time and expense to defend themselves, it really accomplishes what a SLAPP suit intended, he said.

Thoughts. First, without U.S. Steel's actions, I sure would never have known what was in the Miller group's petition. A check shows that the AP has now picked up the story, you can read a version here, for instance, in the Kansas City Star.

Second, the case closest to this in my recollection is In re Wilkins, where Attorney Wilkins was initially suspended from the practice of law for one month by the Indiana Supreme Court because of a footnote in a brief. See the earlier Indiana Law Blog entry here. I don't recall that there was ever a question of sealing the brief in Wilkins.

Third, I may be wrong, but I seem to recall from law school that legislators are protected against defamation suits for things said on the floor of the legislature, and that things said in legal filings may be similarly protected.*

Fourth, I can't locate the Indiana Strategic Lawsuits Against Public Participation (SLAPP) statute, but when/if I do, I will post the citation here. [Update] The Indiana statute is IC 34-7-7. The statute was discussed by the Court of Appeals in a 2003 decision - access the Indiana Law Blog entry here.

Fifth, re the quote from the Times story, "U.S. Steel had challenged the MCC request to file a brief and now has asked for damages under Indiana Appellate Rule 41," Rule 41 is "Motion to Appear as Amicus Curiae." Perhaps the reference is to Rule 42, "Motion to Strike," which provides:

Upon motion made by a party within the time to respond to a document, or if there is no response permitted, within thirty (30) days after the service of the document upon it, or at any time upon the courts own motion, the court may order stricken from any document any redundant, immaterial, impertinent, scandalous or other inappropriate matter.
but makes no mention of damages or sealing of the petition.
*In Oregon, at least: "The doctrine of absolute privilege arose from the theory that there are certain circumstances in which the ability to speak freely usually in the context of governmental functions is so important that it outweighs the interest that an individual has in his or her reputation. Absolute privileges attach to statements made in the course of or incident to judicial proceedings, including statements made by witnesses and parties. An absolute privilege also attaches to statements made during quasi-judicial proceedings, such as proceedings before administrative boards, commissions, and disbarment actions. Statements made as part of a legislator's duties are also absolutely privileged, although it should be noted that statements made by a legislator to the press outside the actual legislative meeting place and not during the legislative process are not absolutely privileged."

Posted by Marcia Oddi on Friday, July 30, 2004
Posted to Indiana Courts

Environment - Stories today

Mercury. This story in the Indianapolis Star today is headlined: "Group demands action on pollution: State board, petitioned nearly 2 months ago, has delayed a hearing on mercury regulations." Some quotes:

The Hoosier Environmental Council has asked the state Air Pollution Control Board to require Indiana coal-burning plants to reduce mercury emissions 90 percent by 2008 and has petitioned for a public hearing on the issue.

But almost two months after receiving the petition with enough signatures to legally require a hearing, the pollution board has not acted on the request. Instead, board Chairman John Walker said he'll eventually hold a meeting but wants to wait for a recommendation from a work group of regulators, industry officials and environmentalists -- which has yet to be established.

"It's very frustrating, because in June (the board) agreed that hearings would be a good idea, and now it's basically being placed in limbo," said Brian Wright, coal policy adviser at the Hoosier Environmental Council. "One of our concerns is that they will delay this until industry can run to the legislature and say, 'Don't let them do this.' "

Officials from the Indiana Department of Environmental Management and industry say it's wise to study the issue before moving ahead with public meetings or rules -- and they hope the federal government acts to curb emissions so the state won't have to do it on its own.

The statute allowing citizen proposals is located at IC 13-14-8-5.

Group piers. "Grouping of piers is sought by state" is the headline to this story in the Fort Wayne Gazette. Some quotes:

By proposing a new rule to address group piers, state officials aim to regulate lake funneling, an issue that irritates existing lake residents and plagues plan commissions.

In Steuben County, dubbed Northern Indiana Lakes Country because of the 101 lakes peppering the land, the issue is particularly provocative. And officials there are particularly interested in the rule, which will create a designation for group piers, essentially providing a middle ground between a personal pier and money-making marina.

The rule proposed by the Indiana Department of Natural Resources defines a group pier as any dock that provides space for any of the following: at least five property owners, at least five rental units, an association, a condominium, a subdivision, a conservancy district, a campground, a mobile home park or a yacht club.

The category disqualifies a group pier from inclusion in a general pier license, and a developer seeking to build a group pier would need to apply for a special permit and complete a public hearing process.

Water quality. Two stories today in the Muncie StarPress. "State targets sewage in our streams" is the headline of the first. Some quotes:
The Indiana Department of Environmental Management plans to establish limits on sewage and manure loading in four impaired tributaries of the White River in Delaware, Madison, Hamilton and Tipton counties. The public is invited to a kickoff meeting at 6 p.m. on Aug. 25 at Anderson Public Library.

"You can help us by attending this meeting and becoming involved in the TMDL [Total Maximum Daily Load] process," IDEM's Andrew Pelloso said. At the meeting, the agency will explain TMDLs and how the tributaries are impaired, and ask the public to help the agency learn more about the creeks.

The four contaminated tributaries are Killbuck, Pipe, Stony and Duck creeks. Like the White River, the four tributaries are impaired by E. coli bacteria, which indicates they are contaminated with fecal waste from humans, livestock and wildlife such as geese.

The U.S. Environmental Protection Agency several months ago approved IDEM's proposed TMDL for E. coli bacteria in White River between Muncie and the Marion-Hamilton county line. * * *

Reduction of loads from other sources will require a voluntary approach, [IDEM's Staci Goodwin] said.

Among the best management practices that will be considered are:

- An outreach program to teach homeowners how to recognize and repair or replace failing septic systems.

- Excluding livestock from rivers and streams by fencing.

- Add more vegetation along streams to reduce bank erosion, provide shade and habitat for wildlife, and filter sediment and nutrients such as manure and fertilizer from storm water runoff.

- Build detention basins, infiltration trenches, dry and wet ponds, porous parking lots and wetlands in urban areas. The purpose is to route storm water to holding basins so pollutants can settle out of the water.

The second StarPress story is headlined: "Few impaired rivers have pollution caps." Some quotes:
Indiana ranks 48th in the country in establishing pollution limits for impaired rivers and streams.

The state has identified more than 1,100 impaired rivers and streams, but it has developed Total Maximum Daily Loads (TMDLs) for only 15 of those rivers, according to the U.S. Environmental Protection Agency. * * *

The top three impairments in Indiana rivers and streams are fish contaminated with PCBs and mercury; disease-causing agents such as bacteria and viruses, and the lack of diversity of fish, insects, crayfish, worms, and other animals.

The state has developed a TMDL - a pollution budget or load limit - for White River between Muncie and Noblesville, which is impaired by E. coli bacteria - an indicator of fecal waste from humans, livestock and wildlife. It also has developed or is close to developing TMDLs for 14 other waterways, including the St. Joe River, Kokomo Creek, Trail Creek, Fall Creek, Salt Creek and Lake Michigan.

But Ohio has created 302 TMDLs, Kentucky and Michigan have established 41 TMDLs each, and Illinois has developed 18 TMDLs. Four states - West Virginia, Kansas, Pennsylvania and Georgia - have established more than 1,000 TMDLs each, and 18 other states have created more than 100 TMDLs each, according to EPA's TMDL Web site.

Only two states - Hawaii and Nevada - have fewer TMDLs than Indiana. Hawaii has not identified many impaired waters, and Nevada is a state that has light rainfall and mostly small rivers.

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

Indiana Decisions - Transfer List for Week Ending July 30, 2004

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

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

Indiana Decisons - Six Court of Appeals Decisions Today

Airgas Mid-America, Inc. v. Shannon Long, et al. (7/30/04 IndCtApp) [Procedure]
Sharpnack, Judge

In this interlocutory appeal, Airgas Mid-America, Inc. (Airgas) appeals the trial courts grant of a motion to quash filed by Evansville Welding Supply, LLC (EWS). Airgas raises several issues, which we consolidate and restate as whether the trial court abused its discretion by granting EWSs motion to quash the subpoena duces tecum based upon the accountant-client privilege. We reverse and remand. * * *

Although EWS had the burden of demonstrating why each individual piece of information was privileged, EWS did not assert the privilege on a question-by-question or document-by-document basis. We conclude that EWSs blanket privilege claim was insufficient to meet its burden of demonstrating that the information was privileged under the accountant-client privilege. While some of the information may be protected under the accountant-client privilege, the trial court must make this determination on an individual basis. Consequently, the trial court abused its discretion by granting EWSs motion to quash the subpoena duces tecum. See, e.g., Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 516 (Ind. Ct. App. 1999) (holding that [w]hile the subject of Penn Centrals request is seemingly broad-based, Buchanans blanket invocation of privilege is insufficient to support his assertion that all the requested documents were protected. While some of the requested documents and testimony may have been protected if properly challenged, such a determination must be made on an item specific basis.), rehg denied, trans. denied.

For the foregoing reasons, we reverse the trial courts grant of EWSs motion to quash and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

Theodore Fugett v. State of Indiana (7/30/04 IndCtApp) [Criminal Law & Procedure]

Midtown Chiropractic v. Illinois Farmers Insurance Company (7/30/04 IndCtApp) [Insurance]

Lagarda Security v. Alva Lawalin (7/30/04 IndCtApp) [Worker's Compensation]

Donald E. Geels v. Matt Dunbar, et al. (7/30/04 IndCtApp) [Landlord-Tenant]

James D. Perkins v. State of Indiana (7/30/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge

Following a jury trial, Appellant, James Perkins, was convicted of Operating a Vehicle While Intoxicated Causing Serious Bodily Injury, a Class D felony. * * *

Perkins argues that there was insufficient evidence to prove that he was intoxicated. Specifically, Perkins discounts the mistakes he made during the field sobriety tests and thus asserts that the State presented only minimal evidence as to whether he was impaired. Perkins further asserts that the fact that Detective Williams smelled burnt marijuana established nothing more than a mere suggestion that Perkins may have used marijuana. Perkins then directs our attention to evidence which he asserts proves that he had not been using marijuana on the day of the accident. In all, Perkins arguments amount to nothing more than a request for us to reweigh the evidence and judge the credibility of witnesses, a task we will not undertake upon appeal. The State presented sufficient evidence from which the jury could have concluded beyond a reasonable doubt that Perkins was intoxicated at the time of the accident. The judgment of the trial court is affirmed.
MAY, J., and VAIDIK, J., concur.

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

Indiana Decisions - 7th Circuit Issues En Banc Decision

John Doe v. City of Lafayette (ND Ind., Judge Sharp)

[A 53-page decision, with the voting split 8-3 (Williams, Rovner and Wood dissenting). The dissent begins on p. 32.]

RIPPLE, Circuit Judge. In February of 2000, the City of Lafayette, Indiana, issued John Doe, a convicted sex offender, a letter, informing him that he was banned from all public parks under the Citys jurisdiction. In November of 2000, Mr. Doe initiated this action, alleging that the ban violated his rights under the First and Fourteenth Amendments of the Constitution of the United States. The United States District Court for the Northern District of Indiana granted summary judgment to the City. For the reasons set forth in the following opinion, we now affirm the judgment of the district court. * * *

Conclusion. For the foregoing reasons, we must reject Mr. Does challenges based on the First and Fourteenth Amendments and affirm the judgment of the district court. AFFIRMED.

WILLIAMS, Circuit Judge, with whom ROVNER and DIANE P. WOOD, Circuit Judges, join in dissenting. John Doe was banned for life from all park property in the City of Lafayette, Indianaincluding a golf course, sports stadium, and city pools. As this ban violates Does First Amendment right to freedom of thought by impermissibly punishing him for those thoughts, I respectfully dissent. * * *

Despite our repudiation of the content of his thoughts, the City of Lafayette may not punish Doe for his thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment are virtually meaningless.

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

Indiana Decisions - Federal court (SD Ind) issues reasonable accomodation ruling

Gregory S. Fox v. Lear Corp. (7/28/04 SD Ind.)
United States Magistrate Judge Tim A. Baker

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for their employees when an employees bone fide religious practice conflicts with a job requirement. Plaintiff Gregory S. Fox advised his employer, Defendant Lear Corporation, that his religious beliefs prevented him from working on his Sabbath -- from sundown Saturday to sundown Sunday. Several discussions and an EEOC charge later, Fox and Lear agreed on an accommodation that would allow Fox to work on weekends when required by Lear but avoid Foxs Sabbath. The accommodation worked for awhile, but due to his desire to work overtime, Fox later insisted that Lear not only accommodate him for those weekends when work was mandatory, but also those weekends in which work was voluntary. This lawsuit followed. As set forth below, the bounds of Title VII do not stretch as far as Fox contends. * * *

Conclusion. Defendants motion for summary judgment is granted with respect to all claims. Final judgment shall be entered accordingly. Costs are awarded to the Defendant.

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

Indiana Decisions - Overview of Blakely in the 7th Circuit and in Indiana State Courts, Part I

Part I. Overview of Blakely in the 7th Circuit Courts

Court of Appeals for the 7th Circuit. In U.S. v. Booker (7/9/04), as reported here in the Indiana Law Blog on July 9th, Judge Posner wrote that the federal sentencing guidelines, "though only in cases such as the present one in which they limit defendants right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely. "

Judge Poser concluded:

To summarize: (1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancementsthat is, no factual findings by the judge increasing the sentencethere is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence. REVERSED AND REMANDED.
Booker was to first post-Blakely Court of Appeals decision to hold the guidelines unconstitutional. On July 21, 2004, the Solicitor General filed a Petition for Writ of Certiorari to the United States Supreme Court in this case. However, as Professor Douglas Berman wrote this morning in Sentencing Law & Policy:
With a Supreme Court grant of cert a near certainty, it is tempting to suggest (perhaps even hope) that the sentencing world can take a breather until the High Court decides what Blakely means for the federal guidelines. However, it could be two more months until the Supreme Court even hears argument on a Blakely federal sentencing case, and perhaps at least a few more months before the Supreme Court renders a decision. I doubt that the thousands of federal criminal cases now pending in district and circuit courts can be put completely on hold during this period.

Of course, those circuits which have already weighed in on Blakely have given their district courts interim guidance, although that guidance is sketchy at best everywhere except in the Fifth Circuit where court have been told to continue with business as usual.

Recall that Judge Poser wrote in Booker:
We have expedited our decision in an effort to provide some guidance to the district judges (and our own courts staff), who are faced with an avalanche of motions for resentencing in the light of Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), which has cast a long shadow over the federal sentencing guidelines. We cannot of course provide definitive guidance; only the Court and Congress can do that; our hope is that an early opinion will help speed the issue to a definitive resolution.
The 7th Circuit has issued several sentencing-related opinions since its ruling in Booker. In Simpson v. USA (7/16/04) the panel dismissed "Simpsons application without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review." In USA v. Keller (7/21/04), a downward departure case, neither Blakely nor Booker was mentioned. In USA v. Ward (7/24/04) (4th entry in post), the panel ruled:
Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendants sentence. As Booker holds, the Guideliness contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. Thus, in light of the analysis set forth in Booker, we remand these cases to the district court for resentencing.

The District Courts in the 7th Circuit. So what has been going on in the federal district courts of Wisconsin, Illinois and Indiana, post-Blakely, and post-Booker? There have been few reported cases. Judge Sarah Evans Barker reportedly has issued two bench rulings citing Blakely (see this ILB entry). There may be other unreported bench rulings in the three states.

In U.S. v. Stafford (WD Wis. 7/19/04) Judge Crabb ruled:

Defendant alleges that he was sentenced under the Sentencing Guidelines and that the court enhanced his base offense level on various grounds that were not determined by a jury. Defendant is correct. He was the subject of "a longer sentence than that supported solely on the facts he admitted during his plea colloquy." Simpson v. United States, (7th Cir. July 16, 2004) [see above]. That means that if and when the Supreme Court determines both that Blakely applies to the federal sentencing guidelines and that it has retroactive application to cases on collateral review, he may apply to the Court of Appeals for the Seventh Circuit for leave to file a successive collateral attack. Id. Of course, such an attack would be limited solely to the constitutionality of applying the enhancements to his base offense level. * * * He has no viable claim unless the Supreme Court holds that Blakely has retroactive application.
In U.S. v. Traeger (ND Ill. 7/8/04), Judge Shadur wrote: "Blakely itself did not announce that it was applicable retroactively--and indeed the same-day decision in Schriro v. Summerlin, 2004 U.S. LEXIS 4574, 72 U.S.L.W. 4561 (U.S. June 24, 2004) teaches the strong unlikelihood that Blakely will hereafter be given retroactive effect."

An Illinois paper, the Belleville News-Democrat, reported yesterday:

EAST ST. LOUIS - U.S. District Chief Judge G. Patrick Murphy said Wednesday he won't use federal sentencing guidelines because they are unconstitutional. Murphy barred the guidelines during the trial of Greg "Baby Greg" Murray of Granite City. He is scheduled to go to trial next week on a federal charge of using a handgun during a drug trafficking crime in connection with a homicide.

Murphy's ruling followed decisions by the U.S. Supreme Court and the 7th Circuit Court of Appeals in Chicago that challenged the constitutionality of the sentencing guidelines.

In an indictment filed last week, federal prosecutors alleged Murray's conduct in the crimes could lead to "enhancements" -- punishable by extended prison sentence under the sentencing guidelines for Murray. But Murphy decided the enhancements must be decided by a jury to be in line with the 7th Circuit and Supreme Court rulings.

[Thanks to USSGuide.com for the two district court links. Check its Seventh Circuit page here.]

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

Thursday, July 29, 2004

Law - New Uniform Trust Code Causing Waves

The Wall Street Journal today (paid subscription required), on page D1, has a story headlined "As Trust Laws Get a Makeover, Concerns Arise: As Many States Move to Adopt Uniform Code, Critics Raise Concerns About Privacy Issues." According to the story, the new UTC has been enacted in 10 states since 2002. I checked, Indiana has not enacted the new UTC. The gist of the story (but buy the paper for the complete take): "The code has drawn flak, however, from critics who say it could make trusts less private, causing family squabbles, and possibly create estate-tax liabilities. As a result of such concerns, the law was repealed in Arizona last April, one year after it was enacted."

Sure enough, this July 13th story in the Arizona Republic reports:

Three months ago, for example, Arizona lawmakers repealed a set of laws passed just last year known as the Uniform Trust Code. The code's intent was to fill in gaps on various rules that apply to trusts and make them more similar to those of other states, but it also generated controversy.

One unpopular provision would have required that people who set up or oversee trusts notify beneficiaries that a trust exists and provide a list of assets on request. Critics complained the rule would have made trusts less private.

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

Indiana Decisons - Three Today from 7th Circuit

Matheney, Alan L. v. Anderson, Rondle (ND Ind., Judge Sharp)

Before BAUER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. * * * Because we agree with the state courts finding that Matheney was competent to stand trial, it follows that the state courts did not err in concluding that Matheneys trial attorneys provided effective assistance. The post-conviction trial court and the Indiana Supreme Court did not unreasonably apply Strickland, or unreasonably determine the facts surrounding Matheneys representation before his original trial. Thus, even if we were to assume that the trial attorneys performance was deficient in not demanding a contemporaneous competency examination and hearing, Matheneys ineffective assistance claim would fail on the prejudice prong.

III. Conclusion. For the foregoing reasons, the district courts denial of Matheneys petition for habeas corpus relief under 2254 is AFFIRMED.

ROVNER, Circuit Judge, dissenting. When Matheney was initially brought to trial for this crime, his lawyers sought a determination of his sanity and his competency. The court, however, ordered only a determination of his sanity, and none of the trial attorneys in the case appeared to even notice. In fact, examination of the record in this case reveals repeated instances in which attorneys and judges involved in that trial and his subsequent appeals blur the two, as if the determination that he was not legally insane at the time of the offense somehow also established that he was competent to stand trial. * * * Matheney has met the Strickland standard, demonstrating a reasonable probability that the result would have been different if his attorneys had pursued the competency issue, and accordingly I disagree with the majoritys conclusion that the prejudice prong of Strickland was not met. Therefore, I respectfully dissent.

Asher, Brian v. Baxter Int'l Inc. (ND Ill.)

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. Baxter International, a manufacturer of medical products, released its secondquarter financial results for 2002 on July 18 of that year. Sales and profits did not match analysts expectations. Shares swiftly fell from $43 to $32. This litigation followed; plaintiffs contend that the $43 price was the result of materially misleading projections on November 5, 2001, projections that Baxter reiterated until the bad news came out on July 18, 2002. Plaintiffs want to represent a class of all investors * * *. class action, but see Fed. R. Civ. P. 23(c)(1)(A), the district court dismissed the complaint for failure to state a claim on which relief may be granted. 2003 U.S. Dist. LEXIS 12905 (N.D. Ill. July 17, 2003). The court did not doubt that the allegations ordinarily would defeat a motion under Fed. R. Civ. P. 12(b)(6). Still, it held, Baxters forecasts come within the safe harbor created by the Private Securities Litigation Reform Act of 1995, 15 U.S.C. 77z-2(c), 78u-5(c). The PSLRA creates rules that judges must enforce at the outset of the litigation; plaintiffs do not question the statutes application before discovery but do dispute the district courts substantive decision. * * *
Laborers' Pension v. RES Envir Services (ND Ill.)
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
FLAUM, Chief Judge. This appeal calls upon us to apply the familiar principle that conclusory and immaterial statements contained in an affidavit are insufficient to bar summary judgment. Defendant RES Environmental Services, Inc. (RES), relying exclusively on an affidavit submitted by its company owner, seeks reversal of the district courts decision granting summary judgment to Plaintiffs, Laborers Pension Fund and Laborers Welfare Fund of the Health and Welfare Department of the Construction and General Laborers District Council of Chicago and Vicinity (the Funds). The Funds brought this action against RES pursuant to [ERISA and LMRA] seeking to collect delinquent employee benefit contributions required under a collective bargaining agreement negotiated between RES and its employees union. For the reasons stated in this opinion, we AFFIRM the judgment of the district court.

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

Indiana Decisions - Two stories today

"Court rejects banning people from parks" is the headline to this AP story that begins:

State law does not authorize police to put people on a trespass list or ban them from a public park, the Indiana Court of Appeals ruled yesterday. The court said a Kokomo officer overstepped his authority when he saw Stephen L. Travis sitting on a city park bench in September 2002 and arrested him for allegedly trespassing.

Another officer, Greg Baldini, had encountered Travis and others gambling in the park two days earlier and had told him not to come back or he would be arrested for trespassing. During the trial, Baldini could not say precisely what authority he had to place a citizen on a trespass list for a public park. "I just know we can do it," he said.

The decision, Stephen L. Travis v. State of Indiana (7/28/04 IndCtApp), was summarized in this entry yesterday.

"Appeals court upholds sentence of man who killed a state legislator" is the headline to another AP story about a decision issued Wednesday. Some quotes:

The Indiana Court of Appeals has upheld a 23-year prison sentence imposed on a drunken driver who caused a crash that killed a state legislator.

The ruling, issued yesterday, said that Alan Wickliff, of Shelbyville, had an extensive criminal history and that the judge who sentenced him properly weighed aggravating and mitigating circumstances. * * *

Wickliff pleaded guilty in Johnson County Superior Court without any sentencing agreement with prosecutors.

Judge Cynthia Emkes sentenced him to 20 years for causing a death while driving drunk a crime aggravated by Wickliff's 1999 misdemeanor drunken-driving conviction. He also was sentenced to three years on each of two marijuana-possession charges. * * * Wickliff appealed, saying the sentence was inappropriate, but the appeals court disagreed.

I have obtained a copy of this unpublished opinion, Wickliff v. State (7/28/04 IndiCtApp) and will post it here shortly.

[Update] Here is the Court of Appeals opinion in Wickliff.

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

Environment - IDEM Copying Charges

Remember the entry Monday quoting from a story about IDEM charging $1.00 per page for copies? I checked with IDEM this morning to see if that report was correct. Amy Hartsock, Public Information Officer, responded promptly:

No, it's $.10 per page (10 cents) - when files are big, as it appears this facility's files are, we advise citizens to come in and look thru them, and mark the sections they want to copy, which helps make sure they pay only for what they really need. We don't charge for 10 copies or less.
Thanks for checking.

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

Wednesday, July 28, 2004

Law - This Blog's First, and Last, Post in Kobe Bryant Case

This is just too incredible to pass by. The AP is reporting this evening, in a story headlined "Sealed Bryant Filing Mistakenly Posted," that:

The order, which included the accuser's name, appeared on a Web site where public filings are posted as a convenience to court staff and the media. The Web site was shut down for about three hours to remove the document.

The accidental posting was the latest in a string of mistakes that the accuser's attorney, John Clune, has said prompted her to consider ending her participation in the case. * * *

In September, the accuser's name was included in another filing posted on the Web site.

Last fall, the Glenwood Springs hospital where she and Bryant were examined accidentally turned over her medical records to lawyers in the case.

In late June, a court reporter accidentally e-mailed to The Associated Press and six other media groups transcripts of a closed-door hearing that dealt with aspects of the accuser's sex life and money she received from a state victims' compensation fund.

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

Environment - Two stories today

Wetlands. An interesting story today about Ritchey Woods, the newly obtained nature preserve given to the town of Fishers by The Children's Museum of Indianapolis. The story reports that a developer's proposal "to disturb the natural area" is already in play. More:

"I don't believe it's resolved yet," [Fishers Parks Director Gary Pruitt] said Tuesday, referring to wetlands mitigation projects proposed by Precedent Residential Development and approved by museum officials before the transfer of property. "It's a complex issue. We want to do the right thing for the property. I think it's a win-win, but we don't want to move too fast."

The proposals by Precedent, which has permit applications pending with the Indiana Department of Environmental Management, are to create or enhance wetlands on Ritchey Woods property that spreads southwest from 106th Street and Hague Road.

Precedent had suggested the projects as a way to compensate for the developer's authorized elimination of small wetlands in two of its subdivisions -- Slater Farms in Noblesville and Fox Hollow near McCordsville. Such mitigation is required by state law, which also dictates that the replacement projects be 2.5 times as large as the lost wetlands.

Pruitt is not opposed to the idea of wetlands restoration, which has been a focus of research and reclamation efforts in Ritchey Woods by the Center for Earth and Environmental Science at Indiana University-Purdue University Indianapolis. He does have concerns about Precedent's chosen sites inside the 130-acre parcel.

"During this transition of property, I have learned that some of these sites may not be good," explained Pruitt, who has talked with Precedent's consultant, the director of IUPUI's Center for Earth and Environmental Science and other experts. "Therein lies the challenge."

Specifically, Precedent proposes a "scrub-shrub/forested wetland" on 3 acres along Hague Road that had been farmed. Existing field drainage tile would be disabled to facilitate forming a wetland.

"The constructed wetland will provide additional forested wetland area to observe wildlife and educate youth," say the application papers filed in May with IDEM by Precedent Vice President Doug Wagner. "The wetland mitigation area is located in a region in which the public will be able to . . . learn about wetland functions and benefits."

State environmental officials accompanied Precedent's consultant on a tour of the proposed mitigation sites this month.

"IDEM has significant concerns about both proposed mitigation sites due to hydrology limitations for additional wetland creation and existing easements which stipulate land use practices," said IDEM spokeswoman Bonnie Nash.

The conservation easement signed by Town Council President Scott Faultless to obtain the property essentially guarantees that the natural state of the land will not be disturbed in a way that diminishes its use as a protected nature preserve.

Superfund. Getting your town's property listed as a Superfund site may not be a good thing, particularly if you are expecting federal funds to come rolling in, according to this story today in the Washington Post. A quote:
A slew of new Superfund waste sites, coupled with such needs as funding emergency responders to terrorist attacks, has drained federal resources in the past few years. As a result, officials in a number of states, including Illinois and Texas, are putting cleanup plans on hold, to the dismay of some local residents. * * *

Part of the problem stems from the fact that two taxes that contributed to the Superfund trust fund -- one on crude oil and certain chemicals, another one on larger corporations -- expired in 1995 and have not been renewed. As a result, all the money for cleanups this fiscal year has come from funds appropriated by Congress, instead of from the trust fund. The EPA has asked for $150 million in cleanup funds for the past two years but received just $23 million last year. Superfund's current budget is lower than at any time since 1988.

Posted by Marcia Oddi on Wednesday, July 28, 2004
Posted to Environmental Issues

Indiana Decisions - One Court of Appeals Opinion Today

Stephen L. Travis v. State of Indiana (7/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

Stephen L. Travis appeals his conviction for Criminal Trespass, a Class A misdemeanor, following a bench trial, and challenges the sufficiency of the evidence to sustain his conviction. We reverse. * * *

In sum, Officer Baldini acted within his authority on September 2 when he told Travis to leave the park because he was gambling. See I.C. 36-8-3-6(c)(3) (authorizes police officers to enforce municipal ordinances); see also Municipal Code of the City of Kokomo, Section 96.19(K). Had Travis refused to leave the park at that time, the officer could have arrested him for criminal trespass. See Ind. Code 35-43-2-2(a)(2) (stating person who, not having contractual interest in property, knowingly or intentionally refuses to leave the real property of another after having been asked to leave by other persons agent commits trespass). But because Kokomo police officers lack authority to place citizens on a trespass list or to ban citizens from the park indefinitely, Travis legally entered the park on September 4. And the undisputed facts show that when Officer Fourkiller encountered Travis that day, Travis was sitting on a park bench and was not engaged in any illegal activity. Absent some illegal act on Travis part, Officer Fourkiller had no legal grounds to arrest him. We conclude that the State failed to prove beyond a reasonable doubt that Travis entered the park after having been denied entry by the park or its agent, which is an essential element of criminal trespass. We can affirm a conviction only when each material element is supported by evidence from which the trier of fact could have found guilt beyond reasonable doubt. See Culbertson, 792 N.E.2d at 576. There was no factual or legal basis for Travis arrest. Therefore, we must reverse the conviction. Reversed.
KIRSCH, C.J., and RILEY, J., concur.

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

Indiana Decisions - Three Today from 7th Circuit

Housing Authority Ri v. Chicago Housing (ND Ill.)

Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Defending oneself from a largescale class action lawsuit is a costly task. And so it comes as no surprise that these two parties are before us to determine who should foot the bill for the defense of a 1999 lawsuit filed by approximately 10,000 current or former Chicago Housing Authority (CHA) residents who claimed they have been exposed to and harmed by environmental contaminants while living on CHAs public housing property. * * *

Because the district court issued a thorough and wellreasoned memorandum opinion and order, we adopt the reasoning of the district courts September 30, 2003 Memorandum Opinion and Order addressing those claims challenged on appeal and AFFIRM the judgment of the district court. A copy of the district courts order is attached.

Ward, Jerry v. Hinsley, Charles (ND Ill.)
Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
FLAUM, Chief Judge. Petitioner-appellant Jerry Ward appeals from a judgment of the United States District Court for the Northern District of Illinois denying his petition for a writ of habeas corpus brought under 28 U.S.C. 2254. His appeal presents the question of whether a federal habeas court may review procedurally defaulted claims of alleged structural errors when the petitioner has not argued that the procedural default is excused by cause and prejudice or that a fundamental miscarriage of justice will result if the claims are not addressed. We hold that a federal habeas court may not review such claims, and therefore we affirm the district courts denial of Wards petition for a writ of habeas corpus.
USA v. Jackson, Keenan L. (CD Ill.)
Before EASTERBROOK, RIPPLE, and DIANE P. WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Police in Springfield, Illinois, stopped Keenan Jackson for a traffic offense. He was not carrying a drivers license. After a check of identifying details via the computer terminal in the squad car implied that the driver might not be who he claimed, Officer Sapetti decided to detain Jackson until his identity could be established. Sapetti handcuffed Jackson and, before seating him in the police car, patted him down for weapons; he found a hard item in Jacksons crotch. The object turned out to be more than 50 grams of crack cocaine, and Jackson was indicted for a violation of 21 U.S.C. 841. After the district court denied his motion to suppress this evidence, Jackson entered a conditional guilty plea that preserved his right to appeal the question whether Officer Sapetti violated the fourth amendment. * * * Affirmed.

RIPPLE, Circuit Judge, dissenting. The key question in this case is the type of detention to which Mr. Jackson was subject while waiting for Officer Sapetti to investigate his identity. As noted by the majority, the subjective intent of both partiesOfficer Sapetti and Mr. Jacksonare irrelevant to the inquiry: The justification for the stop, as well as the nature of the resulting detention, both are governed by an objective standard. * * *

The question, therefore, is whether it was immediately apparent to Officer Sapetti that the object located on Mr. Jackson was contraband. Stated another way, was Officer Sapetti acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in [Mr. Jacksons pants] was contraband. Dickerson, 508 U.S. at 377.

The district court did not reach this question. * * * Because this issue is one that is best addressed by the district court in the first instance, I would remand the case to the district court to determine whether Officer Sapettis actions were consistent with Terry and its progeny. For these reasons, I respectfully dissent.

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

Indiana Courts - Judge Kouros' replacement

The Munster Times reports today:

The Indiana Supreme Court appointed Senior Judge Thomas Webber Sr. on Tuesday to fill the Lake Criminal Court seat vacated by Judge Joan Kouros.

Webber will take the bench Monday and will remain indefinitely, according to the appointment order signed by acting Chief Justice Brent Dickson.

The Supreme Court suspended Kouros on Thursday after the Indiana Commission on Judicial Qualifications filed a recommendation for her removal for not keeping up with paperwork in her court despite her promise to do so.

Posted by Marcia Oddi on Wednesday, July 28, 2004
Posted to Indiana Courts

Tuesday, July 27, 2004

Indiana Decisions - More on Judge Barker Rulings in First Amendment / Adult Video Store Case

We reported earlier today (third item) on this story in the Courier Journal:

A federal judge has cleared the way for legal action to continue in both federal and state courts in a dispute between the city of New Albany and the operator of an adult video and novelty store.
Federal Judge Sarah Evans Barker's (SD Ind.) 7/22/04 rulings are now available, here ("For the above reasons, this court lacks subject matter jurisdiction over the Citys state court action seeking declaratory and injunctive relief of its own regulations and ordinances, despite possible objections to their constitutionality. Under 28 U.S.C. 1447(c), we GRANT the Citys Motion to Remand and remand this action to state court. We also DENY the Citys Motion for Attorney Fees.") and and here ("For the above reasons, we DENY Defendants Motion to Dismiss on the basis of the Younger abstention doctrine.").

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

Indiana Decisions - Nine New Court of Appeals Posting Today

Citizens Action Coalition of Indiana, et al. v. NIPSCO and Indiana Office of Utility Consumer Counselor (7/27/04 IndCtApp) [ ]
Baker, Judge

Appellants-intervenors Citizens Action Coalition of Indiana, Inc. (CAC) appeals an order from the Indiana Utility Regulatory Commission (IURC) awarding $1,105,857.80 in attorney fees, costs, and expenses to the Northern Indiana Public Service Company Industrial Group (Industrials)a consortium of industrial electricity customers of the Northern Indiana Public Service Company (NIPSCO)earned by the Industrials for participating in an investigation by the IURC. Specifically, CAC claims that the IURCs order does not meet the criteria established by Indiana courts with respect to payment of attorney fees from a common fund. Additionally, CAC argues that even if a common fund exists from which to award attorney fees, the IURC unlawfully limited eligibility of attorney fees to signatories of a settlement reached in the IURC investigation. Finally, CAC contends that the IURC erroneously denied its request to conduct discovery with respect to the negotiations that resulted in the fee provisions of the settlement. Concluding that the funds in the escrow account comprise a common fund, that CACs argument with respect to attorney fees from the fund for non-signatories to the agreement is not ripe for review, and that the IURC did not err when it denied CACs discovery requests, we affirm the IURCs order. * * *

In light of the issues addressed, we conclude that the funds in the escrow account constitute a common fund, that CACs argument with respect to attorney fees from the fund is not ripe for review, and that the IURC did not err when it denied CACs discovery requests. The IURCs order is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Robert Dost v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]

"Based upon the foregoing authorities and analysis, we conclude that the search warrant issued for the purpose of searching Dosts residence is valid and fulfills the requirements of the Fourth Amendment."

Amy Smith v. Julie & Scott Archer (7/27/04 IndCtApp) [Insurance]
Barnes, Judge

Amy Smith appeals the trial courts imposition of sanctions for purportedly violating the Alternative Dispute Resolution (ADR) rules in connection with a court-ordered mediation session. We reverse.

The sole issue is whether the trial court abused its discretion in imposing sanctions. * * *

In sum, although a court may impose sanctions for violating an ADR rule, in this case the decision to do so was clearly against the logic and effect of the facts and circumstances before the court because there is no indication of intentional misconduct by Smith or her attorney or prejudice to the Archers or the mediation process. Therefore, the order imposing sanctions against Smith was an abuse of discretion. * * * Reversed.
CRONE, J., and BAKER, J., concur.

Jeffrey Gregg, et al. v. Jeffrey & Brenda Cooper (7/27/04 IndCtApp) [Insurance]
Sharpnack, Judge
Here, it is undisputed that Gregg was moving bales of hay from Bruins property to Greggs nearby property to feed his own cattle. Although Gregg was using Simpsons tractor to move the bales and Simpson could have stopped Gregg from using the tractor, the movement of the bales was not related to Simpsons farming operations. Despite Gregg and Simpsons arrangement to trade Greggs labor for the use of Simpsons equipment, no evidence was designated to demonstrate that Gregg was acting within the scope of his employment with Simpson or acting to further Simpsons business at the time of the accident. Rather, Gregg was acting on his own initiative and for the benefit of himself. There were no genuine issues of material fact, and Simpson was entitled to judgment as a matter of law. Thus, the trial court erred by denying Simpsons motion for summary judgment. See, e.g., Shelby, 533 N.E.2d at 1298 (affirming the trial courts grant of summary judgment where the employees action, if intentional, was done on his own initiative and not in service of the employer and, thus, the employer could not be held liable on a respondeat superior theory).

For the foregoing reasons, we reverse the trial courts declaratory judgment in favor of the Coopers on Simpsons policy with United Farm, the trial courts denial of the motion to correct error, and the trial courts denial of Simpsons motion for summary judgment, and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

Carl Richard v. Carmen Richard (7/27/04 IndCtApp) [Family Law]
Riley, Judge
Appellant-Petitioner, Carl A. Richard (Carl), appeals the trial courts determination that he is the biological father of a daughter, C.R.R. We affirm. * * *

Despite Carls contentions, we find nothing in Charles testimony that constitutes the direct, clear, and convincing proof necessary to overcome the statutory presumption that Carl is the biological father of C.R.R. Thus, in the same vein that our supreme court has held that a putative father cannot overcome the presumption by merely denying he had relations with his wife, we hold that Carl cannot overcome the statutory presumption of paternity by merely presenting testimony of his identical twin brother that the child is probably his and he is willing to pay child support. As a result, we hold that the trial court committed no error in determining that Carl is the biological father of C.R.R.

Based on the foregoing, we conclude that the trial court did not err in determining that Carl failed to rebut the statutory presumption that he is the biological father of C.R.R. Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.

Michael Sabo v. Anne Marie Sabo (7/27/04 IndCtApp) [Family Law; Constitutional Law]
Bailey, Judge
[Husband] appeals the trial courts judgment dissolving his marriage to [Wife]. We affirm in part and reverse and remand in part.

Issue. *** [W]hether the trial court erred by conducting the final hearing without allowing Husband the due process opportunity to defend himself either in person, by counsel, or telephonically, in violation of Article I, Section 12 of the Indiana Constitution. * * *

[T]he trial court knew that Overtoni.e., the one responsible for setting up the telephonic conferencehad withdrawn and that the Westville Correctional Facility did not set up the conference. As such, Husbandthrough no fault of his ownwas denied his right to defend himself in the final dissolution hearing in person, by counsel, or telephonically. Accordingly, the trial court erred by conducting the civil hearing with Husband in absentia, without providing Husband a means by which to defend himself in the civil action. See, e.g., Murfitt, 809 N.E.2d at 334 (holding that the incarcerated defendant was not afforded the opportunity to protect his own interests in the divorce proceedings because he was unable to present his claim of defense in person, telephonically, by counsel, or through documentary evidence).

For the foregoing reasons, we affirm the trial courts denial of Husbands motion for appointment of counsel without making the requisite determinations, but reverse the trial courts order because the trial court conducted the final hearing without allowing Husband a means to defend himself. We remand to the trial court for proceedings consistent with this opinion. Affirmed in part and reversed and remanded in part.
BAKER, J., and FRIEDLANDER, J., concur.

Ernest L. Jones v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge
Ernest Jones appeals his conviction for nonsupport of a dependent child as a Class C felony and the sentence imposed thereon. We affirm but remand. * * *

Jones conviction does not violate double jeopardy principles. We affirm Jones conviction for nonpayment of child support but remand for the trial court to recalculate the amount of arrearage taking into account the order of abatement. We affirm the sentence because the amount of the arrearage is many times more than the statutory minimum even with the reduction due to the abatement. We affirm but remand for a recalculation. Affirmed but remanded.
CRONE, J., and BAKER, J., concur.

Johnathon Exum v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Johnathan Exum appeals his conviction for Murder, a felony, challenging the trial courts application of the felony murder rule, set forth in Indiana Code section 35-42-1-1. Specifically, Exum argues that the death of Lawrence Duff, a co-perpetrator who participated in an attempted robbery, was not reasonably foreseeable to him, and that certain jury instructions were misleading, confusing, and incorrect statements of the law. Finding that Exum reasonably should have foreseen that the commission of Attempted Robbery, a class B Felony, would create a situation which would expose another to the danger of death, and, thus, he was a mediate or immediate cause of the death within the meaning of the felony murder statute, and that the jury instructions were not misleading, confusing, or incorrect statements of the law, we affirm. * * *

In light of our discussion of the issues set forth above, we conclude that (1) the death of Duff was reasonably foreseeable to Exum; (2) Exum contributed to that death; and (3) jury instructions number 38 and 39 were neither misleading, confusing, or misstatements of the law, nor did they prejudice Exums substantial rights. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Liberty Insurance Corporation and Liberty Mutual Insurance Group v. Ferguson Steel Company, Inc. (6/27/04 IndCtApp) [Insurance]
Barnes, Judge
Liberty Insurance (Liberty) appeals the trial courts entry of summary judgment in favor of Ferguson Steel Company (Ferguson). We reverse and remand.

Issue. The issue before us is whether the trial court properly granted summary judgment in favor of Ferguson on the basis that Ferguson was an additional insured under Libertys policy on January 6, 2000. * * *

The question for the trial court was not whether there was an enforceable contract between Ferguson and Steel Frame on January 6, 2000, but whether there was an enforceable contract between Ferguson and Liberty with respect to coverage on that date. We conclude, based upon the undisputed material facts and the application of unambiguous policy language, that there was not. Therefore, the trial court erroneously entered summary judgment in favor of Ferguson. With respect to Liberty, based upon identical undisputed evidence, lack of a genuine issue of material fact in the case, and the clear and unambiguous language of the policy, the trial court erroneously denied Libertys motion for summary judgment. * * *

Reversed and remanded.
CRONE, J., and BAKER, J., concur.

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

Indiana Decisions - Three Tax Court Opinions Posted Today

U.S. Steel Corporation f/k/a U.S. Steel, LLC v. Lake County Property Tax Assessment Board of Appeals, et al. (7/26/04 IndTaxCT - Not for Publication) [Property tax]
Fisher, Judge

The Petitioner, United States Steel Corporation f/k/a United States Steel, LLC (US Steel), has appealed the final determination of the Indiana Board of Tax Review (Indiana Board) valuing its personal property for the 2000 tax year. The matter is currently before the Court on several motions regarding a settlement agreement. * * *

For the foregoing reasons, this Court now orders, pursuant to Indiana Trial Rule 21, that the Assessor be dropped as a party to this case. The Assessors motion is therefore rendered moot. Nevertheless, to the extent that this Court refrains from approving or rejecting the specific terms of the Agreement, the PTABOAs motion is DENIED. Rather, should the remaining parties to the action choose to pursue their settlement, they must file a joint stipulation of dismissal of the action with the Court. Otherwise, the matter will proceed on its merits.

The Munster Times reports on this decision today in a story headlined "Ruling revives U.S. steel deal: Court rules Cal Township's Blumenberg not 'indispensable' to historic tax settlement."

[Update 7/28/04] The Times reports today: "Calumet Township Assessor Booker Blumenberg will appeal a ruling by Tax Court Judge Thomas Fisher that would allow the $52 million U.S. Steel settlement to move forward." Access the story here.

Logan Center Holding Corporation v. Department of Local Government Finance (7/26/04 IndTaxCT - Not for Publication) [Property tax]

"The issue to be decided by this Court is whether Logans improvements are entitled to additional obsolescence depreciation."

Keag Family Limited Partnership v. Indiana Board of Tax Review, et al. (7/26/04 IndTaxCT - Not for Publication) [Property tax]

"The matter is currently before the Court on Keags motion to extend the deadline for filing the Certified Administrative Record (Record) as well as the Respondents motion to dismiss."

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

Law - Michigan high school sports schedules favor boys

How Appealing has a link to a 6th Circuit ruling today that "holds that high school sports seasons have been scheduled in a manner that discriminates against female athletes on the basis of gender," and also points a narrower 2nd Circuit ruling (soccer only, and limited to two school districts). Some quotes from the ruling:

Communities for Equityan organization of parents and high school athletes that advocates on behalf of Title IX compliance and gender equity in athletics and the individual plaintiffs (collectively, CFE) brought a class action lawsuit against the Michigan High School Athletic Association (MHSAA), arguing that MHSAAs scheduling of high school sports seasons in Michigan discriminated against female athletes on the basis of gender. The district court concluded that MHSAAs actions violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX of the Educational Amendments of 1972, and Michigans Elliott-Larsen Civil Rights Act. For the reasons set forth below, we AFFIRM the judgment of the district court with regard to the plaintiffs Equal Protection claim, thus finding no need to reach the Title IX and state-law issues.

At issue in this case is whether MHSAAs scheduling of athletic seasons and tournaments for six girls sportsbasketball, volleyball, soccer, Lower Peninsula golf, Lower Peninsula swimming and diving, and tennis violates the law. With the exception of golf, all of these sports are scheduled during the nontraditional season (meaning a season of the year that differs from when the sport is typically played). Cmtys. for Equity v. Michigan High Sch. Athletic Assn., 178 F. Supp. 2d 805, 807 (W.D. Mich. 2001). Although Lower Peninsula girls golf is played in the springthe traditional season for golfthe fall season, when the boys play, is more advantageous. Id. No boys sports are scheduled in nonadvantageous seasons. Id. at 838.

Girls have historically played in the less advantageous seasons because of the way that high school athletics developed in Michigan. MHSAAs executive director, John Roberts, explained in a 1990 article titled Sports and Their Seasons, published in MHSAAs Bulletin, that [b]oys sports were in [MHSAA member] schools first and girls sports, which came later, were fitted around the pre-existing boys program. Id. at 815.

In its findings of fact, the district court painstakingly discussed each sport at issue and analyzed why play in the nontraditional season (or, in the case of golf, in the traditional season) harmed female athletes. Id. at 817-36. Among the harms found by the district court are the following: * * *

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

Indiana Decisions - Transfer List for Week Ending July 23, 2004

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

[Update] Correction.

Posted by Marcia Oddi on Tuesday, July 27, 2004
Posted to Indiana Transfer Lists

Indiana Courts - Stories Today

There are a number of interesting stories from local, state and federal Indiana courts (and an Illinois court) today:

Zoning. "Judge voids towns zoning code" is the headline to this story in the Gary Post Tribune. Some quotes:

NEW CHICAGO The towns entire zoning code, which in theory kept tattoo parlors from opening next to schools and strip clubs from popping up next to homes, has been thrown out by a Lake County judge.

Lake Superior Judge William Davis declared New Chicagos zoning ordinances null and void after finding that the town neither had, nor can prove it had a viable zoning system which complied with the requirements of Indiana state law. * * *

In his lawsuit, [Crown Point attorney Thomas Parry] claimed the towns definition of a building was vague, its setback rules arbitrary and that the town had no description of its street lines, other than that they are where the pavement is.

Further, without a zoning map, Parry said, the town had no way of knowing whether his clients lived in an area zoned for residential or commercial use, or what zoning should be applied. Judge Davis agreed.

[Town Attorney Kenneth Elwood] is recommending that the Town Council appeal the judges ruling. The town is not required to have zoning, he said. If the council authorizes an appeal, Elwood said he will ask for a stay order that allows the town to continue operating with its existing zoning codes.

Parry suggested that town officials look on the bright side of their defeat in court. At least we knocked out the zoning before something really bad came in, he said.

DNA Requirement The Trib also reports today on the Indiana Court of Appeals opinion -- Randal Balding v. State of Indiana (7/22/04 IndCtApp), reported here by the ILB last week. Some quotes:
The Indiana Court of Appeals upheld a Lake Superior Court decision requiring a man who was convicted of sexual battery to submit a DNA sample to be included in the state DNA database. * * *

The state appellate court disagreed, noting that state law requires individuals convicted of certain felonies including sexual battery to provide a DNA sample for testing and inclusion in the database so long as it does not pose an unreasonable health risk.

Though Balding was not ordered to submit the DNA sample until after his probation revocation, state law enacted in 1996 did require Balding to submit the sample.

The states delay in requesting a sample until after the probation revocation did not make the requirement to submit a sample a new term of Baldings sentence, the court found.

The appeals court also found that Baldings reasonable expectation of privacy was greatly reduced because he was a convicted offender ordered to serve the suspended portion of his sentence because he violated probation. In addition, the DNA sample is collected in a minimally invasive, pain-free way.

Adult video and novelty store/First amendment. This story in the Louisville Courier Journal reports:
A federal judge has cleared the way for legal action to continue in both federal and state courts in a dispute between the city of New Albany and the operator of an adult video and novelty store.

Judge Sarah Evans Barker said the city's actions against New Albany DVD, which was shut down in February, could be viewed as "bad faith prosecution" and a possible violation of store operator Danny Embry's First Amendment rights.

Statute of limitations on childhood sexual abuse allegations. The Chicago Tribune reports today, in a story headlined "Church to fight new law's time limit: Retroactive clause unfair, officials say," that:
The Catholic Archdiocese of Chicago plans to argue in court Tuesday that the state's recently extended statute of limitations on childhood sexual abuse allegations should not apply to suits filed before the law was changed.

The tactic has infuriated abuse survivors who feel the archdiocese has betrayed victims of sexual abuse by withdrawing its outspoken support of the law and invoking statutes of limitations to avoid liability.

Posted by Marcia Oddi on Tuesday, July 27, 2004
Posted to Indiana Courts

Indiana Courts - Public defender standoff in Marion County

The Indianapolis Star reports today on the public defender standoff in Marion County. Some quotes:

Marion County judges appointed private attorneys to represent 42 children in juvenile court on Monday, exacerbating the county's financial troubles that led the public defender's office to stop accepting new cases last week.

Each private attorney will bill the county $90 an hour. That's a lot more than newly hired public defenders in juvenile court earn. They make $33,094 a year, or about $16 an hour, plus benefits.

"This is another example of the creation of a crisis and the failure to provide leadership," Juvenile Court Judge James Payne said. "We in the court are left to figure out how to create a system in a matter of days."

Citing oppressive caseloads in the juvenile court, the public defender's office stopped accepting new clients Friday, forcing judges then to appoint private attorneys to 17 youths accused of crimes.

Local judges are preparing paperwork that would effectively require the county to pay for new public defenders if local leaders can't come up with the answers.

Meanwhile, the Boston Globe reported here on June 29th, in a story headlined "Suit seeks pay raise for public defenders: Ability of indigent to get aid seen at risk":
A sweeping lawsuit filed yesterday with the state's highest court says that Massachusetts, a pioneer in guaranteeing legal counsel to poor criminal defendants, is reneging on that promise as private lawyers refuse to take court-appointed cases because of paltry pay rates.

The lawsuit against the state, which was brought by a law firm that has filed similar complaints elsewhere in the nation, says the number of private lawyers who take such cases has fallen by more than 200 in the past five years, largely because Massachusetts pays the attorneys only $30 an hour in most cases, the lowest statutory rate in the country.

As a result, the suit said, children and poor people are struggling to obtain lawyers in criminal and civil cases, and the system "teeters on the brink of collapse." The suit, which seeks certification as a class action on behalf of children and poor litigants, asks the Supreme Judicial Court to appoint a special master to study the system statewide. * * *

"Our view is that there's a systemic failure, and we're asking the court for systemic relief," said Joshua C. Krumholz, a lawyer with Holland & Knight. "It's at the point of crisis." His firm has been involved in similar suits in other states that led to higher pay for some court-appointed lawyers, including in Florida, Mississippi, Alabama.

The Mississippi lawsuit was the subject of two Indiana Law Blog entries in 2003. Although the links to the newspaper stories may no longer work, the quotes provide the gist. See this entry from Arpil 16, 2003 and this one from May 7, 2003 (the final item).

Arnold & Porter was the firm involved in the Mississippi suit. Here is a well-worth-reading article on their site, reprinted form The American Lawyer. Here are a few quotes from the story:

No outraged protesters gather at the Supreme Court on Gideon's anniversary; fanatics don't post Internet hit lists of "providers" of legal services; and federal judges aren't overseeing sweeping implementation plans for indigent defense programs in recalcitrant states. In fact, to this day the Court has offered remarkably little guidance on how the states should organize representation of the poor.

Predictably, that has led to a patchwork system among the states. There are three basic ways that states provide indigent defense services: appointing private lawyers; bidding out for contract lawyers; and maintaining full-time public defenders. A study released in 2000 by the U.S. Department of Justice's Bureau of Justice Statistics showed that 27 states fund all or most of their indigent defense programs. Twenty-two others are funded primarily at the county level or through a mix of state and county funds (Alabama uses court fees to fund a county-based system. See "Defense Systems.")

The burden of defending indigent cases is huge. The 2000 bureau study, for example, conservatively estimated that, in 1999, public defense lawyers in the nation's 100 most populous counties handled about 4.2 million cases. Nationwide, the bureau estimates that about 80 percent of all criminal defendants in state court are indigent. That means that of the roughly 1.2 million people tried on felony charges last year in state court, more than 900,000 were represented by public defenders of one kind or another.

Lack of sufficient funding to handle that burden is the perennial lament of public defense advocates, and the numbers support their concerns. A comprehensive 1986 survey conducted by the bureau showed that indigent defense received slightly more than $1 billion in state, local and federal funding, as opposed to $3.2 billion for prosecutors, $13 billion for corrections, and $22 billion for law enforcement. The 100-county study released in 2000 showed that, though spending on indigent defense had increased greatly during the previous decade, it still constituted less than 3 percent of the counties' criminal justice budgets.

See also this chart of defense systems in the various states.

[More] Here is an update to the Mass. lawsuit referenced above, from the July 3, 2004 Boston Globe:

The state's highest court ruled yesterday that dozens of poor criminal defendants in Hampden County are being denied their constitutional right to counsel because they cannot find private lawyers to represent them at low pay rates.

The Supreme Judicial Court said that the defendants have suffered ''severe restrictions on [their] liberty and other constitutional interests." The ruling came only two days after the state public defender agency had urged the justices to let Hampden judges raise the hourly pay rates for lawyers who take court-appointed cases,

But the court stopped short of ordering that hourly rates in the county be raised, which would provoke a showdown with the Legislature, which sets the rates.

Instead, the court ordered representatives of Attorney General Thomas F. Reilly and the public defender agency to appear Thursday before Justice Francis X. Spina.

Spina will weigh the possibility of releasing defendants who have been held without bail in jail for more than seven days without counsel. He is also considering dismissing charges against some defendants, but could reinstate them if lawyers are provided.

William J. Leahy, the chief counsel for the Committee for Public Counsel Services, was delighted with the ruling.

''The SJC has ruled . . . that the right to counsel for indigent defendants in Massachusetts is going to be enforced, no ifs, ands, or buts," he said. ''And if the price of the state not funding the right to counsel is the release of defendants from bail or the dismissal of criminal cases, then that is a price the court is willing to order."

And an update from the Mass. paper, The Republican, dated July 14th, reports:
SPRINGFIELD - The state agency that oversees legal representation for the poor yesterday submitted to the state Supreme Judicial Court the names of 79 defendants in Hampden County it counts as not having lawyers.

William J. Leahy, the chief counsel for the Committee for Public Services, said the Springfield office of the agency is not taking new cases because the 10 staff lawyers already are handling 350 cases - 20 cases over the maximum caseload limit for the office. * * *

The full Supreme Judicial Court July 2 ruled that about 50 poor criminal defendants in Hampden County are being denied their constitutional right to a lawyer because private lawyers are turning down cases, saying the state's reimbursement rates are too low. Private lawyers, called bar advocates, handled cases for the poor in addition to the Committee for Public Services lawyers, called public defenders.

The court assigned Francis X. Spina, an associate justice of the state Supreme Judicial Court, to find a way to resolve the issue.

At the full court's direction, Spina is considering the possibility of releasing suspects who have been held in jail without bail for more than seven days, because they do not have lawyers. He also is weighing whether to drop charges against other defendants, though those charges could be reinstated if lawyers are found.

Posted by Marcia Oddi on Tuesday, July 27, 2004
Posted to Indiana Courts

Environment - Environmental Stories Today

Lake Michigan Shoreline. The Gary Post Tribune reports today, in a story headlined: "Purchase of steel mill lakefront land first step in shoreline rehab":

PORTAGE The Indiana Dunes National Lakeshore announced an ambitious timetable Monday for cleaning up and opening to the public 60.63 acres of beachfront property it is purchasing from the U.S. Steel Midwest Plant. Superintendent Dale Engquist said the existing sewer plant on the property, which currently services U.S. Steel, should be demolished by May 2005. Engquist is hoping the beach will be open for hiking, swimming and fishing in about two years. The land, which lies within the authorized boundaries of the national lakeshore, will cost about $3 million when its purchase is complete soon.
Electronic reporting of environmental data. An AP story today reports:
TRAVERSE CITY, Mich. - It sounds positively medieval in the computer age: submitting handwritten reports to the government.

Yet that was how hundreds of businesses and agencies in Michigan prepared monthly wastewater discharge reports - until the state began using a new online system designed to rescue environmental data collection from the technological Dark Ages.

"It was very cumbersome," said Bruce Merchant, wastewater superintendent for the city of Kalamazoo. "We had to write the numbers onto old computer forms that made four or five copies, so you had to press real hard."

Michigan has joined the National Environmental Information Exchange Network, a newly formed system that makes it easier for government workers to compile, submit and swap data collected under federal air and water pollution laws.

Thirteen states are members, and the total is expected to reach 35 this year, the Environmental Protection Agency says. Federal and local agencies and Indian tribes also can take part. Eventually, the network will be a vast reservoir of information accessible not only to government officials, but also to scientists, environmentalists and other interests.

"It does for environmental data reporting what the Internet does for the general public," said Kimberly Nelson, assistant EPA administrator.

The network will provide regulators with more accurate and timely information and will be especially helpful during emergencies such as floods, oil spills, even a terrorist attack, when officials need rapid, up-to-the-minute facts and the crisis cuts across different government jurisdictions, Nelson said. * * *

In Michigan, Beaulac estimates the change will save the DEQ $250,000 to $500,000 a year, mostly in reduced staff time. It is already paying off in Kalamazoo, where Merchant said the monthly reporting chore now takes about half a day of staff time instead of two or three days.

The average citizen cannot log onto the network. But membership will be granted to some private interests such as academics and environmental organizations. And much of the information will end up on Web sites that anyone can view. "Letting people have the raw data so they can crunch the numbers themselves and take off any spin that an agency might put on it is an important check and balance in the system," said James Clift, policy director for the Michigan Environmental Council.

Is Indiana a member of the Network? I can't tell for sure. But here is the Network's website. And this list includes Indiana:
Nine states, consisting of Michigan, Florida, Indiana, Minnesota, New York, Pennsylvania, Rhode Island, Texas, and Wisconsin, recieved a Network Challenge Grant award to develop security and data exchange technologies to help states advance their capacity to participate in the Exchange Network.
More environmental stories may be posted here later today.

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

Monday, July 26, 2004

Law - Most Disfunctional Governor / General Assembly Winner May be Illinois

The St. Louis Post Dispatch reported here Sunday that "Memos protect Illinois budget deal." Some quotes from the story:

SPRINGFIELD, Ill. - By Saturday, a term previously known only to the most hopelessly wonkish of bureaucrats - "memorandum of understanding" - had sprung fully into the everyday political language of Springfield.

It means, a written promise between negotiating parties that they won't go back on their word after the negotiations are over.

And the fact that Democratic Gov. Rod Blagojevich was forced to sign dozens of those guarantees this month, before legislators of either party would give him a state budget, may be the latest sign that the once-charmed chief executive is in deep political trouble. * * *

Those memos include guarantees that the governor won't use administrative tactics to shut down Vandalia Correctional Center after agreeing in the budget to keep it open; that he would allow tighter oversight of new state borrowing, an activity for which he has been widely criticized; and that he won't halt the progress of specific, previously approved capital projects.

While memoranda of understanding are sometimes signed to prevent confusion in complex policy negotiations, it's unprecedented in Illinois for dozens of the written promises to be used as a backup for a governor's word in something as basic and public as the state budget.

"It's a slap in the face," said Chris Mooney, political scientist at the University of Illinois at Springfield. "The best-case scenario is that they've got a bad communication problem. The worst-case scenario is, none of them trusts (Blagojevich)."

The Chicago Tribune reported this morning:
But in an extraordinary move, the legislative leaders demanded dozens of side agreements from the governor--in writing--to ensure he would stick to the deals he made.

Lawmakers also restructured several legislative oversight panels to give the General Assembly more leverage over the administration in issuing contracts, making changes in state employee health insurance and implementing the finer points of new laws.

The moves reflected a growing distrust of a governor who has made a practice of accusing legislators of being beholden to special interests and spending like "drunken sailors," and who has aggressively used his bully pulpit to stump for his budget. * * *

The so-called memoranda of understanding between the governor and leaders "brought a level of comfort" to deal with a "certain level of distrust" among the negotiators, Madigan said Saturday. Other top budget negotiators agreed.

"It shows the distrust that exists, that we do have to commit every last thing to writing instead of simply saying we understand each other," said Rep. Gary Hannig (D-Litchfield), the House Democrats' point man in the contentious budget talks. "In the past there has been more of a willingness to say, `If I agree to something, that's what I will do.'"

Posted by Marcia Oddi on Monday, July 26, 2004
Posted to General Law Related

Environment - Stories Today

Gibson Station. Here is a Princeton Daily Clarion story on the problems with the Cinergy plant, that we last noted Friday in this entry (third item).

New Castle odor. "New Castle citizens organize to raise stink about odor" is the headline to this story today in the Muncie StarPress. This caught my eye:

NEW CASTLE - Two dozen concerned citizens, including a mailman, engineer and optometrist, attended a meeting Friday night to discuss a long-time odor problem in the community. * * * Eddie Hager, who owns Sta-Green lawn service company, organized the meeting at Chrysler High School. * * *

Hager said he had documented more than 200 incidents related to the odor.

He went to IDEM's offices in Indianapolis to look at files on Metaldyne New Castle, which purchased the DaimlerChrysler machining and forge plant here on Dec. 31. The plant is part of Metaldyne's chassis group, and manufactures suspension components as well as engine and transmission components for Chrysler, Jeep and Dodge vehicles.

IDEM staff rolled its voluminous files on Metaldyne out on a dolly. "It's all about chemicals," Hager said of what was in the files.

When he told the staff he would like copies of the files, he was told it would cost $1 a page. That's done to discourage people from copying the files, Hager said. [My emphasis]

Posted by Marcia Oddi on Monday, July 26, 2004
Posted to Environmental Issues

Indiana Decisions - One Court of Appeals and One Tax Court Opinion Posted Today

Daniel & Kimberly Lumbard v. Farmers State Bank (7/26/04 IndCtApp) [Estates & Trusts]
Baker, Judge

The Sixteenth Century British author Henry Fielding wrote, If you make money your god, it will plague you like the devil. In this cause, children have been turned against mother and mother against children because of money.

[In this action to construe a trust] Grandson claims that the trial court erroneously admitted a purported will at trial as evidence. Moreover, Grandson claims that the powers of appointment given to Vivian G. Lumbard (Grandmother) in two different trust documents were never exercised because Grandmothers will was never probated. Granddaughter contends that only one power of appointment was exercised, while Daughter maintains that both powers of appointment were exercised by Grandmothers purported will. * * *

[Admission of Purported Will] Here, no party is attempting to probate Grandmothers purported will. Moreover, the reason for [IC] 29-1-7-15.1(d) simply does not exist here because the property at issue is not being distributed via the intestacy laws inasmuch as the trust agreements specifically provide for their allocation. Finally, no party has ever alleged that Grandmother was incompetent when executing her will or that she was subject to undue influence. In sum, the reasons for [IC] 29-1-7-15.1(d) simply do not exist in this case and, thus, that statute does not apply here. Accordingly, while Grandmothers purported will has no force as a will, it certainly expresses her desires as to the trust property and may be used to determine her intent. * * *

[Vivian Trust] In sum, Grandmother did all she could do while alive to express her intent to exercise her power of appointment over the Vivian Trust. The fact that the trustees attorney correctly construed Grandmothers actions initially but then second-guessed himself does not affect Grandmothers expression of her intent. As a result, the trial court did not err in holding that the purported will exercised the power of appointment granted over the Vivian Trust. * * *

[Family Trust] The uncontroverted evidence shows that the purported will, signed by Grandmother and witnessed by two persons, was a Deed, Conveyance, Bill of Sale, Gift, or by any written instrument executed by [Grandmother]. Moreover, as previously stated, no charge of undue influence or incompetence has ever been lodged. Consequently, we must conclude that Grandmother successfully exercised her power of appointment over the Family Trust.

Conclusion. In light of the issues addressed, we conclude that the trial court did not err in admitting Vivians purported will into evidence. Moreover, we conclude that the trial court properly found that Vivian exercised her power of appointment under the Vivian Trust because our statute of limitations with respect to wills does not bar the introduction of a purported will to demonstrate that a power of appointment has been exercised. Additionally, the trial court did not err in finding that the exercise of the power of appointment under the Family Trust was exercised because Grandmothers will was a written document. As a result of our decision, Daughter shall receive all property in the Vivian Trust. Daughter, Granddaughter, and Grandson shall each receive one-third of any property remaining in the Family Trust. Grandsons share, however, is limited to the lesser of one-third of the property remaining in the Family Trust or Grandfathers landif anyheld in the Family Trust.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Steven R. Kreps d/b/a Best Heating & Cooling v. Indiana Department of State Revenue (7/22/04 IndTaxCt. - Not for Publication) [Procedure]
Fisher, Judge

The issue is whether Kreps has established that he is entitled to relief under Indiana Trial Rule 60(B). * * *

In short, Kreps petition does not explain why or how his petition should be considered timely filed. Taxpayers are presumed to know the law by statute, Kreps was required to file his petition to this Court no later than June 12, 2003 (180 days after the 12/12/02 date the LOFs were issued by the Department). See A.I.C. 6-8.1-5-1(g). See also Evansville Concrete Supply Co., Inc. v. Indiana Dept of State Revenue, 571 N.E.2d 1350, 1354 (Ind. Tax Ct. 1991) (citation omitted) (stating all persons are charged with knowing their rights and remedies prescribed by statute). Kreps relied on the assertions contained in his petition to oppose the Departments motion to dismiss; that reliance resulted in dismissal because nothing in the petition demonstrated that Kreps had timely filed his petition. Kreps cannot now come to the Court expecting a different result.

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

Indiana Decisions - Four 7th Circuit Opinions Today

Vladimirova, Detelin v. Ashcroft, John D. (Petition for Review of Orders of the Board of Immigration Appeals)

Barry Aviation Inc v. Land O'Lakes Airport (WD Wis.)

Before FLAUM, Chief Judge, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Barry Aviation, Inc. filed a sevencount complaint against the defendants on November 22, 2002. The district court dismissed the counts based on 18 U.S.C. 1961 and 42 U.S.C. 1983 for failure to state a claim upon which relief could be granted. It then dismissed the remaining five counts based on state law because it determined that Barry Aviation had failed to allege its state of incorporation and therefore had not alleged jurisdiction based on diversity of citizenship. The district court denied leave to amend the complaint because it concluded that the statute of limitations had expired for each claim. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.
Zaidi, Syed v. Ashcroft, John D. (Petition for Review of Orders of the Board of Immigration Appeals)

Harvey, R. J. v. Office of Banks & Real Estate (ND Ill.)

Before RIPPLE, ROVNER, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Renard J. Harvey, Ralph
King, Brian Robinson, and Dennis Wells, all African-Americans, were employees of the State of Illinoiss Office of Banks and Real Estate (OBRE). In this suit, they claimed that they had been subject to unlawful racial discrimination and retaliation on the job, in violation of Title VII, 42 U.S.C. 2000e et seq., and 42 U.S.C. 1981. Wells was dismissed from the case at the close of the plaintiffs evidence and the jury found against Robinson. Harvey and King prevailed at trial on most of their claims. The jury found that OBRE had discriminated against Harvey on the basis of race when it demoted him from a top management position. King prevailed on three claims: the jury found that he had been discriminated against on two separate occasions when he failed to receive a promotion and that OBRE retaliated against him after he complained about race discrimination in the agencys promotion practices. OBRE appeals from these findings, contending that there is insufficient evidence to support the verdict in favor of Harvey and King. We affirm.

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

Indiana Law - Public Records Stories Today

Real estate sales information online. The Fort Wayne Journal Gazette reports today that: "To comply with new dictates from the state, county assessor offices throughout the area are preparing to record real estate sales information electronically." More from the story

The move to store the forms in computer files, rather than in thick books and full filing cabinets, will simplify records searches for real estate agents, residents and state officials alike. But it comes at an undetermined cost to already financially strapped, overworked county offices.

Effective Jan. 1, 2005, counties will be required to submit property sales disclosure information including the propertys parcel number, address, cost, buyer and seller through computer disks.

Information can be scanned or entered manually into a required format, but it must be sent electronically to the state in a standard file format, said Annisa Rainey, communications director for the Indiana Department of Local Government Finance.

Both that department and the Legislative Services Agency use the data, Rainey said. So having it in electronic format obviously makes it usable for everyone. The state will compile the information in a database, and individual assessors offices will be able to make their data available on a computer. Some counties, such as DeKalb, plan to put the information on the Internet. * * *

The state, which until now received paper forms, will use the information to compare reassessment values and property sale prices. And real estate agents will have scores of sale prices at their fingertips.

It would be very helpful when we try to price a property and list a property, said Jane Kearns, a broker at Re/Max Tri-State Realty in Angola. You can go in and compare properties, one for the other. Sometimes that really helps in pricing.

Notifying Citizens of Their FOIA Rights. The Chicago Tribune reports today that:
Most municipal Web sites in Cook and DuPage Counties do not offer substantive or instructive information about the Freedom of Information Act and thus fail to alert citizens of a crucial checkpoint intended to enhance government accountability, according to a watchdog group. * * *

The survey, conducted by the Elmhurst-based Citizen Advocacy Center, looked at all 133 municipalities in Cook County and all 37 municipalities in DuPage, as well as the counties themselves. Ninety-seven of the Cook municipalities maintain Web sites, and all but two do in DuPage.

The survey found, however, that 80 percent of the DuPage municipalities' Web sites and 82.5 percent of the Cook municipalities' Web sites make no mention of FOIA at all or refer to the act only by name. A few have one paragraph or less explaining FOIA, and only 5 percent have substantive information posted about it, the study found.

Many of the sites include downloadable FOIA request forms, but by not providing minimal information about the act's intent and purpose, the municipalities fail to inform people what it is and how to exercise their rights, the survey concludes. * * *

A handful of municipalities' Web sites were singled out for providing helpful FOIA information and request forms: Schaumburg, Lombard, Lisle, Calumet City, Morton Grove and Winnetka.

What about Indiana? I took a look at the Indianapolis site, at IndyGov.org. Nothing about FOIA on the home page, as far as I could see. So I used the site's search function and typed in FOIA. I immediately got the link to the City's Public Access Counselor site, which includes information about both federal FOIA and the state Open Records Law and Open Door Law. A particularly helpful page provides links to the type of information maintained by each city department.

Posted by Marcia Oddi on Monday, July 26, 2004
Posted to Indiana Law

Indiana Decisions - Judge rules expulsion violated teen's rights

An AP story today, titled "Judge rules expulsion violated teen's rights," reports

FORT WAYNE, Ind. - Two school administrators violated a student's due process rights when they expelled him after he was photographed by another student while showering in the boys locker room, a federal magistrate ruled.

Wayne High School wrestler Brandon Tun could not have violated a school rule against public indecency because a locker room shower is not a public place, U.S. Magistrate Judge Roger B. Cosbey ruled. * * *

The 34-page order was issued Thursday in U.S. District Court in Fort Wayne.

I checked the Northern District of Indiana site in an attempt to locate the opinion. However, although the capability is there, it appears that few, if any, opinions have been posted for any of the judges.

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

Law - Prenatal testing for genetic deflects

"As Gene Test Menu Grows, Who Gets to Choose?" was the headline of a very interesting story in the Science Section of last week's New York Times. Here is a quote from the article:

Too many health care providers, critics say, have not educated themselves about the genetic tests that could benefit their patients. Others, pressed for time, simply do not communicate what can be complex information. And some choose not to inform their patients of certain tests they have deemed inappropriate, in effect making a value judgment about abortion, disabilities and risk that patients say they have a right to make for themselves.

Some critics also blame the professional societies that set policy for specialists, which they say are reluctant to endorse scientifically valid tests for fear of exposing their members to lawsuits. As a result, advocates for patients say, the medical profession is failing to deliver the benefits of the genomic revolution to the public that financed it.

Medical professionals say they need to assess which of the hundreds of tests that have become available in the last decade are most useful for any given patient. They also say they do not want to alarm people unduly by suggesting they be tested for conditions that are rare. Even though someone might want to assess the risk of every known condition, they say such an approach would not justify the public health expense.

Posted by Marcia Oddi on Monday, July 26, 2004
Posted to General Law Related

Sunday, July 25, 2004

Law - New York's Legislature Deemed Most Dysfunctional in the Nation

In apparently some disbelief, the LA Times reports today, in a story headlined "N.Y. Legislature Seen as Rife With Problems: A study labels the state's system the nation's most dysfunctional -- worse than California's," that:

NEW YORK The California Legislature the domain of "girlie men," according to Gov. Arnold Schwarzenegger doesn't come close to matching the assessment of its East Coast counterpart in a new study. The legislative process in New York state has been labeled the most dysfunctional in the nation.

In a scathing report, a research and advocacy group said that fewer than 1% of the key bills passed by lawmakers from 1997 through 2001 were the subject of public hearings and that fewer than one in 20 were debated on the floors of the state Senate or Assembly.

Making the process even more opaque, the report said, New York has the only state legislature that routinely allows empty-seat voting, in which the votes of absent representatives are automatically counted as favoring a bill's passage.

Adding to the limitations on the public's ability to participate, the group said, Democrats and Republicans routinely discussed bills behind closed doors without any transcript or public record.

Read the report for yourself. Here is the press release of the Brennan Center for Justice at NYU School of Law, which put out the report. And here is a direct link to the 108-page report itself: THE NEW YORK STATE LEGISLATIVE PROCESS: AN EVALUATION AND BLUEPRINT FOR REFORM.

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

Economic Development - Stories Today

Power Plants. The Munster Times has a lengthy and important story today about the possibility of a permanent shutdown of the NIPSCO Mitchell Generating Plant on Lake Michigan. Some quotes:

One side envisions a glittering convention center, high-rise hotels and "Disney-on-the-Lake" at the shores of Lake Michigan. The other fears electric rates could go up for everyone from little old grandmas to the largest industrial employers in northern Indiana. * * *

Since 1999, when the city paid $25 million for the Lehigh cement factory, [Gary Mayor Scott King] and Majestic Star Casino owner Don Barden have been promoting a "city-within-a-city" along the lakefront to the east of Buffington Harbor. The first phase would include a high-rise hotel, outdoor amphitheater and marina.

Standing in the way of bigger plans is a limestone processing plant and the Mitchell generating station. King also says he wants to take the Mitchell plant and its smokestacks down to allow for lengthening a runway at the Gary/Chicago International Airport to the south.

The whole question was dumped into the lap of the Indiana Utility Regulatory Commission on May 7, when the city of Gary asked the commission to set a price on the Mitchell plant and establish terms and conditions for acquiring it.

The struggle over Gary's plans to seize or buy the shuttered Dean H. Mitchell electric generating station on the shores of Lake Michigan highlights the difficult choices ahead in Northwest Indiana's drive to convert slag heaps into playgrounds..

Medical Malpractice. A major story in the Indianapolis Star today reports: "Insurance hikes deter state's baby doctors: As rates multiply, more physicians limit practice to gynecology." The story lays the problem at the doorstep of the state Department of Insurance. Some quotes:
Nobody has exact numbers, but physicians throughout Indiana are getting out of the baby business because of rising malpractice insurance costs, even though Indiana still has among the lowest malpractice rates in the country.

Many doctors think the state contributed to the problem.

A fund created to keep malpractice rates low and prevent a problem in the first place was almost depleted before the state Department of Insurance ordered a 73 percent increase for all physicians.

"For us, these increases are huge," said Smirz, adding that most physicians could have handled incremental increases. "It's a lot when you consider cash flow in a medical practice."

The Patients' Compensation Fund was established in 1975, when Indiana became the first state to cap the amount of money a person could win in a malpractice lawsuit. In addition to carrying insurance, all physicians pay an annual surcharge to the fund. Damage awards exceeding a physician's insurance coverage would be paid by the fund.

As a result, Indiana physicians enjoyed relatively predictable malpractice insurance costs for almost 30 years. Until now.

Doctors said they were stunned by the magnitude of the increase -- the kind of jump bedeviling physicians in other states but almost unheard of in Indiana.

How did this happen?
When the award cap was raised to $1.25 million in 1999, the Department of Insurance was directed to conduct periodic reviews to ensure the fund was collecting enough money to cover the semiannual payouts.

The first review since 1999 was completed last summer. By then, the fund was in such dire straits that an emergency increase was required. The fund balance dwindled from almost $118 million in 1999 to $4.3 million last year.

"We were very disappointed it ended up to be such a large increase," said Amy Strati, acting director of the Insurance Department. She said the review, begun in 2002, was delayed by an old computer system. It since has been replaced, and reviews will be completed annually, she said.

Although the current increase was implemented in August, most physicians' policies did not come due until January or July, which is why some didn't stop obstetrics until this year. Neurosurgeons and obstetricians pay the highest surcharges, but obstetricians already were stressed by shrinking reimbursements for births, physicians said.

Posted by Marcia Oddi on Sunday, July 25, 2004
Posted to Indiana economic development

Law - More on Rep. Hostettler Proposal

Both the Louisville Courier-Journal and the New York Times today have editorials on Indiana Congressman John Hostettler's proposal that would bar federal courts from ruling on state bans on gay marriage. See the earlier Indiana Law Blog entry here.

The Courier-Journal piece is headlined "Kentucky delegation betrays Constitution for gay marriage hysteria." Some quotes:

What Northup, Chandler, Hostettler and all the other representatives from Kentucky and Southern Indiana (except the courageous Baron Hill) voted to do is radical. If the bill in question were to become law, it would undermine the authority of the high court to declare acts of Congress, and by implication acts of the president, unconstitutional. Those whom the courts have protected against laws that discriminate in some unconstitutional way will see the danger posed by H.R. 3313.
The Times editorial is titled "A Radical Assault on the Constitution." Some quotes:
Majorities that are frustrated when courts stand up for minority rights have occasionally tried to strip them of the power to do so. This week, the House voted to deny the federal courts the ability to decide a key constitutional issue involving gay marriage. Such a law would upset the system of checks and balances and threaten all minority groups. It is critical that the Senate reject it. * * *

The House's solution, stripping the federal courts of power, is one that opponents of civil rights and civil liberties have been drawn to in the past. Opponents of court-ordered busing and supporters of school prayer tried it. But even at the height of the backlash against the civil rights movement, Congress never passed a law that completely insulated a federal law from Supreme Court review.

This radical approach would allow Congress to revoke the courts' ability to guard constitutional freedoms of all kinds. And although gays are the subject of this bill, other minority groups could easily find themselves the target of future ones.

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

Indiana Courts - Federal Courts to Have Online Filing

An AP story today reports that:

The days when lawyers and messengers have to race to file papers before the courthouse closes are fading as printed records give way to online filing, although fully electronic court records are still years away.

On Sept. 1, the Indianapolis court moves a bit closer to that reality when documents in all civil cases filed on or after July 1, 2002, must be filed online.

The change is part of the E-Government Act of 2002, aimed at using information technology to make government more accessible and increase efficiency. The federal court system's online docket actually began years earlier as a way to manage massive class action cases, officials said. * * *

Posting is virtually instantaneous, so documents that are filed before midnight bear the same day's date even though the courthouse has been closed for hours. Papers are served instantaneously by e-mail. * * *

The public can view and download many court documents on the Internet. An online account is required, and the government charges a fee of 7 cents per page accessed.

Here is the notice of the changeover to electronic filing, posted on the Southern District of Indiana's website. Here is the Court's main information page about electronic case files, including a link to Frequently Asked Questions.

More. A check of the Northern District of Indiana site indicates that electronic case filing has been available since at least 3/23/04, and appears to be mandatory.

Posted by Marcia Oddi on Sunday, July 25, 2004
Posted to Indiana Courts

Saturday, July 24, 2004

Indiana Decisions - More on Revised Curfew Law Rejection

The Indianapolis Star today has this story headlined "Curfew struck down yet again: Judge says state law violates parents' constitutional right to set rules for their children." The lead:

A federal judge ruled Friday that Indiana's curfew law is unconstitutional because it violates parents' right to make decisions about their children.

The action -- the third time a court has struck down the curfew since 2000 -- means communities must immediately stop enforcing the law, which bans most minors from staying out past 11 p.m. on weeknights and 1 a.m. on weekends.

See also yesterday's Indiana Law Blog coverage, three entries down.

[7/26/04 Update] Here is a copy of the City of Indianapolis' 7/23/04 press release, announcing that the city curfew ordinance still stands, and that it will enforce it.

Posted by Marcia Oddi on Saturday, July 24, 2004
Posted to Indiana Decisions

Not Law, but Hilarious

WATCH the cartoon takeoff of Geroge Bush and John Kerry singing "This Land is Your Land."

Caution: High bandwidth required.

Posted by Marcia Oddi on Saturday, July 24, 2004
Posted to General News

Friday, July 23, 2004

Environment - Environmental Stories Today

State Attorneys General. This interesting story from the Christian Science Monitor, headlined "New environmental cops: state attorneys general," begins:

NEW YORK - State attorneys general are known best for throwing mobsters in jail and trying to protect consumers from things like false advertising and Medicare fraud. But now an increasing number are taking an activist role well outside their state boundaries - challenging federal agencies, treading novel legal waters, and suing everyone from pharmaceutical companies to mutual funds.

In their latest foray, they're taking on global warming and polluters in states other than their own. Wednesday, eight attorneys general from California to Connecticut, along with officials from New York City, filed suit against five giant utilities they contend are the nation's largest emitters of carbon dioxide, a key contributor to global warming. None of the companies are located in the states that are suing.

Asbestos. An AP story reports: "ATLANTA (AP) - Asbestos deaths in the United States have skyrocketed since the late 1960s and will probably keep on climbing through the next decade because of long-ago exposure to the substance, once widely used for insulation and fireproofing, the government said Thursday. The Centers for Disease Control and Prevention said 77 people died from asbestos in 1968, and nearly 1,500 people died from it in 2000." And here is the CDC report, "Changing Patterns of Pneumoconiosis Mortality --- United States, 1968--2000."

Gibson Station. Updating a story we've been following, today's Mt. Carmel Daily Republican Register reports, in a story titled "Cinergy voluntarily shutting SCR's":

The City of Mt. Carmel learned this morning that Cinergy/PSI is going to voluntarily shut down both selective catalytic reduction (SCR) units at Gibson Station.

"They have voluntarily decided to shut both SCR's down until an approved protocol system can be developed between the regulating agencies and Cinergy," City Economic Development Director Bill Maples told the Register this morning. * * *

The announcement comes less than 24 hours after a teleconference held Wednesday afternoon between representatives of the City of Mt. Carmel, the Illinois Attorney General's office, U.S. EPA, Illinois EPA, Indiana Department of Environmental Management (IDEM) and Cinergy/PSI. It also comes two days after the Illinois EPA announced it had filed a referral with the Illinois Attorney General's Office, seeking suit against Cinergy/PSI.

Maples said Illinois agencies at Thursday's teleconference wished to establish an agreed-upon protocol for testing of products at Gibson Station. "We also want the SCR's shut down, and only turned on when they are going to test something that has been approved by the Illinois EPA, IDEM and the U.S. EPA," he said after Thursday's conference call. Maples said the State of Illinois'' basic concern is it wants the chance to "sign off or approve" a material that Cinergy wants to test at Gibson Station.

Toxic releases. The Evansville Courier&Press reports:
An aluminum scrap processing plant in Evansville allegedly released up to 60 times more cancer-causing dioxin and furan air pollution than allowed by federal law, according to the U.S. Environmental Protection Agency. Intrametco Processing Inc., 1901 W. Louisiana St., also allegedly failed to comply with federal requirements for notification, planning, testing and labeling, an agency spokesman said.
National Priority List The Courier&Press also reports that "The U.S. Environmental Protection Agency has tagged cleanup of Evansville's Jacobsville neighborhood "'a national priority.'" More:
The EPA on Wednesday placed roughly 250 acres in that neighborhood on its National Priorities List of hazardous waste sites. The list includes 1,245 sites and 56 proposed sites. Jacobsville was one of nine sites placed on the list Wednesday, but the only one in the Midwest, according to an EPA spokesman. * * *

The Indiana Department of Environmental Management first discovered lead contamination after emergency cleanup of the former Evansville Plating site, when environmental investigators examined an area near the site.

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

Indiana Decisions - Curfew Law Voided - Again

WRTV 6 is reporting this evening that federal Judge John Tinder has today thrown out the State's revised curfew law.

Recall that earlier this year, in Hodkins v. Peterson, Mayor of Indianapolis (1/22/04 USCA 7th Cir.) the 7th Circuit ruled, in the words of the Indianapolis Star, that "that Indiana's curfew law was unconstitutional because it could dissuade children from exercising their First Amendment rights for fear of being arrested." (see 3/18/04 ILB entry). That ruling reversed an earlier decision of Judge Tinder, upholdng Indiana's curfew law (IC 31-37-3-2 and 3.5).

This session of the Indiana General Assembly amended the curfew law, and suit was filed by the ACLU to test the revised version. This time, Judge Tinder reportedly rejected the revised law (note - the opinion is not yet available, I am writing solely on the basis of the WRTV report).

But I will say, there should be no surprises here, for anyone who has reviewed the 7th Circuit opinion against the revisions made by the 2004 General Assembly. See this lengthy Indiana Law Blog entry I posted July 5th for more information.

[Immediate update] Whoa! Here it is: Nancy Hodgkins v. Bart Peterson. And here is the "Preliminary injunction prohibiting enforcement of Indiana's juvenie curfew law."

Judge Tinder's conclusion, after reviewing decisions from other jurisdictions, is that:

Review of these decisions supports the conclusion that the Indiana curfew law is not narrowly tailored enough to serve the States interests while respecting parental rights. Because the defenses to Indianas curfew law are less broad than those in these other cases, the curfew laws impingement on parental rights is greater here. While the curfew laws defenses do give parents some flexibility in deciding whether their children can stay out in public during curfew hours, it nonetheless impinges on their right to make that decision in many other situations likely to occur. For example, Indianas curfew law precludes a parent from deciding that her child may do something as innocent as pick up a prescription drug at the 24-hour pharmacy down the street, gaze at stars while sitting on the sidewalk adjacent to the family home, or walk the dog around the block during curfew hours. * * *

In sum, the court has determined that the State has a compelling interest in reducing juvenile crime and victimization, and has assumed it has an interest in
supporting and assisting parents in their child rearing roles. However, the curfew law has not been shown to be drafted sufficiently narrowly to serve those interests.

Therefore, the court concludes that Indianas juvenile curfew law is unconstitutional in that it infringes on the fundamental right of parents to direct the care, custody and control of their children. Accordingly, the Plaintiffs motion for preliminary injunction will be GRANTED. * * *

Because the court has concluded that the curfew law violates the substantive due process rights of parents, the Plaintiffs can demonstrate no adequate remedy at law, irreparable harm, and that the balance of harms favors an injunction and an injunction will serve the public interest. Accordingly, the court will GRANT the motion for preliminary injunction.

Judge Tinder, at the end of the 34-page opinion, writes:
Once again, at least while this injunction is in effect, Indiana will not have a valid curfew law to enforce. Some may express concern about what effects may follow the loss of governmental control of minors late night activities. It is doubtful that the lack of a statutory curfew will be disastrous, though. As stated in an entry in a prior case in the series of cases litigating Indianas curfew law:
[T]his ruling should not be construed as an invitation to all Hoosier youth to run wild through the nights. Indiana law enforcement authorities retain full authority to enforce the substantive laws that prohibit juvenile delinquency, such as vandalism, trespass, underage alcohol consumption, drug use, theft and so on. Indiana parents also retain the right to set and enforce rules within the family unit--including curfews--for their children, and common sense dictates that they will.
Hodgkins v. Goldsmith, IP99-1528-C-T/G, 2000 WL 892964, at *2 (S.D. Ind. July 3, 2000).

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

Indiana Courts - Pro Se Guide to Appellate Procedure in Indiana

Via a press release:

INDIANAPOLIS David C. Lewis, the Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, is pleased to announce the publication of Indianas first Pro Se Guide to Appellate Procedure. This publication is one element in the Clerks initiative to improve public access to the appellate courts, and it is intended to assist the growing numbers of self-represented litigants filing appeals in Indiana.

The Pro Se Guide to Appellate Procedure promises to be an important tool for litigants attempting to navigate the complex appeals process without the assistance of an attorney, said Lewis. The guide provides answers to the most frequently asked questions about appeals, definitions of legal terms, and samples of forms necessary to an appeal.

The Pro Se Guide to Appellate Procedure focuses primarily on appeals to the Indiana Court of Appeals, the intermediate level court that hears criminal and civil appeals from Indianas trial courts and administrative agencies. The Guide also provides information on appeals to the Indiana Supreme Court.

Posted by Marcia Oddi on Friday, July 23, 2004
Posted to Indiana Courts

Indiana Decisions - Indiana Court of Appeals Posts Four Rulings

Sheila Ritchhart v. Indianapolis Public Schools (7/23/04 IndCtApp) [Torts]
Kirsch, Judge

Sheila Ritchhart appeals the trial court�s entry of summary judgment in her action against Indianapolis Public Schools (�IPS�) seeking damages for the negligent infliction of emotional distress and presents two issues for our review. We find the following restated issue dispositive:
Do the designated materials establish that Ritchhart may not maintain an action for the negligent infliction of emotional distress where the undisputed facts show that IPS, which transported her young child to and from school, delivered the child to the wrong address, causing her not to know of his whereabouts for three hours? We affirm. * * *

[W]e employ the three-part test set out in [Groves v. Taylor, 729 N.E.2d 569, 572-73 (Ind.2000)]. The second part of the test, that the plaintiff and the primary victim have a close family relationship, is obviously satisfied here. Joshua is the primary victim in this incident; Ritchhart is Joshua�s mother. This certainly constitutes a close family relationship. However, Ritchhart�s claim fails to satisfy either the first or the third parts of the test. Joshua was not physically injured. Moreover, Ritchhart did not witness any part of the incident giving rise to her complaint. Instead, this situation is more akin to that identified by the Groves court as the non-compensable �experience of learning of a loved one�s death or severe injury by indirect means.� Groves, 729 N.E.2d at 573 (quotations omitted). While Ritchhart certainly heard upsetting news regarding her son, first that he was lost, and then later, that he had been delivered to the wrong house, she did not personally witness an upsetting scene or its �gruesome aftermath.� Id. Under the Groves standard, Ritchhart may not recover for negligent infliction of emotional distress on these facts. The trial court did not err in granting summary judgment. Affirmed.
RILEY, J., and ROBB, J., concur.

In Re The Matter of K.E. and W.E. (7/23/04 IndCtApp) [Family Law]
Friedlander, Judge
Christine Elliott appeals the denial of her motion to set aside a judgment terminating her parent-child relationship with her sons, K.E. and W.E. The sole issue on review is: Did the trial court abuse its discretion by denying Elliott�s motion to set aside filed more than two years after judgment was entered? We affirm. * * *

Based on the foregoing, despite Elliott�s attempt to assert a belated appeal of the termination of her parental rights, our proper review is from the denial of a motion to set aside pursuant to T.R. 60(B). As Elliott�s two-year delay in challenging the July 2001 termination is not reasonable under the circumstances and she offered no meritorious claim or defense, the trial court did not abuse its discretion in denying her Motion to Set Aside. Judgment affirmed.
BAKER, J., and BAILEY, J., concur.

Northern Indiana Commuter Transportation District v. David Marron (7/23/04 IndCtApp) [Procedure; Venue]
Bailey, Judge
Appellant-Defendant Northern Indiana Commuter Transportation District (�NICTD�) appeals, pursuant to Indiana Trial Rule 14(A)(8), the denial of its motion to transfer venue of a Federal Employers Liability Act (�FELA�) claim filed by Appellee-Plaintiff David Marron (�Marron�) to Porter County, the county of its principal office. We reverse and remand. * * *

We, like the majority of courts that have considered the issue, find 45 U.S.C.A. � 56 to be inapplicable to venue determinations for FELA actions filed in state court. In essence, Marron chose to sue in Indiana, but seeks to establish preferred venue in Indiana by misplaced reliance upon a federal jurisdictional statute that has no application to venue when the claimant elects to proceed in state court. NICTD established that Porter County is a county of preferred venue under T.R. 75, while Lake County is not. As such, the trial court abused its discretion by denying NICTD�s motion for transfer. Accordingly, we remand this matter to the trial court to enter an order transferring this action to Porter County. Reversed and remanded .
BAKER, J., and FRIEDLANDER, J., concur.

State Farm Fire and Casulty Co. v. C.F. (7/23/04 IndCtApp) [Insurance]
Robb, Judge
[The issue is] whether C.F.�s injuries were caused by an �occurrence� and thus covered by the Christians� homeowner�s insurance policy. * * *

In the case at hand, State Farm attached to its motion for summary judgment the Chronological Case Summary in N.C.�s juvenile proceeding, which stated that N.C. admitted to two counts of criminal deviate conduct under Indiana Code section 35-42-4-2(3) and one count of child molesting under Indiana Code section 35-42-4-3(a). Criminal deviate conduct is defined as the following: �A person who knowingly or intentionally causes another person to perform or submit to deviate sexual conduct when . . . the other person is so mentally disabled or deficient that consent to the conduct cannot be given . . . .� Ind. Code � 35-42-4-2(a)(3) (emphasis added). Indiana Code section 35-42-4-3(a) defines child molesting as the following: �A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony.� Because N.C. admitted to knowingly or intentionally committing the acts against C.F., his actions were volitional and not accidental. Therefore, the Christians� homeowner�s insurance policy did not provide coverage for C.F.�s injuries because they were not the result of an occurrence.

Conclusion. Because C.F.�s injuries did not arise from an occurrence, the Christians� homeowner�s insurance policy did not provide coverage for C.F.�s injuries. Therefore, we reverse the trial court�s denial of summary judgment and remand this case to the trial court to enter summary judgment in favor of State Farm. Reversed and remanded.
SULLIVAN, J. and RATLIFF, SrJ. concur.

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

Indiana Decisions - Four 7th Circuit Decisions Posted Today

Simpson, William S. v. USA (The decision was originally released in typescript: see 7/16/04 ILB entry here)

Southworth, Scott v. Bd Regents Univ WI (WD Wis.)

Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. This is the fifth time this case is before this court.1 At issue in this appeal is the district court�s award of attorneys� fees and costs to the Plaintiff-Appellees, students (the �Students�) in the University of Wisconsin System (the �University�). The district court awarded the Students these fees and costs in litigation challenging the funding of certain groups by the University as violative of the Students� constitutional rights. Because the Students prevailed in part, we hold that the district court did not err in its award and we affirm its decision.

USA v. Ward, Aishauna [removed - did not reference Blakely or Booker. It originally concluded: "The district court therefore did not err by enhancing Ms. Ward�s sentence because James was abducted �to facilitate [the] commission of the offense or to facilitate escape.� U.S. Sentencing Guidelines Manual � 2B3.1(b)(4)."]

USA v. Ward, Aishauna (ND Ill.)

Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
FLAUM, Chief Judge. * * * Ms. Ward�s final argument on appeal is a challenge to the four-level sentence enhancement she received for Mr. Ward�s abduction of James at gunpoint. Both Mr. and Mrs. Ward received enhancements based upon U.S. Sentencing Guidelines Manual � 2B3.1(b)(4)(a), which provides that the defendant�s sentence should be enhanced if the district court finds that a person was abducted to facilitate the offense or to facilitate escape. As this Court recently determined in United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004), the Supreme Court�s decision in Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), calls into doubt the constitutionality of such enhancements. See also United States v. Penaranda, 2004 WL 1551369 (2d Cir. July 12, 2004); United States v. Montgomery, 2004 WL 1562904 (6th Cir. July 14, 2004); but see United States v. Pineiro, 2004 WL 1543170 (5th Cir. July 12, 2004) (addressing this issue but holding that Blakely should not be read to invalidate the U.S. Sentencing Guidelines). Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant�s sentence. As Booker holds, the Guidelines�s contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. Thus, in light of the analysis set forth in Booker, we remand these cases to the district court for resentencing.

Gower, Keith v. Vercler, Jeffrey (CD Ill.)

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit Judges.
COFFEY, Circuit Judge. * * * In all, Gower�s inflammatory, implicitly threatening, and personally abusive language, which was uttered after Gower had brandished a butcher knife at the Taylors the night before, is not the type of speech which is protected by the First Amendment and, therefore, the Illinois disorderly conduct statue was not applied unconstitutionally against Gower based on the facts of this case. Thus, the jury was properly allowed to rule in favor of the Defendants on Gower�s claim that Deputies Vercler and Garrett lacked probable cause to arrest him for disorderly conduct. The trial court's denial of Gower�s motion for a directed verdict was correct.*

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

So sorry but . . .

Pesky computer problems are slowing me down! I hope to have problems solved by mid-afternoon. I may be able to shoe-horn some entries in before then -- between annoying disconnects and error messages.

Posted by Marcia Oddi on Friday, July 23, 2004
Posted to About the Indiana Law Blog

Indiana Courts - Judge Kouros is suspended with pay by the Indiana Supreme Court

The Munster Times is among the papers today reporting that Judge Joan Kouros has been removed from the bench, pending a final decision by the Supreme Court. Per our 7/16/04 entry, also quoting the Munster Times:

The Indiana Commission on Judicial Qualifications filed a recommendation late Wednesday [July 14] that Kouros be permanently removed from the Lake County Criminal Court bench.

Until the state Supreme Court makes that decision, the commission asked the state's highest jurists to follow their own rule and suspend Kouros with pay. As of 5 p.m. Thursday, the court had not ordered Kouros suspended. * * *

Today's story reports that Judge Kouros has now been suspended:
All Kouros can do now is get her response to the Judicial Qualifications recommendation to the Supreme Court by Aug. 13. Even after her response is filed, Kouros will remain suspended with pay until the Supreme Court decides whether to take her off the bench permanently or reinstate her.

Kouros' lawyer, Kevin McGoff, said he and Stanley Jablonski are working with Kouros to file her response within the 30 days after the commission's recommendation.

"The order (for suspension) comes as no particular surprise because that's how the rule operates," McGoff said. "We are prepared to file our response in a timely manner and to go forward from there."

Posted by Marcia Oddi on Friday, July 23, 2004
Posted to Indiana Courts

Thursday, July 22, 2004

Indiana Decisions - Bob Knight Suit May be Dismissed

The AP is reporting this afternoon that:

Special Judge Cecile Blau of Clark County, who is handling the suit filed by 47 basketball fans after Knight's 2000 firing, said she was considering dismissing the matter since the fans' attorneys had never responded to a September 2002 filing by university lawyers.

The fans' attorneys, in a court document filed Wednesday, said they were trying to reschedule depositions with some IU officials that had been canceled because of schedule conflicts or illness.

"We just have a little bit to tie up, a couple more depositions," said Roy Graham, a Bloomington attorney representing the fans. "We should be able to go to trial or move for summary judgment. We're pretty confident we'll have all the evidence we'll need to go to trial."

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

Law - Rep. Hostettler Proposal

As reported in this AP story, the House of Representatives is considering Indiana Republican Congressman John Hostettler's proposal that would bar federal courts from ruling on state bans on gay marriage. "The legislation would strip the Supreme Court and other federal courts of their jurisdiction to rule on challenges to state bans on gay marriages under a provision of a 1996 federal law that defines marriage as between a man and a woman."

For an interesting review of this legislation, listen to this NPR story, "House Takes Up Role of Courts in Marriage Law," from Morning Edition, Thursday , July 22, 2004.

[Update] The bill passed the House today, per this entry from How Appealing, which includes links to the vote tally and the bill itself (HR 3313), which basically says: " 1632. Limitation on jurisdiction. No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section. the title of the bill is "To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act."

[More] The Friday Washington Post will report:

The House approved a bill yesterday to strip the federal courts of jurisdiction over same-sex marriage cases, despite warnings by opponents that the measure is unconstitutional and would open the floodgates for efforts to prevent judges from ruling on other issues, from gun control to abortion. * * * The bill, drafted by Rep. John N. Hostettler (R-Ind.), would prevent such a ruling by denying all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act, a 1996 federal law that says that no state has to recognize same-sex unions established in any other state. * * *

But the bill's congressional opponents, several constitutional scholars and a wide array of civil liberties groups called it a nearly unprecedented attack on the constitutional separation of powers among the judicial, legislative and executive branches of government. * * *

In a letter to lawmakers this week, Chai Feldblum, a professor at Georgetown University Law Center, said the last time that Congress passed a law stripping the Supreme Court of authority to hear a constitutional challenge was in 1868, when it feared that the court might invalidate the military Reconstruction of the South after the Civil War.

"When legislators rail that 'unelected judges' are finding legislative acts unconstitutional, they are attacking the very structure of our democracy," Feldblum wrote.

In recent decades, there have been calls for Congress to strip the courts of jurisdiction over numerous issues, including school desegregation, abortion and public displays of the Ten Commandments. But none has passed. Whether the Supreme Court would agree that Congress has power to wall off such areas is unclear, because the question has not been tested, scholars said.

Posted by Marcia Oddi on Thursday, July 22, 2004
Posted to General Law Related

Indiana Decisons - Court of Appeals Posts Three Today

Paula K. Crum, Thomas D. Gonzalez, Kaleel M. Ellis, II, Mary H. Ellis v. City of Terre Haute (7/22/04 IndCtApp) [Real Estate; Statutory Construction]

Court finds that subsequent transfee via quitclaim deed is liable for prior demolition costs under Indiana Unsafe Building Law.

Ricki Christmas v. State of Indiana (7/22/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge

Ricki Christmas (�Christmas�) was convicted of Class A misdemeanor resisting law enforcement in Johnson Superior Court and sentenced to serve 365 days in the Department of Correction. He was also ordered to serve that sentence consecutive to a sentence he received for a Class A misdemeanor trespassing conviction. Christmas appeals and argues that the trial court erred when it sentenced him to consecutive sentences without finding at least one aggravating circumstance. Concluding that the trial court was required to impose consecutive sentences pursuant to Indiana Code section 35-50-1-2(d), we affirm. * * *
BARNES, J., and CRONE, J., concur.
Randal Balding v. State of Indiana (7/22/04 IndCtApp) [Criminal Law & Procedure]
Robb, Judge
Randal Balding appeals the trial court�s decision to grant the State�s motion compelling Balding to submit a DNA sample to be included in the Indiana DNA Database. We affirm.

Issue. Balding raises one issue for our review, which we restate as whether the trial court properly granted the State�s motion to compel Balding to submit a DNA sample to be included in the Indiana DNA Database. * * *

In the instant case, Balding was convicted of the underlying offense of sexual battery in 2002. The Indiana DNA Database was established in 1996, and sexual battery was included as one of the crimes for which a convicted offender was required to submit a sample. Thus, at the time of his conviction, Indiana Code section 10-13-6-10 required Balding to submit a DNA sample. The State�s delay in requesting a sample until after the probation revocation did not make the requirement to submit a sample a new term of Balding�s sentence. * * *

Constitutionality of the Indiana DNA Database under the Fourth Amendment. Neither party asserts that an individualized suspicion of wrongdoing existed in this case. Therefore, the compulsory collection of DNA samples for inclusion in the Indiana DNA Database survives a Fourth Amendment challenge only if such searches serve a special need beyond the normal need for law enforcement and crime detection. We hold that they do. * * *

Balancing of Competing Interests. Having determined that the compulsory collection of DNA samples from convicted offenders for inclusion in the Indiana DNA Database falls within the �special needs� exception to the Fourth Amendment, we must now balance the private and public interests advanced by the parties to determine whether the search was reasonable. We will examine the following considerations: (1) the nature of the privacy interest upon which the search intruded; (2) the character of the intrusion into Balding�s privacy; and (3) the nature and immediacy of the governmental interest at issue and the efficacy of the Indiana DNA Database for meeting that interest. * * *

Because Balding possessed a reduced expectation of privacy and the character of intrusion in this case was minimal, and because the State�s interest was substantial in creating a DNA database, we hold the compulsory taking of Balding�s DNA sample with a buccal swab was a reasonable search under the Fourth Amendment.

Conclusion. The compulsory collection of DNA samples from convicted offenders to be included in the Indiana DNA Database does not violate the Fourth Amendment. Therefore, we affirm the trial court's decision granting the State�s motion. Affirmed.
SHARPNACK, J. and DARDEN, J. concur.

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

Indiana Decisions - Five from 7th Circuit Today

Sapoundjiev, Vassil v. Ashcroft, John (Petition for Review of an Order of
the Board of Immigration Appeals)

USA v. Henderson, Michael (ED Wis.)

Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
BAUER, Circuit Judge. * * * On February 18, 2003, the district court entered an order finding that bank larceny is not a qualifying offense under the DNA Act and enjoined the United States Probation Office from taking Hendersons DNA sample. The government now appeals this order. We reverse the district courts order. * * *

The question is whether bank larceny as set forth in Title 18, United States Code, Section 2113(b) is a qualifying offense requiring collection of Hendersons DNA under the DNA Act. We employ a de novo standard when reviewing questions of statutory construction and interpretation. * * *

The Attorney General at 28 C.F.R. 28.2 states that any offense under section . . . 2113 of Title 18 constitutes a qualifying offense. Given that larceny falls under one of the enumerated code sections, Title 18 U.S.C. 2113,
Section 28.2 of the regulations does not contradict, but rather is consistent with, the legislative intent of Congress in the DNA Act.

Also, the Attorney Generals construction is reasonable because it comports with the legislative history. * * * The Attorney Generals regulation is not manifestly contrary to the statute and deserves controlling weight. Therefore, we reverse the district courts order enjoining the United States Probation Office from collecting Hendersons DNA. REVERSED.

Advance Cast Stone v. Local Union 1 (ND Ill.) Court affirms district court judgment vacating an arbitration award in favor of Union.

Miljkovic, Dragan v. Ashcroft, John (On Petition for Review of an Orderof the Board of Immigration Appeals)

Witzke, Michael v. Femal, Michelle (ED Minn.)

Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Michael Witzke, a prisoner serving a sentence imposed by a Wisconsin state court, filed a pro se complaint under 42 U.S.C. 1983. He alleged that the defendants had been deliberately indifferent to his medical needs. The defendants moved to dismiss Mr. Witzkes complaint for failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act. See 42 U.S.C. 1997e(a). The district court granted the motion. For the reasons set forth in the following opinion, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

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

Indiana Law - More on Impact of Blakely on Indiana State Courts

Updating my post from yesterday evening (the second post down) on the impact of Blakely on Indiana state courts, Michael R. Limrick of McTurnan & Turner, Indianapolis, has been kind enough to provide me with a requested copy of his April 2003 Res Gestae article: "Overlooked consequences of Apprendi: the unconstitutionality of Indiana's non-capital sentencing." A quote from page 21 of the article (access the full article here):

Determining whether Indiana's non-capital sentencing scheme is constitutional under Apprendi requires answers to two key questions:

(1) At the moment the jury tenders its verdict, what is the maximum penalty that may be imposed on the defendant before any other action is taken?

(2) Is the defendant's sentence then increased beyond that maximum penalty based upon a fact -- other than the fact of a prior conviction -- that is found by the court, not the jury?

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

Indiana Decisions - More on BP Ruling Tuesday

The Munster Times today provides some background about the Court of Appeals decision Tuesday in BP Products North America, Inc. v. Board of Commissioners of Lake County (7/20/04 IndCtApp). Access the ILB entry here (5th in the list).

The headline: "Appeals court orders BP audit: County wins latest round in fight to open company's financial books." A quote:

The Indiana Court of Appeals has upheld Lake County's right to audit the tax returns of BP's Whiting Refinery, paving the way for an inspection the corporation has resisted for years. The county wants to audit BP's self-reported tax returns, from 1998 to 2002, to ensure the oil giant did not undervalue its machinery and equipment. Officials and attorneys here believe millions of tax dollars could be at stake. * * *

BP spokesman Tom Keilman said the company believed the appellate court decision was wrong and officials were determining whether to appeal the ruling to the Indiana Supreme Court.

The Whiting refinery opposed the audit only because officials believed the county missed its statutory deadline to request such an inspection, he said. "This is not a situation where we had anything to hide," Keilman said.

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

Wednesday, July 21, 2004

Indiana Law - Impact of Blakely in Indiana State Courts

This morning I wrote here about the National Center for State Courts' new report: "Blakely v. Washington: Implications for State Courts." I quoted its statement: "Indiana is apparently not affected by Blakely, said a spokesperson for the states attorney general." I continued:

This [position] corresponds to the only other statement about the potential impact of Blakely on Indiana state courts I've seen*, a brief report in the Gary Post Tribune reported here in the Indiana Law Blog on June 26, 2004.
However, the Tribune story was published the same week as the Blakely decision, before there had been time to really access its ramifications.

A reader advised me this afternoon that the bi-weekly print publication, Indiana Lawyer (paid subscription required) has a front-page story in the current, July 14-27 issue, titled "Criminal sentences under fire: U.S. Supreme Court ruling threatens sentencing statutes across nation." With respect to cases in state courts in Indiana, the article portrays a split of opinion about the applicability of Blakely, with prosecutors and the Attorney General's office, as one might expect, lining up on one side, and defense attorneys on the other.

Near the end of the article, Indianapolis attorney Michael R. Limrick is quoted:

I'm concerned by those who still want to stick by the notion that Indiana's current system is fine because it's a range," he said. "It's an easy trap to fall into, looking at the statutes that say years can be added to or subtracted from a presumptive sentence and calling that a sentencing range. But the statutes are clear that a judge cannot deviate upward from a presumptive sentence until that judge has found additional facts, a practice that is clearly impermissible under Apprendi/Blakely."
Review the statutes yourself; here is IC 35-50-2, Death Sentence and Sentences for Felonies and Habitual Offenders.
*The Evansville Courier&Press story I reported on at the beginning of this week dealt only with federal courts in Indiana.

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

Environment - News today

Andy Knott. The Evansville Courier&Press reports in a story today:

Andy Knott, a voice for the environment and opponent to a direct-route Interstate 69 in Indiana for more than 12 years, has left the Hoosier Environmental Council for a job in Michigan. Knott's last day with the council was Monday. * * *

In I-69 debates, Knott was often a calm spokesman but ready with a catchy or pointed quote for the media. Though they often butted heads in the highway debate, Indiana Department of Transportation Commissioner J. Bryan Nicol said he would miss Knott.

"I have a great deal of respect for Andy Knott," Nicol said. "He has been a tireless advocate, doing everything that he can on behalf of the Hoosier Environmental Council and on behalf of environmental issues. "I think it will be a loss for (the council) and a gain for the state of Michigan."

Power plants. The Munster Times reports, in a story headlined "NIPSCO takes bite out of pollution: IDEM calls effort 'big step' in meeting EPA standards":
New pollution control equipment at Northern Indiana Public Service Co. power plants are helping kick the door open to economic development in Northwest Indiana. More than $200 million in smog-reduction equipment is getting its first full summer workout at all three NIPSCO coal-fired generating stations, an important step in helping the region attain compliance with U.S. EPA Clean Air standards. The equipment is expected to reduce nitrogen oxide emissions, a major smog contributor, by up to 70 percent.
This story today in the Mt. Carmel, Illinois Daily Republican Register details at lenth the efforts being made "as Cinergy officials search for the answer to eliminate the acid aerosol emissions coming from units 4 and 5 at the power plant [the Gibson Generating Station]":
Representatives of Cinergy first made city officials aware of the emissions in late June, nearly a month after new pollution controls went online, designed to reduce nitrogen oxide emissions in accordance with a May 31 federal deadline. Those pollution controls, selective catalytic reduction (SCR) units, however, also came with what plant officials have called an "unintended side-effect" - creation of sulfur trioxide which, when mixed with water, becomes sulfuric acid.

Posted by Marcia Oddi on Wednesday, July 21, 2004
Posted to Environmental Issues

Indiana Decisions - Two Court of Appeals Decisions Today

Roland Barker v. State of Indiana (7/21/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge

Roland Barker appeals the post-conviction courts denial of his petition for post-conviction relief. Barker raises one issue, which we restate as whether the post-conviction properly concluded that Barkers guilty plea was entered into knowingly, intelligently, and voluntarily. We affirm. * * *
DARDEN, J. and ROBB, J. concur
Mark McDillion v. Northern Indiana Public Service Company (NIPSCO) (7/21/04 IndCtApp) [Procedure]
Vaidik, Judge
Mark McDillon appeals the jury verdict awarding Northern Indiana Public Service Company (NIPSCO) $12,440.29 for damages incurred as a result of McDillons vehicle colliding with one of its utility poles. NIPSCO cross-appeals, claiming that the trial court erroneously set aside the default judgment entered against McDillon and erroneously granted McDillons untimely demand for a jury trial. Because we find that the jury may have predicated its verdict on a nonparty instruction erroneously given to the jury, we reverse. Although NIPSCO argues that its default judgment should be reinstated if we reverse, we find that NIPSCO waived its challenge to the setting aside of the default judgment by failing to perfect a timely appeal. Additionally, contrary to NIPSCOs contention, we find that McDillon timely requested a trial by jury. Accordingly, we remand for a jury trial. * * *
Reversed and remanded.
SULLIVAN, J., and MAY, J., concur.

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

Law - Downward departures and Blakely

The ruling by a 7th Circuit panel today in USA v. Keller (see entry immediately below) deals with a downward departure in sentencing. The panel reversed "the district courts grant of a downward departure pursuant to U.S.S.G. 5K2.12." No mention was made of either Blakely or the 7th Circuit's own recent decision in Booker.

Recall that the Judge Presnell of the MD Florida stated yesterday in the introduction to US v. King: "The Government contends that Blakely does not impact these sentences because it does not seek any sentencing enhancements. For the reasons stated below, however, Blakely does impact these sentences, as well as every other sentence this Court will hand down hereinafter."

But see this footnote 17 (p. 31) from a 2-1 ruling just issued today by the 9th Circuit (US v. Ameline):

As Blakely only concerned the burden of proof required to enhance a sentence, we do not address its application to downward departures. As Amelines Blakely rights were not implicated by the district courts grant of a three level downward departure for acceptance of responsibility, upon remand, the district court retains discretion to depart downward.
[Late afternnon update] After looking at the just-posted materials re the Solicitor General's petition to the Supreme Court in Booker and Fanfar, I can see that the underlying question, answered differently in each of the three cases cited above, is that of severability in the event the Court acts to invalidate the Guidelines. [See this post from SCOTUSblog.]

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

Indiana Decisions - Three 7th Circuit Opinions Posted Today

USA v. Keller, Brian (7/21/04)

Before RIPPLE, MANION and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Brian Keller was indicted on one count of being a felon in possession of a weapon in violation of 18 U.S.C. 922(g). The district court denied Mr. Kellers motion to dismiss the indictment. After his conviction, Mr. Keller was sentenced to seventy months imprisonment. Mr. Keller now appeals the district courts denial of his motion to dismiss the indictment; the Government cross-appeals the district courts grant of a downward departure to Mr. Keller. For the reasons set forth in the following opinion, we affirm Mr. Kellers conviction, but vacate the district courts sentence and remand for resentencing. * * *

However, if 5K2.12 were to operate as an automatic sentence reduction for convicted felons who find themselves in dangerous surroundings, invocation of the guideline would render nugatory much of the Congressional determination that felons ought not be permitted to carry firearms. * * * At this juncture, we cannot, and need not, delineate the precise factual circumstances that might warrant a 5K2.12 departure in the context of a 922(g)(1) violation. We think it clear, however, that such a departure was not appropriate here. Mr. Kellers fear of gang-related violence, in the absence of a more specific threat, of a more immediate harm or of evidence that Mr. Keller considered alternatives to arming himself, simply does not warrant a 5K2.12 departure.

Conclusion. For the reasons set forth above, we affirm Mr. Kellers conviction, but we reverse the district courts grant of a downward departure pursuant to U.S.S.G. 5K2.12. We therefore vacate Mr. Kellers sentence and remand for resentencing consistent with this opinion.
AFFIRMED in part; VACATED and REMANDED in part.

[Emphasis added. Note that this decision makes no reference to either Blakely or Booker.]

Sharif, Richard v. Wellness Int'l Network (ND Ill.)

Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case concerns two procedural decisions issued by District Judge Samuel Der-Yeghiayan. The first arises from the courts dismissal of a suit for want of prosecution after plaintiffs counsel failed to appear for a hearing date. Second, the court denied Wellness International Networks motion to compel arbitration. We consolidated both appeals. * * *

In sum, in merely setting aside plaintiffs concerns regarding statute of limitations and imposing what potentially could be an extremely harsh sanction, Judge Der-Yeghiayan abused his discretion and plaintiffs are entitled to have the dismissal order vacated. * * *

For the foregoing reasons, we VACATE the dismissal for lack of prosecution. Further, we REVERSE the courts denial of WINs motion to compel arbitration and REMAND with instructions to order arbitration on those claims subject to arbitration.

USA v. Miscellaneous Firearms (CD Ill.)
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
EVANS, Circuit Judge. In this appeal, we consider the meaning of the word any the last time it appears in a federal statute dealing with the forfeiture of firearms. The underlying facts, which we can mercifully shorten, are that Joseph Fleischli was convicted of being a felon in possession of firearms, actually a bevy of firearms, and we rejected his challenge to the conviction last year. * * *

Mrs. Fleischli asserts that any action or proceeding in the last sentence means all actions, thus necessitating the commencement of both administrative and judicial forfeiture actions within the 120-day statutory period. On the other hand, the government claims that any means one of a group, which would mean that, so long as the administrative action is begun within 120 days, the government can commence judicial proceedings at any time thereafter. * * *

[W]e conclude that the time limitation in 924(d)(1) merely requires the United States to initiate either an administrative forfeiture proceeding or a judicial forfeiture action within 120 days of seizure.

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

Indiana Decisions - Papers comment on Court of Appeals DUI reversal

Two NW Indiana papers have stories this morning about the Indiana Court of Appeals ruling Monday (see this Indiana Law Blog entry - the fourth decision in the entry) in the case of Charles Schlesinger v. State of Indiana (7/19/04 IndCtApp), where the Court reversed the trial court decision on the basis that "the trial court erred in admitting the results of a hospital toxicology blood test where the test was obtained without a warrant and was not necessary for Schlesingers medical care."

The Gary Post-Tribune reports:

The Indiana Court of Appeals has reversed the drunken driving conviction of suspended Valparaiso police officer Charles Schlesinger. The attorney generals office, however, will appeal the ruling to the Indiana Supreme Court, according to Stacy Schneider, press secretary for Attorney General Steve Carter. * * *

Appeals court judges said that although Schlesinger told Porter County police Officer Curt Jones he had consumed a couple of alcohol drinks an hour before driving, he passed field sobriety tests administered by Jones.

Schlesinger was treated at Porter Valparaiso Hospital Campus, formerly Porter Memorial Hospital, for relatively minor injuries. Two blood samples were taken,with one sent to the Indiana Department of Toxicology for analysis, while the hospital analyzed the other sample.

Schlesinger, through appeal attorney Mitchell Peters of Merrillville, maintained the trial court erred in admitting the result of the hospital blood sample. Police officers did not have a warrant to obtain a sample of Schlesingers blood, the appeals court judges said. The appeals court opinion said Jones lacked probable cause to order a blood draw. Schlesinger passed field sobriety tests administered by Jones, the judges said.

Schlesinger testified Jones did not ask for his consent and he did not sign a written consent form for the blood draw. The judges also said there was no evidence in the record that the blood alcohol content test was performed for medical reasons.

Deputy Prosecutor Blair Todd said the appeals court judges are creating new law. In the past, a hospital could take blood samples for their purposes and police or prosecutors could get a judge to issue a subpoena to obtain a blood sample for testing for blood-alcohol level, Todd said. Medically necessary conditions have now been added, Todd said.

The Munster Times story reports:
While Schlesinger is now cleared of all the charges stemming from the May 10, 2002, incident, he will not be returning to work anytime soon.

The Indiana Attorney General's Office will seek to transfer the case to the Indiana Supreme Court during the next 30 days, said press secretary Staci Schneider.

Schlesinger was cleared at trial of four of five drunken-driving charges stemming from an early morning accident at Ind. 49 and County Road 400 North. He and his wife were injured, along with two others in a second car.

The appellate court reversed the remaining misdemeanor conviction, for which he was sentenced to a year of unsupervised probation, community service and alcohol treatment. He has remained on unpaid leave from the police department.

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

Indiana Law - Impact of Blakely on State Courts

Sentencing Law & Policy Blog this morning has a pointer to a very useful 28-page report, issued Monday, July 19th by the National Center for State Courts: "Blakely v. Washington: Implications for State Courts."

One important inclusion is a list of the state courts affected by Blakely. Stories I've seen in the past have included vague references such as "it is estimated that a dozen state courts are affected ..."). Here is information from pp. 3-4 of the report:

States with presumptive sentencing guidelines, determinate sentencing statutes, or presumptive sentencing terms that may be affected include:
New Mexico
North Carolina
* * * [P]resumptive sentences within state guidelines are not affected by Blakely; it is the upward departure from such guidelines (or the addition of any enhancement) that is unconstitutional.
And on page 11 of the report:
Indiana is apparently not affected by Blakely, said a spokesperson for the states attorney general.
This corresponds to the only other statement about the potential impact of Blakely on Indiana state courts, I've seen, a brief report in the Gary Post Tribune reported here in the Indiana Law Blog on June 26, 2004.

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

Tuesday, July 20, 2004

Law - Blakely and Judge Cedarbaum

Douglas Berman has a very interesting post late this afternoon re "the first on-the-record Blakely ruling of note from Florida, ... in US v. King, No. 6:04-cr-35 from United States District Judge Gregory A. Presnell of the Middle District of Florida (Orlando division)." Berman quotes this passage from the opinion:

The suggestion that courts use the Guidelines in some cases but not others is at best schizophrenic and at worst contrary to basic principles of justice, practicality, fairness, due process, and equal protection. Courts simply cannot apply a determinate sentencing code to one defendant whose sentence raises no judicial fact-finding enhancement issues and a separate discretionary scheme to another defendant whose sentence does raise enhancement issues. Such a structure not only seems to violate equal protection principles but would lead to the perverse result that both Government and criminal defense attorneys would plot to finagle their way into the determinate system or indeterminate system depending on the judge and the various factors relevant to the particular defendants sentence.
with the comment that "Martha Stewart might have hoped [this point] would have been rendered a few days earlier."

Recall that, as reported by the AP at the time, "Stewart's lawyers had asked the judge to declare the federal guidelines unconstitutional based on a June 24 Supreme Court decision that said Washington state judges could not impose harsher sentences than state guidelines based on facts that had not been presented to a jury. [Judge] Cedarbaum, in a one-paragraph, handwritten opinion earlier this week, denied the motion, adding: 'The sentencing guidelines applicable to this case do not require any enhancement by the judge.'"

Judge Presnell, on the contrary, begins his Sentencing Memorandum Opinion in US v. King:

These are the first sentences imposed by this Court since the Supreme Courts ruling in Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004). The Government contends that Blakely does not impact these sentences because it does not seek any sentencing enhancements. For the reasons stated below, however, Blakely does impact these sentences, as well as every other sentence this Court will hand down hereinafter.

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

Indiana Decisions - Update on Judge Barker's Rulings

Earlier today I said I would post any additional information I received on the two Blakely-related oral rulings made by US SD Indiana Judge Sarah Evans Barker at the commencement of sentencing hearings.

I'm informed that only one transcript on one of these sentencings has been prepared. It is in IP 03-199-CR, US v. Peter Brown. I also was provided with contact information for the Court Reporter who prepared a transcript of the Brown sentencing hearing (7/9/04), which I can make available if anyone needs to order a copy.

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

Indiana Decisions - Six Court of Appeals and One Tax Court Decision Posted Today

John Gall v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge

John Gall (Gall) was convicted of dangerous possession of a firearm, as a Class A misdemeanor, two counts of criminal recklessness, as Class D felonies, and attempted murder, a Class A felony, by a jury in the Madison Superior Court, and sentenced to thirty years executed. Gall appeals, raising the following combined and restated issues: Whether Gall was improperly charged under Indiana Code section 35-47-10-5; Whether sufficient evidence was presented to support Galls convictions of dangerous possession of a firearm and attempted murder; Whether the trial court improperly excluded testimony from H.S. as to Galls intent; and, Whether the trial court abused its discretion in sentencing Gall.

Concluding that Gall was properly charged, that sufficient evidence supported his convictions, that the trial court properly excluded H.S.s testimony, and that the trial court did not abuse its discretion when it sentenced Gall, we affirm. * * *

BARNES, J., and CRONE, J., concur.

James Thomas Myers v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Mathias, Judge
James Myers (Myers) Motion to Suppress was denied in Elkhart Circuit Court. Myers appeals, presenting the following restated issue for review: Whether the search of Myers vehicle was constitutionally permissible. Concluding the search of Myers vehicle was constitutionally permissible, we affirm. * * *

The search of Myers vehicle was constitutionally permissible under the Fourth Amendment and Article One, Section Eleven of the Indiana Constitution. Affirmed.
BARNES, J., and CRONE, J. concur.

Steven Fields v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure]
Robb, Judge
Steven Fields seeks rehearing of our opinion issued in Fields v. State, 807 N.E.2d. 106 (Ind. Ct. App. 2004). Although we affirm our original opinion in all respects, we write on rehearing to clarify our holding regarding the twenty-minute deprivation period required before a chemical breath test can be administered. * * *

BAKER, J. concurs.
RILEY, J. would deny the petition.

State of Indiana v. Alicia A. Neanover (7/20/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Vaidik, Judge
Case Summary. The State appeals the trial courts grant of a Motion to Suppress Evidence. Because we find that the officers warrantless search and seizure of garbage from an open landing on the top floor of an apartment building violated both the federal and state constitutions, the trial courts ruling was not contrary to law. We therefore affirm. * * *

The circumstances of this casegarbage seized without a warrant from the open landing of an apartment building, where it had not been abandoned for collection and was not readily accessible to the publicpresent a question of first impression in Indiana. The State contends that the warrantless search and seizure of Neanovers garbage from the open landing of her apartment building was constitutionally permissible under both the Fourth Amendment to the United States Constitution and Article I, 11 of the Indiana Constitution.

Sandra Wilson v. Royal Motor Sales, Inc. [Contracts]
May, Judge
[Issue] [W]hether the trial court erred when it determined as a matter of law that Royal had disclaimed all implied warranties. We affirm.

The facts most favorable to Wilson, the non-moving party, follow. On May 26, 2001, Wilson purchased a 2000 Daewoo Nubria from Royal. The window sticker on the car did not indicate the car was being sold As Is, rather it indicated it was being sold with a factory warranty. The purchase agreement contained a warranty disclaimer at the bottom of the page; however, Royal did not have Wilson sign the space indicating the car was being SOLD WITH NO WARRANTY. Wilsons signature on the purchase agreement acknowledged that she had read the back of the purchase agreement, which included the following language: THIS VEHICLE IS SOLD AS IS NOT EXPRESSLY WARRANTED OR GUARANTEED AND THE SELLER HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. * * *

Wilson claims the window sticker contradicts the language in the purchase agreement because Royal had not marked the box on the window sticker indicating the Nubria was being sold As Is. The flaw in Wilsons reasoning is the purchase agreement also did not indicate the Nubria was being sold without any warranty. Rather, the purchase agreement indicated that if the car was being sold with a factory warranty, that warranty was made by the manufacturer only and did not bind the dealer unless the parties signed an additional dealer warranty or service contract. If no additional contract was signed, then the dealer disclaimed all express or implied warranties, including the implied warranty of merchantability. The language on the window sticker, while perhaps ineffective as a disclaimer of implied warranties if considered alone, did not contradict the language in the purchase agreement.

Accordingly, we decline Wilsons invitation to reweigh the evidence. See, e.g., DeVoe Chevrolet-Cadillac, Inc. v. Cartwright, 526 N.E.2d 1237, 1240 (Ind. Ct. App. 1988) (declining to override dealers disclaimer of implied warranties based on alleged express warranty when record contained no evidence dealer made any express warranty). The trial court did not err when it granted Royals motion for summary judgment. Affirmed.
SULLIVAN, J., and VAIDIK, J., concur.

BP Products North America, Inc. v. Board of Commissioners of Lake County (7/20/04 IndCtApp) [Procedure]
Baker, Judge
Appellant-plaintiff BP Products North America, Inc. (BP) appeals the trial courts entry of summary judgment in favor of appellee-defendant the Board of Commissioners of Lake County et al., (Lake County) regarding the issuance of a writ of production compelling BP to produce a number of the corporations books and records that Lake County had requested for the purpose of conducting an audit. Similarly, BP contends that the trial court erred in concluding that Lake County had the power and jurisdiction to conduct audits of BPs business property in light of the applicable statutes of limitation. Concluding that the trial court acted within its discretion in issuing the writ of production to BP, and further finding that BPs request for declaratory relief was properly denied, we affirm the entry of summary judgment for Lake County. As a result, we also remand this cause to the trial court with instructions that it dissolve the stay that had been issued pending the resolution of this appeal with regard to the writ of production. * * *

CONCLUSION. In light of our discussion above, we conclude that the trial court did not abuse its discretion in issuing the writ of production, and it was appropriate to deny BPs request for declaratory relief that sought to block Lake County from inspecting the records that were subject to the writ. Thus, we affirm the judgment of the trial court and remand this cause with instructions for the trial court to dissolve the stay that this court had granting pending the resolution of this appeal. Affirmed and remanded.
FRIEDLANDER, J., and BARNES, J., concur.

Terry L. & Kimberly Clarkson v. Department of Local Government Finance (719/04 IndTaxCt) [Valuation of Property under Land Order]

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

Law - Environmental Disclosure via SEC regs

"ENVIRONMENTAL DISCLOSURE: SEC Should Explore Ways to Improve Tracking and Transparency of Information," is the title of this 80-page report issued this month by the GAO (United States Government Accountability Office). This and several other reports are discussed in this article on SocialFunds.com.

A second story, this one from Reuters, reports that:

NEW YORK, July 15 - U.S. financial regulators have agreed to improve the way they track disclosure of corporate environmental costs, according to a report by the U.S. Government Accountability Office (GAO).

In the 74-page report, the GAO recommended and the U.S. Securities and Exchange Commission (SEC) agreed to creation of a searchable database at its Web site so investors and analysts can track environmental liabilities like clean-up costs, fines, and potential risks from pollution and hazardous materials.
The changes would also help the SEC assess how well it enforces environmental disclosure and adjust its reporting requirements, said the GAO, the investigative arm of the U.S. Congress.

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

Indiana Decisions - Three from the 7th Circuit Today

USA v. Booker, Freddie J.

This is, of course, the now well-known July 9th decision of the 7th Circuit holding that the sentencing guidelines violate the 6th amendment. It has been posted again today, presumably because of minor, non-substantive amendments made, according to the opinion, July 12th.

Given this Lyle Denniston article today in the NY Times, the case may soon be before the Supreme Court:

Paul D. Clement, the acting United States solicitor general, has approved taking two cases swiftly to the Supreme Court, according to a Justice Department official who spoke on the condition of anonymity. One would be a direct appeal from a ruling by a federal trial judge in Portland, Me. [Fanfan], bypassing the federal appeals court in Boston. The other would be a regular appeal from a decision by a federal appeals court in Chicago [Booker].
[More] See this post from Blakely Blog for what precisely was modified in Booker, along with more about the anticipated cert petition.

Conner, Kevin A. v. McBride, Daniel R. (SD Ind., Judge Barker)

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. This habeas corpus appeal comes to us following Kevin Conners October 7, 1988 conviction for three murders in Indiana. The jury recommended death for the killings and, subsequently, the state court judge sentenced Conner to two death sentences and a term of 60 years on November 3, 1988. After exhausting his state remedies [cites omitted], Conner then filed a petition for federal habeas corpus relief, which the district court denied, Conner v. Anderson, 259 F. Supp. 2d 741, 769 (S.D. Ind. 2003) (Conner III). * * *

III. Conclusion. To summarize, the district courts denial of Conners petition for a writ of habeas corpus as to (1) the admissibility of his confession; (2) the ex parte jury communication; and (3) the assistance of trial counsel is AFFIRMED.

USA v. Sims, Rufus (ND Ill.)
Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Convicted money launderer Rufus Sims (see United States v. Sims, 144 F.3d 1082 (7th Cir. 1998)) filed a motion under Fed. R. Crim. P. 41(g) (formerly 41(e)) in the district court in which he had been convicted asking for the return of seized property. He concedes that most of the property identified in the motion was properly forfeited, but continues to claim entitlement to property that he asserts was seized but never forfeited. * * *

[T]he government eventually learned that a bit more money had actually been seized than was identified in the forfeiture order$14,172 more, to be exact. Assuming that this money was never forfeited (the record is unclear whether it was), it qualifies as property that has been seized but not forfeited. But there is a hitch: Sims did not list the $14,172 either in his Rule 41(g) motion or in any other filing in the district court. He listed it for the first time in his brief on appeal. That of course was too late. The claim for the money is thusforfeited. AFFIRMED.

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

Indiana Decisions - More on Judge Barker's SD Ind. Blakely Rulings

Per these earlier entries (here and here) on the report in the Evansville paper that "Twice in the last two weeks, U.S. District Judge Sarah Evans Barker of Indianapolis has ruled the federal sentencing guidelines are unconstitutional and cited the Blakely ruling in her decisions," I contacted the Clerk's Office of the S.D. Indiana yesterday. Much thanks to Judge Barker's office for this response:

Ms. Oddi, in response to your question, Judge Barker tells me that these were rulings made orally at the bench at the commencement of the sentencing hearings. Because they were made applicable only to the single cases before Judge Barker at the time (in light of the current state of flux in the law), they are only available by accessing the transcripts from the court reporter(s).
Judge Barker's secretary also referred me to a source for the names of the cases -- I will insert that information here when I receive it.

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

Monday, July 19, 2004

Indiana Decisions - Transfer List for Week Ending July 16, 2004

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

Posted by Marcia Oddi on Monday, July 19, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - A number of Court of Appeals Opinions Today

Tammy Kaser, et al. v. Jerry Barker, et al. (7/19/04 IndCtApp) [Statutory Construction]
Kirsch, Chief Judge

Tammy Kaser and the Fraternal Order of Police Lodge No. 86, Inc. (collectively Kaser) appeal the trial courts entry of summary judgment in their suit against Jerry Barker, the Chief of the Indianapolis Police Department, the Indianapolis Civilian Merit Board, and the City of Indianapolis (collectively the City). She argues that the trial court erred in interpreting the city ordinance governing promotions within the police department as giving the police chief and merit board discretion in selecting individuals for promotions. We affirm. * * *

Kaser contends that the trial court erred in interpreting the ordinance because it requires individuals to be selected for promotion based solely on their performance in the promotion process and does not give the police chief and merit board discretion in selecting individuals for promotions. * * *

We agree with Kaser that the statute appears to be intended to encourage promotion based on an objective merit system. However, the statute specifies that the opinion of the chief and merit board are also to be considered. Although we may review the power of the legislature to act, we must not evaluate the policies adopted by the legislature. Town of Porter v. Brandstetter, 770 N.E.2d 832, 836 (Ind. Ct. App. 2002), trans. denied. The right and responsibility to determine these public policies, and to adopt, improve, refine, and perfect legislation directed thereto, falls to the legislature, not the courts. Evans v. Yankeetown Dock Corp., 491 N.E.2d 969, 971 (Ind. 1986). Our role is to construe and apply these enactments so as to carry out legislative intent. Id. Regardless of the wisdom of the policy, the ordinance clearly gives the police chief and the merit board some input on the qualifications of the candidates for promotion. The trial court did not err. Affirmed.
NAJAM, J., and RILEY, J., concur.

Frank Wenning v. Lottie Calhoun (7/19/04 IndCtApp) [Real Estate; Remedies]
Kirsch, Chief Judge
Frank Wenning appeals the trial courts judgment ordering specific performance of a land sale contract executed between Wenning and Lottie Calhoun. He raises two issues for review, one of which we find dispositive: whether a trial court may order specific performance of a land contract where the contract does not specifically describe the land that is the subject of the contract. We reverse and remand with instructions. * * *

[Neither the oral contract nor the written agreement described the land being conveyed: "I, Frank Wenning, am saleing[sic] 3 acres of 28 acres to Lottie Calhoun with opion[sic] to buy more if desired. I am saleing[sic] at $3,000 a[sic] acre for a total of $9,000."]

Here, the only designation in the Contract of the land at issue is three acres of Wennings twenty-eight acres, plus the street address of 5910 W. Fairground Rd. There is simply no way for third parties to discern from this description precisely which three acres Wenning intended to convey. Accordingly, the contract is too indefinite to specifically enforce because it is impossible to determine how to enforce it.

This conclusion, however, does not end the analysis. Although Calhoun may not be entitled to specific performance, it does not follow that she has no remedy. Another contract remedy is rescission. Rescission of a contract is the annulling, abrogating, or unmaking of a contract. The remedy of contract rescission functions to restore the parties to their precontract position, that is, the status quo. Upon the rescission of a contract, a party must return the property received or the reasonable value thereof if return of the property is impossible. [cites omitted]

Here, rescission of the contract is appropriate. Calhoun is entitled to the return of all of the amounts she expended in reliance on the void Contract. The evidence at trial showed that Calhoun made numerous payments to Wenning and expended sums to have utilities connected and a driveway constructed. We remand to the trial court for a determination and entry of a judgment against Wenning in this amount. Reversed and remanded with instructions.
NAJAM, J., and RILEY, J., concur.

Ann Reyes Robbins v. Canterbury School, et al. (7/19/04 IndCtApp) [School Law]
Kirsch, Chief Judge
Mother and Jeffrey Schroeder (Father) are the divorced parents of A.R. In 1998, Mother enrolled A.R. at Canterbury School (School), a private school in Ft. Wayne, Indiana. A.R. attended School for several years, but in 2003, a dispute arose between School and Mother, apparently in regard to Schools provision of services to help manage A.R.s diabetes during the school day. As a result of this disagreement, the parties and their representatives exchanged a flurry of correspondence and telephone calls. These communications culminated in the Schools expulsion of A.R. as of March 10, 2003. Mother and Father then met with School officials to negotiate terms for A.R.s completion of the school year, and Mother drafted an Agreement memorializing the parties discussions.

On May 11, 2003, Father filed a formal complaint with the Board of Trustees of School regarding the Agreement. The Boards investigation produced a report, of which Mother received a copy in July 2003. Mother requested copies of the underlying documents cited in the report. School provided a number of documents, but Mother, apparently not satisfied, filed her Verified Petition to Compel Compliance with IC 20-10.1-22.4 et seq. demanding further access to A.R.s education records. School moved to dismiss based on Ind. Trial Rule 12(B)(6). The trial court granted the motion, and Mother now appeals. * * *

The trial court did not err. Affirmed.
NAJAM, J., and RILEY, J., concur.

Charles Schlesinger v. State of Indiana (7/19/04 IndCtApp) [Criminal Law & Procedure]
Kirsch, Chief Judge
Charles W. Schlesinger appeals from his conviction for operating a vehicle with a blood alcohol content of at least .08% but not more than .15%, a Class C misdemeanor, raising the following dispositive issue for review: whether the trial court erred in admitting the results of a hospital toxicology blood test where the test was obtained without a warrant and was not necessary for Schlesingers medical care. We reverse. * * *

In this case, the only charge upon which Schlesinger was convicted was operating with a blood alcohol content over .08% but less than .15%. Schlesingers counsel advocated for the exclusion of the results of the test of the Hospital sample, but did not prevail. The trial court admitted the results over his objection, and the jury therefore heard evidence that these test results showed a blood alcohol content of .13%. After the admission of these results, Schlesingers counsel admitted the results of the test of the State sample. The State sample was inconsistent with the Hospital sample results and was admitted in an effort to cast doubt on the reliability of the Hospital test results. But for the erroneous admission of the Hospital test results, the State sample results would not have been admitted. Under these circumstances, we cannot conclude that the error in the admission of the results was harmless. See id. (finding erroneous admission of blood alcohol test not harmless, even though trial court properly admitted results of second test). Reversed.
NAJAM, J., and RILEY, J., concur.

Pamela E. Bryant v. Review Board of Indiana and Hoechst Marion Roussel, Inc. (7/19/04 IndCtApp) [Administrative Law]
Barnes, Judge
Pamela Bryant appeals the decision of the Review Board of the Indiana Department of Workforce Development (the Board) with respect to her claim for unemployment benefits. We reverse.

Issue. The dispositive issue for our review is whether the administrative law judge (ALJ) erred by granting Hoechst Marion Roussel, Inc.s (Hoechst) request to reinstate its appeal from the order granting Bryant unemployment benefits. * * *

There is no written motion or request in the record filed by Hoechst to obtain the reinstatement. As a result, there is no explanation of the reason justifying the reinstatement. It is impossible, therefore, to determine whether good cause existed to warrant the reinstatement. The Board concedes that the record is silent as to why the ALJ reinstated the appeal. Furthermore, Bryant did not receive any notice that Hoechst had requested a reinstatement. Consequently, Bryant had no opportunity to respond to the request or to object to the reinstatement. Based on this record, we cannot find a basis for the reinstatement or conclude anything other than that the reinstatement was an abuse of discretion. Even if the ALJ had the discretion to grant a reinstatement here, it was still obligated to follow the dictates of fairness by requiring Hoechst to demonstrate good cause and by allowing Bryant an opportunity to respond to the request before granting it. The ALJ did not, and, therefore, we find no basis for the reinstatement of the appeal.

Conclusion. Because the record provides no basis for the reinstatement, we conclude that the ALJ erred when it reinstated Hoechsts appeal. We reverse the reinstatement. Reversed.
CRONE, J., and BAKER, J., concur.

Robert G. Keys v. State of Indiana (7/19/04 IndCtApp) [Criminal Law & Procedure]
KIRSCH, Chief Judge
Robert G. Keys appeals his conviction for operating a vehicle with a blood alcohol content of over .08% and less than .15%, a Class C misdemeanor, raising the following issue for review: whether exposure to second-hand cigarette smoke within twenty minutes of the administration of a chemical breath test invalidates the test results as a matter of law. We affirm. * * *

The regulation, however, specifically spells out prohibited activities: eating, drinking, smoking, and placing foreign substances in the mouth. It does not prohibit exposure to second-hand smoke. Presumably, because certain activities are specifically mentioned, had second-hand smoke exposure been intended to be a prohibited activity, it would have been mentioned as well. See State v. Willits, 773 N.E.2d 808, 813 (Ind. 2002) (enumeration of certain items or words creates implication that other items or words not so specified or enumerated are excluded). Exposure to second-hand smoke is not the equivalent of smoking and is not specifically prohibited. Accordingly, the test results were admissible, and the trial court did not err.

This conclusion notwithstanding, Keys could have challenged the evidence on reliability grounds by presenting evidence, such as expert testimony, that showed that exposure to second-hand smoke renders chemical breath test results unreliable. He failed to do so. Although much has been written about the implications of exposure to second-hand cigarette smoke, we have no evidence in the record before us of any reason such exposure would interfere with a chemical breath test. Nonetheless, we note that it would be a better practice for law enforcement officers transporting suspects for chemical breath tests to refrain from smoking. Affirmed.
NAJAM, J., and RILEY, J., concur.

Doris A. Sadler, et al. v. State of Indiana, et al. (7/19/04 IndCtApp) [Election Law; Statutory Construction]
CRONE, Judge
[Issues] I. Whether the trial court erred in enjoining the Board from using an office block ballot format with its optical scan voting system; and II. Whether the trial court erred in enjoining the Board from including the words The A Team within a ballot device used to designate candidates of the Marion County Republican Party. * * *

[I Ballot Format] In sum, we affirm the trial courts grant of the preliminary injunction with respect to the Boards use of an office block ballot format. Given our determination that the Board failed to assess the practicability of using a party-column ballot format, rather than erred in making such an assessment, issues regarding the meaning of practicable and the standard by which a county election board should assess practicability are not squarely before us. It seems clear, however, that a board should develop a record of its deliberations regarding ballot format as a means of forestalling possible challenges and preparing for any challenges that do arise. The legislatures stated preference for the party-column ballot format may be likened to a rebuttable presumption in its favor, and a county election board must overcome that presumption with sufficient proof of that formats impracticability before it may use another ballot format with a given voting system in a given election.

[II. Republican Party Device] * * * Bearing in mind the principles of statutory interpretation, we conclude that only a state political party chairman may file a copy of a device with a county election board. We first observe that subsection (d) of the statute specifically refers to state political party chairmen, whereas subsection (e) does not specifically refer to county political party chairmen. See J.A.W. v. Marion County Dept of Pub. Welfare, 687 N.E.2d 1201, 1210 n.21 (Ind. 1997) (applying rule of ejusdem generis, which provides that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned) (quoting Blacks Law Dictionary 517 (6th ed. 1990)). Our interpretation is further buttressed by subsection (e)s requirement that a copy of a device be filed in each county in which the political party will be placed on the ballot; it would be absurd to suggest that a county political party chairman possesses this statewide authority.

Accordingly, we conclude that Keeler had no authority to file a copy of the A Team device in the first place, and that the likelihood of the state Republican party chairman filing a copy of a similar device in the future is so remote as to be purely speculative. Because this issue is both moot and unlikely to recur, we decline to address it. Affirmed.
BAKER, J., and BARNES, J., concur.

[More] The Indianapolis Star has a story on this ballot ruling this afternoon, titled "Court only fuels ballot controversy: Ruling on what Marion County election ballots should look like leaves Democrats, Republicans squabbling over its interpretation."

[Update 7/20/04] Here is the updated Star story from today's paper.

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

Indiana Decisions - Two SD Ind. Blakely rulings

I have contacted the Clerk's Office of the S.D. Indiana to obtain the two rulings referred to in the Evansville paper this morning (per this earlier ILB entry):

Twice in the last two weeks, U.S. District Judge Sarah Evans Barker of Indianapolis has ruled the federal sentencing guidelines are unconstitutional and cited the Blakely ruling in her decisions.
It may be that her rulings are not reflected in written opinions.

Meanwhile, USSGuide.com has a page on the 7th Circuit's Court of Appeals and District Court rulings.

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

Indiana Decisions - Four 7th Circuit Opinions Posted Today

Sembos, Athanasios v. Philips Components (ND Ill.)

Before RIPPLE, MANION, and DIANE P. WOOD, Circuit Judges.
MANION, Circuit Judge. Athanasios Sembos sued his former employer, Philips Components, for age discrimination after Philips fired him. Sembos also alleged state law claims for breach of contract and promissory estoppel. The district court granted Philips summary judgment. Sembos appeals. We affirm.
USA v. Johnson, Tery L. (ND Ill.)
Before FLAUM, Chief Judge, and BAUER and MANION, Circuit Judges.
MANION, Circuit Judge. 43-year-old Tery Johnson, while exploring pornographic corners on the Internet, met who he thought was a 14-year-old girl, Dena. After some sexually explicit chats he set up a rendezvous with Dena at a Chicago restaurant. But the person he encountered at the meeting place was a female police officer and the Dena he corresponded with on the Internet turned out to be a detective with the Cook County Sheriffs Department. Johnson conditionally pleaded guilty to three counts involving his attempt to entice a minor to engage in sexual activity and to produce visual depictions of such activity. Johnson appeals the district courts denial of his motions challenging the constitutionality of 18 U.S.C. 2251 for lacking a scienter requirement and for being overbroad in violation of the First Amendment. He also appeals the district courts denial of his motion challenging language in the indictment stating that he believed Dena was a minor. We affirm the district court.
Lindell, Nathaniel A v. Litscher, Jon E. (WD Wis.)
Before RIPPLE, KANNE, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Nathaniel Lindell, an inmate at the Wisconsin Secure Program Facility (WSPF), sued prison officials and staff alleging numerous civil rights violations. * * *

III> For these reasons, the district courts dismissal of Lindells free-speech claim premised on the defendants confiscation of postcards from his cell is VACATED, and that claim is REMANDED for further proceedings. The district court is also directed to redraft its injunction to conform with the requirements of 18 U.S.C. 3626(a)(1)(A) and this opinion. In all other respects the judgment of the district court is AFFIRMED.

Clark, Marilyn v. Lacy, Alan (ND Ill.)
Before FLAUM, Chief Judge, and DIANE P. WOOD and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. In this case we are asked to consider how the Colorado River abstention doctrine applies to a derivative shareholder suit brought in federal court that involves the same factual predicate, most of the same defendants, and fundamentally the same legal issues as a derivative shareholder suit brought by a different plaintiff shareholder in New York state court. Pursuant to Colorado River, the district court stayed this action in favor of the state proceeding. For the reasons stated in this opinion, we conclude that the district court did not abuse its discretion in granting the stay.

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

Environment - Indianapolis switch from septics to sewers

Yesterday's (Sunday's) Indianapolis Star had a neighborhood opinion piece on the "Burdensome switch from septic to sewer." Some quotes:

Indianapolis is the only major city in the United States that is replacing private septic systems with municipal sanitary sewers and requiring property owners to pay most of the cost. There are about 30,000 septic tank systems in Marion County, mostly in outlying areas, but some are in Center Township. Of that number, 18,000 have been classified by the Marion County Health Department as community health risks; they must be replaced.

The city-county government is utilizing an Indiana statute, the Barrett Law, to replace septic sewer systems. Under this law, homeowners may be assessed up to 10 percent of the value of their property to bring a municipal sewer through a street into the owner's neighborhood. Depending on the size of the project, it could cost between $7,000 and $20,000 or more per homeowner.

This is not the only cost to the property owner. Additional outlays include the cost of the sewage line from the house to the street; having the septic tank emptied and filled with dirt, sand or gravel; and if the house has a basement with a restroom, the owner may be required to install a holding tank and pump.

Utilizing the Barrett Law is destructive to neighborhoods and is adding to the number of homes in foreclosure. Of the projects under the Barrett Law, 25 percent of the homes have been foreclosed. Many of the people living in these homes are senior citizens who have been there for decades.

More from the piece:
Local government officials must treat this issue as a community problem, not a property-owner problem. In mid-November 2003, former City-County Councilor Beulah Coughenour proposed an ordinance that would have created funds and replaced the Barrett Law. The Public Works Committee chairman at that time refused to allow a vote, so the ordinance was tabled. Committee members did not even take public comments from 400 citizens who attended the hearing.

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

Indiana Courts - Impact of Blakely in Indiana Reported

An important story today in the Evansville Courier&Press -- and the first major story on this topic I've seen in an Indiana paper -- reports on the impact of the Blakely ruling on Indiana federal courts. Some quotes from this lengthy story (emphasis added):

Federal courts across the country, including those in Kentucky and Illinois, are in a state of flux due to the Blakely ruling. The 6th Circuit Court of Appeals, which includes federal appeals from Kentucky, ruled the Blakely decision does apply and said the federal sentencing guidelines should be used only as suggested recommendations, not a mandatory formula.

Meanwhile, the 7th Circuit Court of Appeals, which hears appeals from Indiana and Illinois [and Wisconsin], also said the decision by the high court applies to the federal guidelines and has ruled their use unconstitutional. But the federal 5th Circuit Court of Appeals, which hears appeals from Texas, Louisiana and Mississippi, recently ruled the Blakely decision doesn't apply to federal sentencing guidelines and gave its blessing to the status quo.

Twice in the last two weeks, U.S. District Judge Sarah Evans Barker of Indianapolis has ruled the federal sentencing guidelines are unconstitutional and cited the Blakely ruling in her decisions.

Young has yet to announce how he'll interpret the Blakely ruling. But both Barker and Young have been publicly critical of the sentencing guidelines, as have several Supreme Court justices.

They complain that the guidelines have virtually stripped judges of their ability to make discretionary decisions about criminal sentences. The guidelines force them to follow the complicated, points-based system. It requires a judge to set a sentence based on aggravating and mitigating factors that are not routinely considered by a jury during a trial or included as essential elements in a plea agreement.

Judges complain the guidelines have put too much power in the hands of prosecutors and force judges to impose unduly harsh sentences. "Cookie-cutter justice is no justice at all,'' said Barker. Without any clear guidance from the Supreme Court, her colleagues are left to make their own decisions on how to interpret the ruling. During a recent sentencing hearing in Indianapolis, U.S. District Judge Larry J. McKinney kept a portion of the guidelines, but tossed out the part that had to do with enhanced sentences based on aggravating factors.

Note: I've checked the SD Ind. site - the two Judge Barker rulings referred to have not been posted. Here is the ILB's 7/9/04 report on the 7th Circuit's ruling in U.S. v. Booker. For other ILB Blakely entries, type "Blakely" (no quotes) in the search box in the right column. And for "all Blakely, all the time" go to the excellent Sentencing Law & Policy blog.

The Wall Street Journal this morning (paid subscription only) has a piece indicating just how important Professor Berman's sentencing blog has become in tracking Blakely's impact. It is on page B1 and headlined "Law Professor's Web Log is Jurists' Must-Read".

Posted by Marcia Oddi on Monday, July 19, 2004
Posted to Indiana Courts

Indiana Law - State should be proud of Boatwright's job

"State should be proud of Boatwright's job: He tried to give the state a sensible fireworks policy" is the headline to this opinion piece in Sunday's Marion Chronicle Tribune. Some quotes:

You have to hand it to Tracy Boatwright, who recently retired after 11 years as state fire marshal. No one can accuse the former Marion firefighter, city council member and state representative of sugar-coating things or pulling any punches. * * * Boatwright invested a great deal of energy trying to enforce the current state law and trying to convince the General Assembly to write a sensible law governing fireworks sale.

The fireworks industry tied up enforcement efforts in court, and the General Assembly essentially gave Boatwright a blank stare. It had already given the state a fireworks law that could have come from the world of Alice in Wonderland.

The state's current law allows the sale of powerful, dangerous and otherwise illegal fireworks so long as buyers promise to use them outside the state or at certain designated sites. The law is widely ignored. * * *

Just a few days before Boatwright retired, he lost another court case when Celebration Fireworks convinced the Indiana Court of Appeals that more than $300,000 in fees charged by Boatwright were illegal. Boatwright's office had required wholesalers to pay a $1,000 fee for each location they operated, which cost Celebration Fireworks $306,000 from 1991 to 1994. In its lawsuit, originally filed in 1995, Celebration argued that state law required just one $1,000 fee per company. The fire marshal's office has since stopped assessing multiple-site fees.

Indiana Law Blog reports on the Celebration Fireworks decisions may be found at 6/26/04 and 6/25/04.

Posted by Marcia Oddi on Monday, July 19, 2004
Posted to Indiana Law

Sunday, July 18, 2004

Environment - EPA "significantly overstated the environmental achievements" re Chesapeake Bay cleanup

"Bay Pollution Progress Overstated: Government Program's Computer Model Proved Too Optimistic" is the headline to this page one story today in the Washington Post. Some quotes:

At news conferences, on its Web site and in its regular publications, the government agency leading the cleanup of the Chesapeake Bay has documented more than a decade of steady progress.

The Chesapeake Bay Program has reported that the flow of major pollutants from rivers into North America's largest estuary has declined nearly 40 percent since 1985, bolstering the claims of politicians in Virginia, Maryland, Pennsylvania and the District that they were "saving the bay" and helping the states fend off criticism and lawsuits from environmentalists.

Those reports, however, significantly overstated the environmental achievements. The estimates of pollution reduction were based on a computer model -- not water samples -- that program officials now say was distorted by overly generous assumptions. * * *

U.S. Geological Survey water monitoring data from the mid-1980s through 2003, requested by The Washington Post, indicate that observed concentrations of the two targeted pollutants, nitrogen and phosphorus, showed no decline in most of the major rivers spilling into the bay. * * *

Most of the nitrogen and phosphorus entering the bay from the 64,000 square miles that drain into it come from farm fertilizer, animal waste, sewage treatment plants and air pollution caused by cars, which eventually drops into waters and heads to the bay.

Once there, the chemicals serve as nutrients that set off algae blooms, which block sunlight from the sea grass and creatures on the bay bottom, while also starving them of oxygen.

As part of the cleanup, the states have pushed for the retrofitting of sewage treatment plants, encouraged farmers to minimize excess fertilizer and animal waste flowing into streams and groundwater and cautioned against long-distance automobile commuting.

One of the program's most significant achievements was the phosphate detergent ban that went into effect in the bay states and the District between 1985 and 1990, a measure believed to have yielded significant phosphorus reductions. This spring, too, Maryland legislators passed a $2.50 monthly surcharge on every homeowner in the state -- the "flush tax" initially proposed by Gov. Robert L. Ehrlich Jr. -- to pay for upgrades to wastewater treatment plants.

Those efforts, however, are countered by pollution created by the rising population in the bay's vast watershed. * * *

The model estimates the amount of pollution flowing into the bay based on the various land uses in the vast watershed. Forested land is judged to contribute relatively little to the problem; agricultural and urban lands contribute the most, officials said.

"It is the Cadillac of watershed models across the world," said Christopher S. Conner, director of communications for the Chesapeake Bay Program.

The model is useful, bay officials said, because it can take variations of rainfall and other factors into account. Even scientists who question its use for measuring progress credit the model with being well-constructed and useful for prediction.

But some scientists and other experts on the bay said the model is the wrong tool for reporting bay pollution because it relies on so many assumptions and because it continues to suggest more progress than water monitoring reports.

The Chesapeake Bay Program's revised computer model currently reports that phosphorus pollution has dropped about 28 percent since 1985 and that nitrogen pollution has dropped about 18 percent.

But according to the U.S. Geological Survey data, the observed concentrations of those chemicals flowing into the bay from the major rivers has changed little.

The story includes this graphic on measuring the Bay's pollution.

Here is the website of the Chesapeake Bay Program: America's Premier Watershed Restoration Partnership.

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

Law - Why special legal treatment for married couples?

Saturday's Indianapolis Star published a syndicated column by Froma Harrop with the headline "Singles left out of the deal." Although the article was not available from the Star's website, it is available here today from the Creators Syndicate site. Some quotes:

Quickie marriages get more legal respect than friendships lasting decades. An hour after Britney Spears gets hooked to her next husband, the federal government will shower her with all sorts of rights and benefits not available to the man who has spent eight years caring for a mother with Alzheimers.

So here is the point: The push toward gay marriage doesnt threaten hetero marriages as much as it threatens the deal. It puts light on the illogic behind handing a variety of goodies to certain people because some civil authority issued them marriage certificates.

There is a potent political issue here, which could complicate matters for candidates. They must do more than just choose between advocates of gay rights and those of so-called traditional values. They must consider the lot of single Americans, who could cause a ruckus if they ever woke up.

So much attention is paid to married couples that most of the public -- including single people themselves -- thinks of unmarried adults as a marginal minority. Actually, they account for half of Americas grownups. Households headed by single people are now the majority in 13 states and 113 congressional districts.

These districts are wildly diverse. Some include the poorest black inner cities, while others are wealthy and mostly white. In the nations richest congressional district -- located on Manhattans East Side -- more than 70 percent of the households are headed by unmarried adults.

Government should have no interest in a citizens marital status. It certainly has no business sending a bigger tax bill to co-habiting sisters than to a man-and-wife team reporting the same income and deductions.

Marriage is a fine institution and a very important stabilizing force for the raising of children. Some purists will argue that even child tax credits are a kind of social engineering. Using the tax code to help people pay for child expenses seems OK to me. But giving tax breaks to Larry King and his seventh wife -- and in the name of helping children -- is outrageous.

She concludes: "Perhaps the diversity of the group helps explain why unmarried adults havent made common cause. They should, and when they do, the whole conversation will change. The real issue will no longer be whether gays should get in on the same marriage deal as heterosexuals, but why the deal exists in the first place."

And today's Star contains a short opinion piece from Star editorial writer RiShawn Biddle. Some quotes:

Now that the Federal Marriage Amendment has been temporarily knocked into history's ashbin, perhaps it's time to consider a ban on heterosexual marriages. Say what? Yes, I said it: Heterosexual marriages should no longer receive government blessing. * * * Why should married couples get special tax privileges or force businesses to extend health care benefits? * * * It's time to put marriage back in its place in the private realm, where it belongs.

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

Indiana Law - More on State's New "Indebt" Website

This July 2, 2004 Indiana Law Blog entry reported on the State's new "InDebt" website.

Today's lengthy Fort Wayne Journal Gazette story gives a progress. report. A quote:

Since the Indiana Department of Revenue sent letters out a month ago notifying tax scofflaws their names would be posted online, the department has collected about $1.3 million in back taxes, with promises of another $500,000, department spokeswoman Cathy Henninger said.

But the department also has raised the ire of business owners who describe a Byzantine bureaucracy.

Every time you try to sit down to talk to them, they just never get back to you, said Bill Bean, who is showed owing more than $141,613 in personal income taxes a mess Bean, former owner of Bills Bistro in Fort Wayne, dates to 1986. Based on past experience, if we do nothing at all, we wont hear from them again for another three or four years.

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

Indiana Courts - Sarah Evans Barker's First 20 Years on the Federal Bench

The Sunday Indianapolis Star has a front-page, above-the-fold story marking Federal District Court Judge Sarah Evan Barker's first 20 years on the federal bench, titled "With Honor and Justice." Some quotes:

Sarah Evans Barker says being a judge is knowing where to draw the line. Last week, she showed she's a master at making people toe it.

After threatening sanctions against local government if decades of overcrowding at the Marion County Jail persisted, the U.S. District Court judge on Wednesday eased the pressure after her message spurred meaningful reform.

But in true Barker fashion, she didn't throw away the stick -- the pending lawsuit challenging jail conditions.

She merely laid it aside for now.

In the 20 years since becoming Indiana's first female federal judge, Barker has presided over some of the state's biggest cases in her inimitable style.

When assigned the task of presiding over the multidistrict Bridgestone/Firestone tire recall litigation, she served notice at the outset that things were going to move forward in the complex case.

"I was thinking of the old Bette Davis line: 'If you want to get something done, give it to a couple of old broads,' " Barker quipped to lawyers, referring to herself and U.S. Magistrate Judge V. Sue Shields. "And let me tell you, these old broads are going to get this done."

Posted by Marcia Oddi on Sunday, July 18, 2004
Posted to Indiana Courts

Saturday, July 17, 2004

Environment - More on the Great Lakes Suit

Yesterday the Indiana Law Blog quoted from a story reporting that "Seven Great Lakes states launched a two-pronged, legal effort this week to stop invasive mussels, fish and other organisms from being dumped into U.S. waters by oceangoing ships" (scroll down a few entries to find it) and noted that Indiana was not a party to either action.

Today the NY Times reports:

New York and six other states have joined a federal lawsuit that seeks to force the United States Environmental Protection Agency to do more to prevent foreign species of fish and plants from invading the Great Lakes. Those species can cause billions of dollars in damage and crowd out indigenous species.

The states, all of them touching on the Great Lakes, announced on Thursday that they wanted the agency to take an active role in enforcing regulations that control the discharge of ballast water from oceangoing vessels. * * *

Besides New York and Ohio, the states involved in the petition and supporting brief are Illinois, Michigan, Minnesota, Pennsylvania and Wisconsin. The Indiana attorney general supported the action but chose not to participate.

Here is a copy of the 7/15/04 press release from the New York Attorney General announcing "a coordinated effort by seven states to combat the problem of harmful invasive species in American waterways, including the Great Lakes." Here is the press release of the Illinois Attorney General. I did not find information about the combined legal effort on the other five states' AG sites, or on the Indiana AG site.

[It was interesting, however, to look at the various Attorney General sites, their focus, and the kind of information they presented -- perhaps this will be the subject of an ILB entry at some point.]

Posted by Marcia Oddi on Saturday, July 17, 2004
Posted to Environmental Issues

Friday, July 16, 2004

Law - "Open Carry" is Now Law in Virginia

A story in the Washington Post this week reported on alarm caused by people wearing guns. Police were called recently when six armed men were seen sitting in a restuarant. More:

The men told the officers "they were just exercising their rights as citizens of the commonwealth," [Sgt. Richard] Perez said. Turns out, packing a pistol in public is perfectly legal in Virginia. And three times in the last month, including at Champps on Sunset Hills Road, residents have been spotted out and about in the county, with guns strapped to their hips, exercising that right.

In the first episode, at a Starbucks, Fairfax police wrongly confiscated weapons from two college students and charged them with a misdemeanor. Police realized their mistake, returned the guns and tore up the charges the next day. Police commanders have since issued a reminder to officers that "open carry" is the law of the land in the Old Dominion. * * *

In Virginia, as in many states, carrying a concealed weapon requires a permit, issued by a local court. But no permit is required to simply wield a gun in the open, a right reinforced by a state law that took effect July 1. Not so in the District and Maryland, unless you're a police or federal officer. * * *

[In the Starbucks incident] an officer spoke with the men, then took their guns and charged them with possession of a firearm in a public place. Virginia law 18.2-287.4 expressly prohibits "carrying loaded firearms in public areas." But the second paragraph of the law defines firearms only as any semiautomatic weapon that holds more than 20 rounds or a shotgun that holds more than seven rounds -- assault rifles, mostly, [Philip Van Cleave, president of the Virginia Citizens Defense League] said. Regular six-shooters or pistols with nine- or 10-shot magazines are not "firearms" under this Virginia law.

The day after the arrest, the officer consulted with a county prosecutor and determined that "he had erred," Perez said. He summoned the two men to the McLean District station, returned their weapons and dropped the charges. * * *

Van Cleave said the gun owners might have been out celebrating a law that took effect July 1. Virginia statute 15.2-915 now completely prohibits any locality from enacting any regulations on gun ownership, carrying, storage or purchase, except for rules related to the workforce. Alexandria, for example, had an ordinance prohibiting openly carrying guns. It is now invalid, Van Cleave said. "It's like the Fourth of July," Van Cleave said. "A whole new set of freedoms came in. . . . All local gun control is completely and totally gone."

Legislators said they passed the bill to eliminate duplicative regulations, particularly in counties such as Fairfax, which imposed its own gun permit process in addition to the federally mandated background check. Openly carrying weapons is "not a good idea," said Kristen Rand of the Violence Policy Center in Washington. "This is the gun lobby's vision of how America should be. Everybody's packing heat and ready to engage in a shootout at the slightest provocation."

[Bob Ricker, head of Virginians for Public Safety] said the gun owners "are probably doing their cause more harm than good by raising this issue. It raises an awareness and gives people who are more rational thinkers the opportunity to go to their legislators and make their views known."

What about Indiana? Indiana's IC 35-47-2-1 provides that with limited exceptions, "a person shall not carry a handgun in any vehicle or on or about the person's body, except in the person's dwelling, on the person's property or fixed place of business, without a license issued under this chapter being in the person's possession."

[Update 7/18/04] While posting the above story I overlooked several Indianapolis Star stories published July 11th. Here they are:

In addition, the Star provides a database of firearm permits, city-by-city.

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

Environment - Stories Today

Wetlands. "Miffed wetlands owner halts talks" is the headline to this story posted on the IndyStar site this afternoon. The lead:

The owner of a large wetland area in southwestern Indiana said he was "disgusted" with a multi-million dollar offer from state officials and called off a potential deal that would have put the land into public ownership.

The 8,000-acre area, known as Goose Pond, would have been the largest single purchase of recreational land in state history, officials have said. The Greene County property, a former shallow lake, is being restored to wetlands and already attracts large amounts of waterfowl and other wildlife.

Owner Maurice Wilder phoned The Indianapolis Star today to say any potential sale to the state was off and he would auction the land Oct. 15.

Earlier Goose Pond stories: 7/8/04; 5/19/04.

More on Wetlands. A lengthy AP story today, dateline Fishers, Ind., gives an overview of wetland issues. Some quotes:

Following the Supreme Court's 2001 decision, legislative fights arose across the nation over how to regulate isolated wetlands in the absence of federal rules.

About four months before his death last year, Gov. Frank O'Bannon vetoed a wetlands bill passed by lawmakers, saying it would not achieve its stated goal of "no net loss of wetlands."

In January, the Legislature overrode his veto, then passed another bill that addressed some of the concerns raised by critics and the Indiana Department of Environmental Management.

Sen. Beverly Gard, chairwoman of the Senate Environmental Affairs Committee, believes the new law might have ended the long-running fight over wetlands between the General Assembly and IDEM.

"I don't see the Legislature getting into this issue for a while," said Gard, R-Greenfield.

The new law creates a three-tier system for regulating isolated wetlands, giving the highest level of protection to areas dominated by native wetland plants and which have experienced few, if any, changes to their original hydrology.

Timothy Method, deputy commissioner for IDEM, said the agency is working to develop a new permit system and rules for regulating isolated wetlands under the three-class system.

Those rules will be forwarded to the Indiana Water Pollution Control Board, which must revise and adopt them no later than June 1, 2005, said Andrew Pelloso, the chief of IDEM's wetland programs.

[Update 7/17/04] The Munster Times has a story today that begins:
MICHIGAN CITY -- Save the Dunes Conservation Fund is encouraging citizens and local communities to become involved in preservation of isolated wetlands that it says state legislation in the recent session has threatened.
Great Lakes. A syndicated story published here in the Minneapolis-St. Paul Star Tribune reports that:
Seven Great Lakes states launched a two-pronged, legal effort this week to stop invasive mussels, fish and other organisms from being dumped into U.S. waters by oceangoing ships.

They argued that species from foreign ports must be stopped because they disrupt the ecology and cause billions of dollars in damage to industries, sport fisheries and taxpayers.

The attorneys general petitioned the U.S. Coast Guard Thursday to close a loophole that allows most ships from abroad to enter the Great Lakes without doing anything to remove or kill foreign species in their ballast tanks.

They also filed a friend-of-the-court brief in support of a lawsuit by conservation and environmental groups. That suit seeks to force the Environmental Protection Agency to regulate ships' ballast water discharges in U.S. waters.

EPA released a letter sent earlier this year to Indiana's attorney general. It said that the EPA has been working with the Coast Guard to solve the problem. The Coast Guard said it will respond after it reviews the legal papers. * * *

Michigan, Wisconsin, Illinois, Pennsylvania, New York and Minnesota are part of both legal actions. Ohio's attorney general and Great Lakes United, an environmental group based in Buffalo, N.Y., joined to petition the Coast Guard.

Apparently, Indiana is not a part of either action.

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

Law - Martha Stewart Sentenced

"A federal judge sentenced Martha Stewart to five months in prison this morning for her conviction for four felony charges in March, but stayed the sentence pending appeals." This from USA Today and numerous other news sources. Here is another story, from Eonline.

TheStreet.com has an article headlined "As an Investor, Martha Stewart Fell Victim to a Common Weakness."

Finally, for now, ABC's Nightline announced a few minutes ago:

TONIGHT'S FOCUS: She's been sentenced, and she's doing time. But first, she'll do her first and only interview today with Barbara Walters on 20/20. Immediately following that, we'll analyze Martha Stewart's interview, her sentencing and her effort to rehabilitate her image tonight on Nightline.
Interesting, because CNN is also announcing that she will do her her first and only interview Monday night with Larry King.

Posted by Marcia Oddi on Friday, July 16, 2004
Posted to Indiana Law

Indiana Decisions - Three 7th Circuit Opinions Today

Simpson, William S. v. USA (Application for an Order Authorizing the District Court to Consider a Second or Successive Motion for Collateral Review)

Before RIPPLE, ROVNER, WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. William Simpson asks this courts permission to file a second or successive collateral attack under 28 U.S.C. 2255. He proposes attacking his conviction under Blakely v. Washington, 124 S. Ct. 2531 (2004). For the reasons that follow, we dismiss Simpsons application without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review.

* * * In other words, according to Simpson, the judge imposed a longer sentence than that supported solely on the facts he admitted during his plea colloquy. If true, the sentence may violate Blakely.

Assuming that the Supreme Court announced a new constitutional rule in Blakely and that Simpsons sentence violates that rule, the proposed claim is premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization under 2244(b)(2)(A) and 2255 8(2). * * * In Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), and Hernandez v. United States, 226 F.3d 839 (7th Cir. 2000), this court developed a procedure for analyzing Apprendi claims proposed before the Supreme Court ruled on its retroactive application, namely: if the applicant could state a claim under Apprendi, the application was dismissed without prejudice; if she could not, the application was denied on the merits. In keeping with the approach developed in Talbott and Hernandez, we DISMISS without prejudice Simpsons application for leave to file a successive collateral attack. Should the Supreme Court announce that Blakely applies retroactively to cases on collateral review, Simpson can file a renewed application.

Carnegie, Lynne v. Household International (Petitions for Permission to Appeal an Order Granting Class Certification)
Before CUDAHY, POSNER, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for decision petitions, by two groups of defendants in a consumer finance class action litigation, for leave to appeal an order by the district court certifying a plaintiff class. Fed. R. Civ. P. 23(f) authorizes us to entertain such interlocutory appeals. The rule does not state criteria for the exercise of this discretionary authority. But the case law teaches that the more novel the issue presented by the appeal and so the less likely that the district courts resolution of it will stand, the more important the resolution of the issue is either to the particular litigation or to the general development of class action law, and the more likely the prompt resolution of the issue is to expedite the litigation and prevent a coercive settlement, the stronger the case for allowing the appeal. [cites omitted] The issues that the petitions ask us to consider, in the setting of a class of millions, concern, first, the procedures and criteria for converting a settlement class into a litigation class when having initially been approved the settlement is later disapproved, and, second, the bearing of the doctrine of judicial estoppel on class action litigation. These are novel issues whose prompt resolution is important to the development of the law of class actions as well as to the resolution of the present case. The petitions to appeal are therefore granted. The merits of the appeals have been fully briefed and we can therefore proceed to decide them without requiring further briefing. * * *
Sphere Drake Insur v. American Gen'l Insur (ND Ill.)
Before FLAUM, Chief Judge, and COFFEY and EVANS, Circuit Judges.
EVANS, Circuit Judge. This multimillion dollar dispute concerns the validity of a reinsurance contract between All American and Sphere Drake.1 Sphere Drake argues that its broker, Euro International Underwriting (EIU), lacked either actual or apparent authority to bind Sphere Drake to the reinsurance policy. The company contends that EIU had the authority to represent Sphere Drake only up to a certain dollar amount, a limit EIU exceeded when it entered the reinsurance contract with All American. Thus, Sphere Drake argues, the policy is void. All American, in contrast, contends that the contract is valid and enforceable. * * *

For the foregoing reasons, we agree that there are no material factual disputes and that the district court did not err in entering summary judgment for Sphere Drake. Because we decide the excess authority claim in Sphere Drakes favor, moreover, the case is over. Other than returning the premiums already paid, Sphere Drake is not liable on the Unicare retrocession. There is, therefore, no need to further litigate the fiduciary duty claim. The judgment of the district court is AFFIRMED.

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

Indiana Law - News this morning from NW Indiana

The Munster Times this morning has three noteworthy stories:

Judge Kouros. A more complete report of the recommendation of the Indiana Commission on Judicial Qualifications is published in this story this morning. Some quotes:

Judge Joan Kouros held court Thursday despite the latest volley fired in the battle to oust her. The Indiana Commission on Judicial Qualifications filed a recommendation late Wednesday that Kouros be permanently removed from the Lake County Criminal Court bench.

Until the state Supreme Court makes that decision, the commission asked the state's highest jurists to follow their own rule and suspend Kouros with pay. As of 5 p.m. Thursday, the court had not ordered Kouros suspended. * * *

During the April hearing before the three-judge panel, the Judicial Qualifications Commission showed Kouros had upwards of 137 files checked out on select dates and it took weeks for some orders to be implemented.

"Unfortunately, this case is about far more than the administrative failures," the judicial commission states in the seven-page memorandum supporting the 41-page removal recommendation. "It is about Judge Kouros' lack of trustworthiness. ... In light of the Masters' conclusions that Judge Kouros not only continually neglected her duties but defied a Supreme Court Order and was dishonest with the Court, removal is necessary to protect the integrity of the judiciary."

Attorney Resigns. " This story reports:
Former Indiana Democratic Chairman Peter J. Manous surrendered his law license Thursday as he prepares to enter prison later this year for defrauding a union pension fund. Manous, one of the most influential attorneys in Northwest Indiana, will be unable to practice law for at least five years.

He avoided the risk of permanent disbarment and disgrace in the legal community because the Indiana Supreme Court dismissed disciplinary proceedings against him at the same time they accepted his resignation. "If faced with a probability of disbarment, it is not an irrational thing to do to resign," said Donald Lundberg, executive director for the Indiana Disciplinary Commission.

Federal Indictments Expected. This story reports:
HAMMOND -- It will be another freaky Friday for area politicians as they hold their breath until the latest indictment is announced today. U.S. Attorney Joseph Van Bokkelen will host a press conference this afternoon at the federal courthouse to discuss what he described as "an indictment of public interest."

Rumors of who will be targeted next by Operation Restore Integrity, a state and federal investigation into public corruption, ran the gamut Thursday of a Who's Who of local officials. However, those within Operation Restore Integrity were careful to lower expectations. "There are no mayors involved," one source said.

[Update 7/17/04] Today's Times reports: "Feds indict East Chicago police chief."

Posted by Marcia Oddi on Friday, July 16, 2004
Posted to Indiana Law

Thursday, July 15, 2004

Indiana Decisons - Five 7th Circuit Opinions Today

USA v. Garcia, Ricardo U. (ND Ind., Judge Springmann)

EASTERBROOK, Circuit Judge. [Interesting facts, worth reading] * * * The district judge was led astray by the language the police used at the hearing. Officer Bonar, who stopped Garcias car, testified that he did not plan to arrest the driver unless he was unable to provide positive identification, and that even while in handcuffs Garcia was detained rather than under arrest. From this the district judge concluded that it must have been a Terry stop; there is no other alternative to arrest. Fourth amendment jurisprudence, however, is objective. [citations omitted] It does not matter what Bonar was thinking or planning. Reasonableness depends on facts, not labels. Officer Bonar evidently uses the word arrest to mean what the Supreme Court calls a full custodial arresta trip to the stationhouse for booking and incarceration. He uses the word detention to mean what the Supreme Court calls an arrest. Police officers diction does not affect the constitutional inquiry. Definitions do not matter either. The fourth amendment asks whether a particular search was reasonable rather than whether a suspect was under arrest. If a person in custody on probable cause elects to hunt for identification at home in order to reduce the custodys duration, it is reasonable for police to keep him in view to ensure that credentials are the only object of the expedition. Thus the police were entitled to be in a place where evidence of crime was in plain view; their observations were lawful; and as they did not seize that evidence until a warrant had issued, the exclusionary rule has no role to play. REVERSED
Dale, Curtis L. v. Lappin, Harley G. (SD Ind., Judge Barker)
Before COFFEY, ROVNER, and EVANS, Circuit Judges.
PER CURIAM. Federal inmate Curtis Dale filed suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the warden and several other Bureau of Prisons employees at the penitentiary in Terre Haute, Indiana, violated his Eighth Amendment right to be free from cruel and unusual punishment when they failed to protect him from an attack by fellow inmates. The district court screened the complaint under 28 U.S.C. 1915A, dismissed the warden, and later granted summary judgment for the remaining defendants on the ground that Dale had failed to exhaust his administrative remedies. Because the defendants did not meet their burden of establishing the absence of disputed issues of material fact concerning this question, we vacate the judgment and remand to the district court for further proceedings.
Vallone, Michael v. CNA Financial Corp (ND Ill.)
Before CUDAHY, MANION and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. This case involves another episode in the widespread efforts of corporations to reduce their liabilities by cutting back on retiree benefits. The law in this circuit is well-established, but this does nothing to cushion the hardship of pensioners faced with a new drain on their limited resources. * * *

IV. Conclusion. This story does not have a happy ending. What this case comes down to, in the end, is the distinction between lifetime and vested welfare benefitsa legal distinction that understandably escaped many of Continentals employees who elected to take early retirement under the VSRP. It is also a distinction that, as we have pointed out above, only relatively recently became important. But now this legal distinction has indeed become an important one, because the lack of a writing that expressly vests the lifetime HCA benefit combined with Continentals reservation of the right to terminate benefits means that the plaintiffs claims of wrongful denial of benefits, breach of contract and estoppel must fail. As for the plaintiffs fiduciary duty claim, we agree with the district courts observation that, in hindsight, Continental would have better served its employees by proactively clarifying its intent with respect to the HCA benefit during the time its employees were deciding whether to take early retirement under the VSRP. Its failure to do so has left the plaintiffs, and undoubtedly many other long-time former Continental employees, feeling betrayed. However, we also agree with the district court that, at least in this circuit, Continentals failure is not actionable as a breach of fiduciary duty. For the foregoing reasons, the district courts grant of summary judgment to the defendants on all of the plaintiffs claims must be AFFIRMED.

Doctors Associates v. David M. Duree (SD Ill.)
Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. * * * The court may have been contemplating full-blown abstention, but it is just as likely that the court simply wanted to see what happened in state court, as a courtesy or as a warning to the parties that it would be likely or perhaps required by the full faith and credit statute, 28 U.S.C. 1738, to rule consistently with the state court. It is enough for present purposes to say that the district court is not finished with this case, and thus that the appeal is premature. We leave it to the parties and to the district court to consider what additional steps are appropriate once this case is returned to the district court, bearing in mind on the one hand the exceptional nature of Colorado River abstention and on the other hand the need to respect the parallel proceedings in the state courts.

Because the district courts order dismissing the counterclaims without prejudice was not a final judgment, this case is DISMISSED for want of jurisdiction.

R., Alex v. Forrestville Valley (ND Ill.)
Before EASTERBROOK, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Under the Individuals with Disabilities Education Act, 20 U.S.C. 1401, et seq., (IDEA), a state that accepts federal funding to educate disabled children must provide such children with an education that is free, public, and appropriate. Alex R.1, through his mother, appeals from the district courts entry of judgment in favor of the Forrestville Valley, Illinois Community Unit School District # 221 (the District), arguing that the District did not provide him with an appropriate education from April through November 2001 and that it committed several other violations of the IDEA. We affirm.

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

Law - Judge Denies Martha Stewart Blakely Plea

The AP is reporting:

Stewart's lawyers had asked the judge to declare the federal guidelines unconstitutional based on a June 24 Supreme Court decision that said Washington state judges could not impose harsher sentences than state guidelines based on facts that had not been presented to a jury.

But Cedarbaum, in a one-paragraph, handwritten opinion earlier this week, denied the motion, adding: "The sentencing guidelines applicable to this case do not require any enhancement by the judge."

This from the Chicago Tribune:
The judge who will impose punishment on Martha Stewart has rejected a defense request to declare federal sentencing guidelines unconstitutional.

Stewart's lawyer Robert Morvillo last week filed the motion, which had sought to give U.S. District Judge Miriam Cedarbaum more leeway in sentencing Stewart to a term below the 10-to16-month prison sentence recommended by the guidelines. * * *

Morvillo had argued that the guidelines violated Stewart's Sixth Amendment right to a trial by jury because it allowed Cedarbaum to impose a sentence based on facts which the jury never considered.

In a one-paragraph note jotted down on Morvilllo's motion paper and filed late last night, Cedarbaum wrote, "Motion denied."

Morvillo cited the recent U.S. Supreme Court ruling, Blakely v. Washington issued on June 24, which concluded that the sentencing guidelines of the state of Washington were unconstitutional. * * *

"The federal guidelines are not before us and we express no opinion on them, " Cedarbaum wrote. "In any event, the sentencing guidelines applicable to this case do not require any enhancement by the judge, accordingly Blakely is not in point." * * *

[More] Here is more, a story on CNN, link via the excellent Blakely Blog.

[Even More] ABCNews has a story reporting that "One-time Clinton White House legal adviser Walter Dellinger will take on the appeal for Martha Stewart after her sentencing Friday morning, and ABC News has learned the details of Dellinger's argument for a stay in her sentence pending appeal." That in itself isn't news, as I have read it in prior days, but the ABC story does expand on the bare fact of Dellinger's engagement. Link via How Appealing.

Posted by Marcia Oddi on Thursday, July 15, 2004
Posted to General Law Related

Indiana Decisions - Three Court of Appeals Decisions Today

David D. Lee & Nancy R. Lee v. Sheila Pugh, et al. (7/15/04 IndCtApp) [Procedure]
Mathias, Judge

[The Lee's] complaint was dismissed with prejudice pursuant to Indiana Trial Rule 41(E), and the trial court denied the Lees motion to reinstate the complaint. The Lees appeal and argue that the trial court abused its discretion when it dismissed their complaint and denied their motion to reinstate. * * *

The Lees argue that the trial court abused its discretion when it dismissed their complaint because the complaint had been pending for less than one year and a satisfactory explanation for the three-month period of inactivity exists.[ft]

[ft] At the hearing on the motion to dismiss, the Lees counsel, Scott Racop, stated that an attorney, Jeffrey Kohr, who works part-time in Racops office, attempted to initiate the conference call on October 28, 2002, but could not get defendant Diamanti on the telephone line. Kohr told Racop that he spoke with Century 21s attorney and the trial court. We note, as did the trial court, that Kohr was not an attorney of record for the Lees. Tr. pp. 7, 9-10.]
* * * The Lees also argue that the trial court abused its discretion when it denied their motion to reinstate their complaint. * * * Contrary to the Lees argument, Knapp does not stand for the proposition that the trial court must grant a motion to reinstate if the party complies with discovery and pretrial orders. Just as the trial court acted within its discretion in Knapp when it reinstated the counterclaim, in this case, it was within the trial courts discretion to deny the Lees motion to reinstate. In their motion, the Lees simply reiterated their arguments made to the trial court at the hearing on the motion to dismiss. Moreover, they failed to allege any reason justifying relief from judgment beyond their eventual, yet tardy, compliance with discovery and the trial courts request for notification of the time needed for trial. Accordingly, although we may have come to a different conclusion under similar circumstances, we conclude that the trial court did not abuse its discretion when it denied the Lees motion to reinstate their complaint.

Conclusion. The trial court did not abuse its discretion when it granted Century 21s Trial Rule 41(E) motion to dismiss. The trial court also acted within its discretion when it denied the Lees motion to reinstate their complaint. Affirmed.
BARNES, J., and CRONE, J., concur.

Daniel Green v. State of Indiana (7/15/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
In August 2003, the State charged Daniel Green with Criminal Deviate Conduct, as a Class A felony, Criminal Confinement, as a Class B felony, and Battery, as a Class C felony. In January 2004, Green pleaded guilty to the criminal confinement charge, and the State dismissed the remaining charges. The trial court then sentenced Green to a sixteen-year term of incarceration and ordered him to pay $1,345 in restitution to the Adams County Prosecuting Attorneys (ACPA) deferral fund. Green now appeals and presents two issues for review: 1. Whether the trial court erred when it ordered restitution. 2. Whether his sentence is inappropriate in light of the nature of the offense and his character. We affirm in part, reverse in part, and remand with instructions. * * *

Green first contends that the trial court erred when it ordered him to pay restitution to the ACPA deferral fund. In particular, he asserts that the restitution order was not authorized by statute and that the facts of this case are distinguishable from cases in which this court has allowed such restitution, namely, where the State was considered to be a victim under Indiana Code Section 35-50-5-3(a). The State responds that the trial court properly determined that the State was a victim because the forensic examination was necessitated by Greens crimes against Friesendorf. * * *

In sum, we conclude that the trial courts order that Green pay $1,345 to the ACPA deferral fund as restitution is improper as a matter of law. Therefore, we reverse the restitution order and remand with instructions to vacate that portion of Greens sentence.

Next, Green asks us to reconsider his sentence. * * *

We conclude that the trial court did not abuse its discretion when it weighed the various aggravators and mitigators. Further, we agree with the trial court that Green confined Friesendorf for an extended period of time, during which he inflicted serious injuries on her. And Green has a lengthy criminal record, which includes convictions for violent crimes, probation and parole violations, and fleeing law enforcement. Based on the nature of the offense and the character of the offender, we conclude that the trial courts sentence is not inappropriate. * * *

Affirmed in part, reversed in part, and remanded with instructions.
KIRSCH, C.J., and RILEY, J., concur.

Jack E. Thompson v. Dana L. Thompson (7/15/04 IndCtApp) [Family Law]

"Jack and Danas combined salaries were able to provide the Thompson family with an extremely comfortable lifestyle supported by substantial income." Eleven issues for review.

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

Economic Development - Most State Governments Shipping Jobs Overseas

"Most State Governments Shipping Jobs Overseas: Union study finds that contracting tax-funded work to India and other low-wage nations is proliferating despite legislatures' efforts" is the headline to this story today in the LA Times. The story begins:

WASHINGTON More than 40 state governments have contracted with companies in India and other low-wage countries to help administer new food-stamp and other taxpayer-funded programs, according to a study released Wednesday by a technology workers union.

The practice by state agencies of sending work overseas has proliferated despite efforts in many legislatures to impose restrictions on doing so, the study said, and foreign firms are becoming more aggressive in their efforts to win government contracts.

"Taxpayers clearly aren't informed," said Marcus Courtney, president of the Washington Alliance of Technology Workers, or WashTech, in Seattle. "Citizens don't necessarily know that their tax dollars are being spent overseas. This is being done quietly and secretly. Oftentimes, the state governments don't even know that this is going on."

And here is a link to the report itself.

Posted by Marcia Oddi on Thursday, July 15, 2004
Posted to Indiana economic development

Law - Blakely on Diane Rehm Show

Guest host: Syndicated columnist Steve Roberts

U.S. Sentencing Guidelines:

The Supreme Court's "Blakely v. Washington" decision in June said that any factor used to determine a convicted person's prison sentence in Washington state must be admitted by the defendant or reviewed by a jury, not just a judge. A panel talks about the resulting widespread upheaval in the federal courts and how it could affect tens of thousands of ongoing criminal cases.

Bill Mercer, United States Attorney for the District of Montana, and chairman of the Attorney Generals Advisory Committee

Billy Murphy, former circuit court judge in Baltimore City, and defense attorney whose clients include fight promoter Don King

Here is the link to listen to the hour-long program.

Posted by Marcia Oddi on Thursday, July 15, 2004
Posted to General Law Related

Environment - Stories Today

Landfill. "Trash hits the road: With landfill closing, costs likely to increase for residents," is the headline to this story today in the Munster Times that begins:

The closing of Munster's landfill might mark the end of local resident frustration, but it also leaves Lake and Porter counties and south suburban Chicago at the mercy of outside facilities.

With no more landfills immediately on the horizon in the region, trash must be hauled out of the region to other landfills in Indiana and across state lines. With Munster's facility now closed, the 30 percent of trash it handled from Lake County will now be transferred to the Newton County landfill, about 55 miles south.

The region is not alone. Nationally, trash must travel greater distances for disposal as landfills dwindled from about 8,000 in 1988 to 2,314 just 10 years later, according to the Environmental Protection Agency Region 5.

Indiana has 35 landfills, compared to 130 in the 1980s, according to Bruce Palin, deputy assistant commissioner of land quality for the Indiana Department of Environmental Management.

Don't miss the great photo.

Asbestos. "Asbestos removal costs Hanover extra $90,000" is the headline to this Times story that begins:

CEDAR LAKE -- Removing excessive amounts of asbestos discovered during Hanover School Corp.'s renovation projects will cost $90,000 more than originally expected.

"We had extreme amounts of asbestos identification," Dave Mankowski told the School Board Tuesday. "A lot of flooring at Jane Ball was asbestos," said Mankowski, who is senior project manager for renovations at Hanover Central Junior/Senior High School and Jane Ball Elementary School, which was built in 1958.

The original estimate for asbestos removal at the schools was $45,000, based on reports obtained through environmental consultant Alliance Indiana. That figure has now been pushed to $135,000, said Jan Bapst, assistant to the superintendent. * * * School Board President Marilyn Kaper blamed Alliance, which maintains the project's management plan and does periodic inspections at the corporation's buildings, for not catching the excessive asbestos. * * *

"You know with construction that there are always hidden issues, but they really hit it kind of low and this is their area of expertise," Kaper said. "I'm kind of disappointed in that."

Since the asbestos is non-friable, which is considered less dangerous than the friable form, officials said it might be removed at a lower cost. Mankowski said Gariup Construction, general contractor for the project, could do the removal, which requires only an OSHA-certified remover rather than an asbestos abatement specialist.

Brownfields. "King: A future boon; Critics: A boondoggle," reads the headline to this story in the Gary Post Tribune. Some quotes:
GARY It takes vision to see much of value on the western edge of U.S. Steels mammoth Gary Works complex. The 486-acre parcel, called simply the West End in EPA documents, is a barren moonscape of steel slag, lime dust and likely very toxic waste.

To Mayor Scott L. King, who helped negotiate a deal that would give the city a 200-acre chunk of the site, it looks like prime real estate. To Kings critics, it looks like an environmental albatross.

What are we going to do? Spend millions to clean it up for U.S. Steel and then give it away? complained City Councilman Chuck Hughes, one of the mayors most vocal critics, at a recent council meeting. * * *

What the city really gets for taking over the land is also in question. This fall, U.S. Steel will begin testing to see what contaminants linger after decades of using the West End as a dumping ground. In fact, almost all of the parcel is slag, a steel waste byproduct as deep as 50 feet that filled in the lakefront.

By order of the EPA, the corporation is required at its expense to clean the site to an industrial standard, meaning the land would be safe for adult workers spending a few hours a day in buildings there. Cleaning up the site to a condition that allows Gary taxpayers to safely live or stroll there may cost the city millions more.

King includes the parcel in his long-term plan for lakeshore development. The West End is adjacent to the defunct NIPSCO Mitchell generating station, which the mayor hopes to condemn for redevelopment. Just this week NIPSCO let it be known it no longer has a desire to restart the plant, though that was the thinking only a few weeks ago. Farther west along the shoreline are several hundred acres owned by Majestic Star Casino owner Don Barden.

Someday, King sees the lunar landscape lush and green with parks, stores and even homes I may not live to see it, to enjoy it, King said. I did not put a deal together looking at acres of abandoned, desolate land. ... That land, cleaned up, will not be on the market long. * * *

George Hamper, chief of the EPA corrective action division, noted the agency has seen more former hazardous waste sites returning to productive use. Its multimillions of dollars, but thats lakefront property thats pretty valuable, Hamper said. Its expensive not to clean it up, if you think about it.

The city will have to invest some cash to clean up the site, but state and federal money likely would be available, said Tamara Ohl, who also oversees the cleanup of the Grand Calumet River for the EPA. The land is in the footprint of U.S. Rep. Pete Viscloskys Marquette Greenway project, said Katherine Bensen-Piscopo, spokeswoman for Visclosky.

For aging cities, the only open land is likely property tainted with pollutants, said Ron Novak, Hammond director of environmental management. Few private investors will take up the challenge without public money state, federal or local making costs competitive with building in suburban farm fields, he noted. Novak supervised a $30 million-plus redevelopment to turn a former slag dump into Lost Marsh golf course and wetlands area. The project was paid for with state and federal grants and city casino revenue and now is a civic jewel, Novak said.

Air Pollution.A Washington Post story today reports:
The Environmental Protection Agency is moving to take legal action against 22 electric utilities for violating the Clean Air Act and has referred 14 cases to the Justice Department, agency officials said yesterday. Justice Department officials are considering whether to file lawsuits in the 14 cases, and eight more cases are in the pipeline, said the officials, who spoke on the condition of anonymity for fear of jeopardizing the cases.

Posted by Marcia Oddi on Thursday, July 15, 2004
Posted to Environmental Issues

Indiana Courts - State judicial commission suspends Judge Kouros

"State judicial commission suspends Judge Kouros," reports the Gary Post-Tribune today in a story that begins:

Lake Superior Court Judge Joan Kouros will be removed from the bench, pending a final decision by the state Supreme Court.

Her second suspension with pay will be in response to a brief filed Wednesday by the Indiana Commission on Judicial Qualifications, which acts as prosecutors in cases of misconduct by attorneys and judges.

The commissions prosecutors recommend that the judge be removed for violating a January 2003 Supreme Court order designed to end the chronic backlog in her court.

The commission filed its brief with the Supreme Court just prior to the deadline under the statute. It had to respond within 30 days of the decision of the panel of master judges, which made no recommendation on whether Kouros should be removed or forced to retire.

State statute says that once the commission recommends dismissal, the judge must be suspended with pay pending a final decision by the Supreme Court, said Meg Babcock, commission counsel.

Earlier stories: 6/15/04; 6/13/04; 4/23/04.

Posted by Marcia Oddi on Thursday, July 15, 2004
Posted to Indiana Courts

Indiana Decisions - "Greta Van Susteren" Name not Enough to Prevent Default

The Indianapolis Star has this story today, headlined "Insurance claim disallowed: Mother of woman killed on job had hired Greta Van Susteren of Fox to represent her." The Court of Appeals decision was reported by the Indiana Law Blog here on Tuesday (the second case listed). Some quotes:

Just because your television commentator/lawyer doesn't show up in court doesn't mean you get a second chance, the Indiana Court of Appeals ruled in a case involving Fox News Channel's Greta Van Susteren. * * *

Court records indicate [Virginia Gifford, of LaPorte] hired Van Susteren and her Washington law firm, Coale & Van Susteren. In May 1995, Van Susteren and attorney Wendy Ehrlich filed a response to the lawsuit in LaPorte Superior Court.

But the Court of Appeals ruled this week that the document carried no legal weight because neither Van Susteren nor Ehrlich had been eligible to practice law in Indiana, and no Indiana attorney had signed the response.

The court ruled that Gifford lost her shot at recovering money from the Hartford Steam Boiler Inspection and Insurance Co. because she and her legal team failed to show up for trial. * * *

[I]n court documents, Gifford claimed neither she nor Van Susteren had received notice of the jury trial. The appeals court determined they had not been entitled to notice of the trial because they failed to follow court rules.

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

Wednesday, July 14, 2004

Indiana Decisions - Three from the Court of Appeals Today

Charles S. Coffman, et al. v. Robert Rohrman (7/14/04 IndCtApp) [Tort; Real Estate]
Baker, Judge

Appellants-defendants Charles S. Coffman and the Metropolitan Real Estate Corporation (collectively, Metropolitan) appeal the judgment entered in favor of appellee-plaintiff Robert V. Rohrman in Rohrmans fraud and negligence actions brought about by Coffmans failure to inform Rohrman of material facts with regard to a contract for the sale of real estate. Specifically, Metropolitan claims that the applicable statute of limitations bars Rohrmans claims. Additionally, Metropolitan alleges that the trial court erred as a matter of law in finding that Coffman owed a professional duty to Rohrman because no expert evidence of duty was presented. In the alternative, Metropolitan argues that even if it did breach a duty, the trial court erred in refusing to apply comparative fault principles and in awarding attorney fees to Rohrman. Concluding that no error occurred at trial, we affirm. * * *

In light of the issues discussed, we conclude that the trial court did not err in finding that Rohrmans claim was not barred by the statute of limitations. Furthermore, we conclude that Metropolitan had a statutory duty to disclose material facts. Additionally, we note that the Comparative Fault Act did not require the trial court to specify the percentage of fault attributable to each party. Finally, the attorney fees expended by Rohrman were foreseeable consequences of Coffmans actions and, thus, recoverable. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Dreyer & Reinbold, Inc. et al v. Leib, Jere W. & Arlene S. (7/14/04 IndCtApp) [Venue]
Vaidik, Judge
Dreyer & Reinbold, Inc., a BMW dealership in Indianapolis, and BMW of North America, LLC (BMW NA) appeal the Allen County small claims courts denial of their motion to correct venue. Because the evidence shows that venue is improper in Allen County, we conclude that the court erred in denying the motion to correct venue. We therefore reverse the small claims court. * * *

In sum, after examining the three categories listed in Small Claims Rule 12, we conclude that venue is not appropriate in Allen County but rather is appropriate in either Madison or Marion County. Accordingly, Dreyer & Reinbold and BMW NA have established prima facie error on appeal. We therefore remand this case with instructions for the small claims court to order the actionat the option of the plaintiffseither to be transferred to a proper county or to be dismissed without prejudice. Reversed and remanded.
SULLIVAN, J., and MAY, J., concur.

Leonard & Patricia Daisy v. Thomas Roach (7/14/04 IndCtApp) [Contractor Liability; Premises Liability]
Sullivan, Judge
Leonard and Patricia Daisy appeal from the trial courts grant of summary judgment in favor of Thomas Roach [homeowner] on their claim of negligence for injuries suffered by Leonard. [The issue:] whether summary judgment was improperly granted to Roach. We affirm.

Roach had contracted with Prosser Construction (Prosser) to perform construction work on his home in late 1999. Roach acted as his own general contractor on the construction project. Leonard was employed by Prosser to perform work on Roachs home in early 2000. He was involved in finishing the roof of the house and was working on the roof on February 15 when his accident occurred. Leonards supervisor had asked him to get off the roof and get some supplies, but the ladder he had used to climb onto the roof had been moved. His supervisor told another worker to put the ladder back up against the house so that Leonard could get down. Leonard then proceeded to climb down the ladder, but as he did, the ladder slid on ice on the frozen ground and Leonard fell approximately twelve feet. As a result of the fall, Leonard suffered severe injuries, including a shoulder injury for which he had two surgeries. He continues to suffer from headaches and dizziness. * * *

To support their claim for damages, the Daisys assert that Roach is liable as a general contractor, and in the alternative, that he is liable under a theory of premises liability. In asserting their claim for liability as a general contractor, the Daisys rely upon evidence indicating that Roach was aware that the ground was frozen and that the manner in which ladders were used was unsafe.
As a general rule, a principal is not liable for the negligence of an independent contractor whom he employs. Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1267 (Ind. Ct. App. 2002), trans. denied. However, five exceptions to the general rule have been recognized: (1) where the contract requires the performance of intrinsically dangerous work; (2) where the principal is by law or contract charged with performing the specific duty; (3) where the act will create a nuisance; (4) where the act to be performed will probably cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. Duties associated with the five exceptions are considered non-delegable, and the principal is liable for the negligence of the contractor because the responsibilities are deemed so important to the community that the principal should not be permitted to transfer those duties to another.

The Daisys claim that the exception applicable here is that the act to be performed will probably cause injury to others unless due precaution is taken. * * *

At the time of the accident in February, the ground was frozen and icy, a naturally occurring condition during the winter months in northern Indiana. See footnote And while those conditions may have contributed to the accident, they were not the cause. The cause of the accident was the failure of Prosser employees to safely secure the ladders they used to climb onto the roof of the house. There is no assertion that Roach had any control over the manner in which the ladders were used. While it may be true that Roach had ordered the workers to shut the doors to the home, obtain supplies, and generally directed how he wanted the house constructed, the evidence does not support the conclusion that Roach was in control of the manner in which the ladders were used. Rather, the only conclusion available from the facts before us is that Prosser controlled the use of the ladders on the site and the area where the accident occurred at the time it occurred. Thus, summary judgment was properly granted in favor of Roach. The judgment of the trial court is affirmed.
MAY, J., and VAIDIK, J., concur.

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

Law - Senator Edward's Legal Career

The NY Times has a very interesting feature today titled "Edwards's Lawyerly Style Drew Fierce Foes and Fans." A few quotes:

In Mr. Edwards's first race for public office, the 1998 Senate campaign, he "faced the charge that he was getting wealthy off the insurance companies and the H.M.O.'s," said Jack Fleer, emeritus professor of political science at Wake Forest University and author of the book North Carolina Politics. "But he turned that around," Professor Fleer continued, "saying that he was the advocate of the little guy. The general population may say sure, there is a problem with trial lawyers' getting rich off these cases. But there are also problems with corporations' being insensitive to average citizens."

Mr. Edwards won that race, to the relief of defendants here. In the two decades before that, his quick intelligence, native charm and impressive work ethic, coupled with his rigorous selection process, came to terrify his adversaries - often to the point where they would settle the cases upon learning that Mr. Edwards was involved. * * *

His very name had power, [former adversary, James P. Cooney III] said. When settlement discussions involving other plaintiff lawyers came to an impasse, they would invoke Mr. Edwards. "'You either pay me what I want or I'm going to get John Edwards,' they'd say," Mr. Cooney recalled. "They would be using his name for leverage, and I'm sure he never knew it was happening."

Michael J. Dayton, the editor of The North Carolina Lawyers Weekly, said that reputation was built on more than anecdotes and impressions. "The numbers speak for themselves," Mr. Dayton said. "He had over 42 multimillion-dollar verdicts and settlements and another 33 right near a million."

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

Law - Special Session Resolves Virginia Bill Drafting Problem

According to stories today in the Washington Post (here) and the NY Times (here), the Virginia General Assembly met yesterday in special session to resolve the problems caused by mistakes in drafting changes to their Sunday closing laws. A quote from the Post:

RICHMOND, July 13 -- It took a three-hour special session, dozens of votes, two committee meetings and an extended debate on the meaning of "shall," but Virginia's lawmakers managed Tuesday to undo their mistaken revival of a centuries-old right granting employees a "day of rest" on the weekends.

Nearly two-thirds of the state's 140 lawmakers trekked back to the Capitol for the rare, mid-July meeting of the General Assembly. Their goal: to put Virginia's code back the way it was 14 days ago, when most of the state's businesses were exempt from the blue law.

But nothing stays simple for long when you assemble dozens of lawmakers and more than that number of lobbyists and lawyers in the same building. * * *

See our earlier ILB entries (from July 7 & 8) here and here.

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

Law - Two front-page Wall Street Journal stories

The Wall Street Journal (paid subscription required) has two important front-page stories today:

Blakely. The headline "High Court Ruling Unleashes Chaos Over Sentencing: Judges, Prosecutors Put Aside Federal Guidelines, Fearing They're Unconstitutional - 'Boiling Frustration' on Bench".

Property Taxes. The headline: "Property-Tax Rise Triggers Backlash in Some Areas: Homeowners, Legislators Move to Limit Big Increases Used for Funding Shortfalls." But Indiana isn't mentioned in this story that reports "In many parts of the country in recent years, strapped local governments have imposed big increases in property-tax rates, as well as in home assessments, to fill budget shortfalls."

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

Law - More on Blakely

Cherry-picking through the now-voluminous online materials, here are three interesting/informative articles.

First, from Slate, an article that begins:

It was the cruelest of lawyer jokes: A man walks into a lawyer's office and says he's been indicted with partners on multiple counts of stock fraud. He sees the government's case as weak and wants to go to trial. The lawyer informs the stunned client that if he's convicted on only one count, the jury's not-guilty verdict on the other charges means little under the Federal Sentencing Guidelines. Why? A defendant may be punished for acquitted conduct if the judge merely believes he's guilty. The punch line: You can win at a trial only if there's a complete acquittal. If you're convicted of anything, you can be punished for everything.

It's not a very funny joke. Since the guidelines' advent, in the wake of the Sentencing Reform Act of 1984, only federal prosecutors have been laughing.

But late last month, the laughter stopped when the Supreme Court handed down its decision in Blakely v. Washington. * * *

Second, a 30-page 2nd draft of an article to be published in the Federal Sentencing Reporter later this month, by law professors Nancy J. King and Susan R. Klein, titled Beyond Blakely. From the intro:
Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakelys sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In Part III, we discuss Blakely challenges raised in cases on direct and collateral review. Finally, in Part IV, we collect some of the various options for reform open to Congress.
Finally, for now, I asked in an entry on July 8 (was it only last week?) "Will Blakely impact Martha Stewart sentencing?" Clearly it may. See this article from Newsday, which reports that:
Just a week before Martha Stewart is slated to be sentenced, her lawyers have asked a judge to toss out the federal sentencing guidelines when considering Stewart's fate, citing a recent Supreme Court ruling.

In motion papers filed with Manhattan U.S. District Court Judge Miriam Goldman Cedarbaum late Thursday, Stewart's lawyer, Robert Morvillo, asked her to declare the guidelines unconstitutional. If granted, Morvillo's motion could mean that Cedarbaum would have more discretion in deciding a prison sentence that is substantially less than the current estimated range of 10 to 16 months and instead impose a term of as little as probation.

And from the Slate article cited above:
Right now, judges, prosecutors, and defense lawyers are all over the map. Martha Stewart's lawyers are already seeking a Blakely ruling that the guidelines are wholly unconstitutional. They're asking the judge to sentence her, under discretionary pre-guidelines law, to probation rather than the prescribed guidelines range of 10 to 16 months. A federal judge in Utah also wrote a lengthy opinion concluding that where sentencing enhancements would offend Blakely, the guidelines should be scrapped altogether, and sentences passed under pre-guidelines law, although influenced by the guidelines. The Utah decision offers no support to Stewart, however, because Stewart's case does not involve Blakely-type enhancements, thus forcing her lawyers to argue that the entire federal sentencing act is unconstitutional.

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

Environment - Illegal dumping in the news today

First, there is this incredible story in the Chicago Tribune about illegal dumps in Harvey Illinois, that begins:

By nature, the city of Harvey is flat as a pancake, but in the last four years parts of town became suspiciously hilly, with a few peaks rising some 40 feet above grade.

Tens of thousands of truckloads of illegally dumped debris from construction sites, road projects and other refuse literally changed the landscape on the west side and left one piece of property on the east side looking like a ruined city, Atty. Gen. Lisa Madigan has charged.

In an effort to clean up the sites, Madigan's office and Cook County State's Atty. Richard Devine filed four lawsuits this year against landowners and a company operating on property belonging to the Harvey Park District, which owns a police firing range that authorities allege is an illegal dump site.

The goal is to have landowners pay to have huge amounts of waste hauled away to landfills, a task almost certain to cost tens of millions of dollars. If the suits are successful, the defendants could face fines of up to $10,000 a day until the sites are cleared, Madigan said. And Harvey could face one less challenge.

"It's become a chronic problem," Madigan said. "Southern Cook County, as everyone knows, is a low-income community. They already have an urban blight situation where they have businesses and residentially zoned areas that have been abandoned. ... Harvey doesn't need another eyesore." * * *

Madigan's office estimates 56,000 truckloads of waste lay beneath the 12-acre site belonging to Daniel Serritella, a friend of ex-Mayor Nickolas Graves. Thousands of loads are buried across Campbell Avenue, on a 6-acre site belonging to Harvey police officer Manuel Escalante, Madigan charges. * * * Graves, who was mayor when dumping at all four sites is alleged to have occurred, said he never knew of anything but legal fill material, primarily dirt, being hauled into Worthy Park. And he didn't know the extent of it because he rarely ventured into that corner of town, he said. "One day I went to go to the range ... and I couldn't believe it," he said.

Then there is a story in the Gary Post-Tribune, with the headline "Government hasnt sighted cited dump site" that begins:
SOUTH HAVEN Despite a recent well-publicized controversy about dumping on township property by the township trustee, the Porter County Planning Commission has not inspected the site.

On Tuesday, Porter County Planner Robert Thompson said he has seen photographs of discarded material behind Haven Hollow park on County Road 700N in South Haven, but still hasnt visited the site.

Thompson said he hasnt received an official complaint, which he needs in order to begin the necessary paperwork to document a zoning violation. Also, Thompson said, his office is busy with complaints, so it will be a while before he can investigate more. * * *

Portage Township Trustee Jack Jent has acknowledged disposing of township materials that ranged from old, unshredded checks and bank statements to grave blankets, but said the asphalt shingles there predated his administration.

When community activist Jeremy Rivas heard about the dump, he investigated and contacted the Porter County Environmental Department, which visited and determined most of the materials were legal for a clean landfill. Jent threatened to prosecute Rivas if he found him on the property again. * * *

When asked previously about the legality of the site, which is zoned rural residential, Thompson said he could not comment because he hadnt seen the area yet. In general, rural residential areas do not allow any type of landfill operations, he noted.

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

Indiana Law - Question in New Albany about a 1935 deed

This story today in the Louisville Courier-Journal reports that "Legal issues mar Floyd house move." Some quotes:

A meeting yesterday between lawyers for Floyd Memorial Hospital and a neighborhood group failed to resolve legal issues clouding a proposal to move 17 houses now in the path of the hospital's expansion. If the matter goes to court as the residents have said it might it could undermine a plan that city officials said would help them bring millions of dollars' worth of federal and state housing grants to New Albany. The plan is to relocate the houses to the McLean Ballfield, off Linden Street in western New Albany. The legal issues are complex and little-tested in court, the lawyers said. * * *

To allow the hospital's expansion, the New Albany Board of Zoning Appeals required Floyd Memorial to replace or retain affordable housing that might be lost as a result. Hospital and city representatives then put together a plan to move as many of the Cottom Avenue houses as possible to keep them from being demolished. The officials have estimated the value of the houses could be used as local matching funds to obtain $10 million worth of state and federal housing grants. * * *

[Officials] have been concentrating on plans to move the houses to a 5.8-acre ballfield off Linden Street that is owned by the state and leased to the New Albany-Floyd County Parks and Recreation Department. * * *

But people who live near McLean Field have questioned the impact on their neighborhood and hired Naville to fight the plan. The legal issue, [Mike Naville, a lawyer for residents of the neighborhood where city officials plan to move the houses] said, is a clause in the 1935 deed that Catherine Fawcett used to give the land to the city. The deed states that if the land isn't used for golf or some other recreation, it reverts to Fawcett's heirs.

The city transferred the land, along with other real estate, to the state in 1961. The clause is still on the deed, Naville said, and that could give his clients about 10 residents of the neighborhood a powerful legal weapon.

[Michael] Ward, the hospital's lawyer, said that in his view, the 1961 transfer of the land to the state eliminates the clause. Naville said he intends to meet with his clients later in the week.

Posted by Marcia Oddi on Wednesday, July 14, 2004
Posted to Indiana Law

Tuesday, July 13, 2004

Law - At 33, Seattle attorney has won two Supreme Court cases

"At 33, Seattle attorney has won two Supreme Court cases" is the headline to this story published Monday in the Seattle Times, about lawyer Jeffrey Fisher, who has won two cases this year before the Supreme Court, "the first criminal cases he had argued, at the Supreme Court or anywhere." More:

And these weren't just any old cases. Fisher's two wins could fundamentally change the way justice is doled out nationwide.

The Department of Justice has scrambled to write emergency procedures to deal with the latest Fisher case on criminal sentencing, and Congress, as well as state lawmakers across the country, already is trying to come up with a new law to fix the problems Fisher raised. Meanwhile, prosecutors and defense lawyers are coming to terms with the issues Fisher raised in his other case, which concerned defendants' rights to cross-examine witnesses. * * *

He came across the cases as a volunteer for the National Association of Criminal Defense Lawyers, reviewing criminal cases for potential appeals issues. Dinner-table conversations with Douglass about her day-to-day work in the criminal court helped him identify concerns. He then began searching the cases for the best examples he could use to right what he perceived as wrongs.

"Almost everybody thought I was going to lose," Fisher recalled of the cases he chose to fight.

He didn't. In March, he convinced the courts that defendants' rights to cross-examine witnesses against them have been deeply eroded, an opinion that overturned 25 years of precedent and has sweeping implications.

Then last month, the court ruled that sentencing rules that allow judges to add years to a defendant's sentence without the supporting facts being proved beyond a reasonable doubt are unconstitutional. The decision upset a system that has been in place in about a dozen states for more than 20 years and threatens the very foundation of federal sentencing, as well.

"What I have feared most has now come to pass," Justice Sandra Day O'Connor wrote in a passionate dissent on the most recent decision. "Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy."

This is the case that has created the most buzz. Already, several judges have decided that federal sentencing guidelines are unconstitutional.

The sentencing case is, of course, Blakely v. Washington. The other decision is Crawford v. Washington:

In this case, decided in March, the Supreme Court ruled that defendants have a constitutional right to cross-examine witnesses against them. The case involved a taped statement from the defendant's wife, which was played at trial even though the wife did not testify. The ruling has created concerns over whether tape recordings of 911 calls can be admitted as evidence.

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

Law - More on Blakely, via NPR

Trying to cover all the Blakely sentencing developments right now would be a full time job. Fortunately, we have someone doing that job, law professor Douglas A. Berman, via his outstanding Sentencing Law & Policy blog. There are several other useful sites; Berman provides links to them all. Also, his site has turned into a centralized collection point for useful documents and materials.

Meanwhile, for those of us who are only interested bystanders to the continuing developments occasioned by the Supreme Court's recent decision, Slate legal analyst Dahlia Lithwick had a good, and current, introduction today on NPR's Day to Day. Listen to it here. And then, if after listening you want to read the copies of the written Senate testimony from today's hearing, Professor Berman has them here on his site.

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

Indiana Decisions - One 7th Circuit Opinion Today

Montano, et al. v. City of Chicago (ND Ill.)

Before RIPPLE, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Behind a knotty set of questions relating to the coordination of parallel suits in state and federal court lies an unfortunate incident on the streets of Chicago, during which a group of Mexican-Americans were savagely beaten with metal flashlights, fists, and feet by some Chicago police officers. They were arrested and, after further abuse, released; ultimately all criminal charges against them were dismissed. The victims plaintiff Esteban Montao) sued the City and the officers in federal court on both federal and state law theories. Rather than deciding the whole case, the district court chose to keep the federal-law claims and to sever the supplemental state claims and dismiss them without prejudice. Faced with this turn of events, Montao re-filed the state claims in state court. The district court then resolved all but two of the federal claims in favor of the City defendants. At that point, matters took a highly unusual turn. Acting on its own initiative, the court first stayed the remaining federal claims pending the resolution of the parallel state court action, and then it converted the stay into a dismissal without prejudice pending resolution of the state-court action.

Believing that it has effectively lost its right to have a federal forum resolve (at a minimum) the federal claims, the City has appealed from the dismissal of the remaining federal claims. It wants us to undo the mess and reinstate the action in the federal court. Montao responds that the City is too lateit should in his opinion have filed immediate appeals from the earlier (interlocutory) orders. As we asked at oral argument, can we put this Humpty Dumptylike case back together again? We think there is a way, and so we reverse and remand for further proceedings. ***

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

Indiana Decisons - Three Court of Appeals Decisions Posted Today

Carl Spears v. State of Indiana (7/13/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

Based on the foregoing, we conclude that the trial court did not commit fundamental error when, after learning of a witness extra-judicial contact with a juror concerning an issue before the court, the juror was not replaced. Furthermore, we hold that the trial court did not
abuse its discretion by imposing the maximum sentence in light of the nature of the offense and character of the offender. Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.
Virginia Gifford, et al. v. Hartford Steam Boiler Inspection & Insurance Company, et al. (7/13/04 IndCtApp) [Procedure]
Riley, Judge
[The issue is] whether the trial court abused its discretion in denying her motion to set aside default judgment pursuant to T.R. 60(B). * * * Gifford was served by certified mail. On May 15, 1995, a document entitled Virginia Giffords Answer to Plaintiff Daniel Ericksons Complaint was filed with the trial court. The name immediately beneath the signature line is Greta Van Susteren. Beneath Ms. Van Susterens name is Wendy Ehrlich, Coale & Van Susteren, 5335 Wisconsin Ave N.W., Washington, D.C. 20015. No other pleadings were filed by Gifford in the case and no appearances were made by Gifford or anyone purporting to represent her. On May 7, 2001, the trial court began a jury trial, at which neither Gifford nor anyone purportedly representing her appeared. On the second day of trial, the trial court granted Ericksons motion for default judgment against Gifford. * * *

Our review of the instant record turns up nothing to indicate, and Gifford fails to direct us to any evidence that shows, that either person identified on Giffords answer was licensed to practice law or admitted pro hac vice in the State of Indiana. As a result, any brief, papers, or pleadings filed in this case by Greta Van Susteren or Wendy Ehrlich are a nullity. See Professional Laminate & Millwork, Inc., 651 N.E.2d at 1157 (where this court held without leave of the court, and absent the signature of local counsel licensed to practice law in this state, any papers filed by [Appellant] were a nullity). Accordingly, because Gifford failed to appear, plead, or otherwise timely respond to Ericksons Complaint in compliance with the Indiana Rules of Trial Procedure, we hold that the trial court properly granted Ericksons motion for default judgment on May 8, 2001. * * * Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.

Leo Hickman v. Irwin Union Bank & Joseph Hickman (7/13/04 IndCtApp) [Estates; Attorney Fees]

"This is the third of what now appears to be four appeals stemming from a family dispute over the guardianship of Josephine. The Hickman family owns Hoosier Outdoor Advertising Corporation (Hoosier Outdoor). Leos father was the president of Hoosier Outdoor from the 1950s until his death in 1977. * * *
On February 14, 1988, Josephine fell and hit her head. Josephine was severely injured and never fully recovered from the fall. She now resides in a nursing home. Despite her condition, Josephine retained her position as president of Hoosier Outdoor."

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

Monday, July 12, 2004

Environment - Stories Today

"EPA cites Indiana power plant" reports this AP story, just posted on the Indianapolis Star site. Some quotes:

CHICAGO -- U.S. Environmental Protection Agency has cited four American Electric Power plants in EPA Region 5 -- three in Ohio and one in Indiana -- for alleged clean-air violations.

In Ohio, EPA cited the Muskingum River Power Plant in Waterford; the Conesville Power Plant in Conesville; and the Cardinal Power Plant in Brilliant. In Indiana, EPA cited the Tanners Creek Power Plant in Lawrenceburg. The agency also cited three AEP power plants in West Virginia, which is in EPA Region 3.

EPA alleges American Electric Power modified the plants without getting permits designed to restrict their air pollutant emissions. Companies must get permits that restrict emissions from their plants before they can modify them in ways that increase emissions if the plants are located in areas that already comply with all national outdoor air-quality standards. These permits are designed to prevent deterioration of air quality in areas with clean air.

EPA alleges the violations have resulted in the release of massive amounts of sulfur dioxide, nitrogen oxide and particulate matter (soot) into the environment.

This morning's Star has an editorial about Cinergy's Gibson Power Plant that begins:
Nearly 8,000 residents in Mount Carmel, Ill., are suffering the unintended consequences of a $600-million effort to control nitrogen oxide emissions at Indiana's largest electric power plant.

Under certain weather or plant conditions, bluish clouds of sulfuric acid from one of the smokestacks at the Gibson Power Plant drift across the Wabash River, enveloping Mount Carmel in an irritating haze. It has been happening since selective catalytic reduction units, designed to substantially reduce nitrogen oxide emissions on two generators, went into operation this summer.

Although Cinergy officials who operate the plant near Princeton say preliminary testing doesn't indicate that levels of sulfuric acid in the haze pose a health threat, they take the problem seriously. Cinergy has tried temporary measures to reduce the pollutant while looking for answers as to why it's happening with only two generators -- not all five. The utility also is searching for long-term engineering solutions.

More severe problems at a massive coal-fired power plant in Ohio prompted American Electric Power to buy the entire neighboring town of Cheshire, and move its residents away. Cinergy officials don't think such drastic measures will be necessary in Mount Carmel, which has about four times the population of Cheshire.

The Star had a story this morning about Pete Drum, a retired engineer who:
maintains a Web site that contains monthly measures of bacterial contamination in the river -- courtesy of Indianapolis' Office of Environmental Services. Although the site doesn't get a lot of traffic, it attracts local activists, journalists, city contractors and politicians, Drum said. * * *

Drum joined Friends of White River, a nonprofit group to protect the river, a few months after it formed in 1985. But he says the majority of his environment-related activities didn't begin until after he retired in 1996.

Drum that year became interested in obtaining data on E-Coli levels in White River. Living by the river had inspired him, Drum said, and he hoped to get the information from the city. The response was emphatic and unambiguous:

"Stone wall, stone wall, stone wall," Drum said. "I was trying to get data and having a devil of a time."

But then an article in the newspaper described Drum's plight. "Bang, bang, within two days, people were having large meetings with me and handing me data, and I was appointed to this Wet Weather Technical Advisory Committee," Drum said.

"Nature lobbyist Dustin mourned statewide" is the headline to this story today in the Fort Wayne News-Sentinel:
Longtime local environmentalists Tom and Jane Dustin might be better remembered for their vocal and sometimes fierce efforts to protect the environment. But the Huntertown-area couple also tried to interest new generations of people in safeguarding natural resources and to prepare those converts for the battles lying ahead.

Early Friday, Tom Dustin passed the torch -- and the challenge -- to those new generations when he died after an extended illness. Arrangements are pending; his age and place of death were unavailable late Friday.

His death came seven months after the death of his wife in November.

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

Indiana Law - State laws on sex offenders

"Getting tougher on sex offenders: Region officials wonder if Indiana, Illinois laws are tough enough" is the headline to this story today in the Munster NWI Times. A quote:

Thirteen states and one city have adopted specific laws regulating where sex offenders can live or visit, The Times' research shows. Most of those laws keep sex offenders from living within certain distances of schools, day-care centers and other places where children gather. The remaining states leave such restrictions to the discretion of judges and probation officers on a case-by-case basis. * * *

Lake and Porter County probation officials believe that keeping predatory sex offenders on parole or probation for life -- thus leaving the residency restriction in place forever -- is an idea worth exploring.

However, if lawmakers in Indiana, Illinois or elsewhere intend to toughen existing residency restrictions on sex offenders or adopt new ones, civil rights experts argue they should do so with caution.

Such laws in at least two states are embroiled in constitutional challenges that argue residency restrictions punish offenders beyond their jail or prison sentences, drive predators underground and provide only a false sense of safety. * * *

While the law has withstood scrutiny in Alabama, constitutional challenges in both Iowa and Arkansas have kept legal officials from enforcing the regulations. * * *

Indiana and Illinois are among the states that impose restrictions on where some sex offenders can live in relation to schools and day-care facilities.

But when considering tougher models in Arkansas and Alabama, legal officials in the region wonder whether Indiana and Illinois also should adopt more restrictive laws to keep offenders farther away from schools -- and other potential victims -- longer.

Posted by Marcia Oddi on Monday, July 12, 2004
Posted to Indiana Law

Law - Court election a battle for clout

"Court election a battle for clout" is the headline to this AP story today in the Chicago Tribune that begins:

Trial lawyers and business groups are pouring money into an increasingly nasty race for an open seat on the Illinois Supreme Court, the latest flare-up in a long-simmering nationwide feud between the two powerful groups.

The campaign comes as tobacco giant Philip Morris is appealing an order to pay $10.1 billion in damages for misleading smokers. The state Supreme Court is due to take up the appeal next year -- after the new justice is sworn in.

On television, ads in the southern Illinois district get to the heart of the issue: One warns "predatory trial lawyers" are driving away jobs and doctors. "Sharks in fancy suits are getting rich at our expense," says the ad, paid for by the Illinois State Chamber of Commerce, a supporter of Republican candidate Lloyd Karmeier.

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

Law - Real Estate: Historic District Zoning

The Louisville Courier Journal has an interesting story today titled "Neighborhood Turf Tussles: What's history to some is dilapidated to others."

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

Potentially bad news

A word of warning. I'm sorry to report I'm having some technical problems with the host that houses The Indiana Law Blog. Their online database may not be able to handle the demands of the ILB along with all the others they serve at the same time. Posting is taking progressively longer. There is the chance the entire database may fail, or information may become corrupted. I may need to consider a dedicated server; definitely a more expensive alternative that the current setup. In the event we suddenly go offline and you can't access the Indiana Law Blog, go to enviro-info-solutions.com for instruction on how to find us. (Note there is nothing there right now and hopefully we'll never need to use this, but you may want to make a note of the link, or my email, just in case.)

Posted by Marcia Oddi on Monday, July 12, 2004
Posted to About the Indiana Law Blog

Indiana Decisions - Four 7th Circuit Decisions Today


"Davis challenges the district courts damages determination as to the loss of his VA benefits and the damages awarded for pain and suffering. We affirm."


Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. Anthony Riccardo, an inmate of the Centralia Correctional Center in Illinois, needed a new cellmate after his former cellmate complained about being housed with him. Normally that pairing would
have been made by Centralias placement office, but when the evening of May 28, 1997, arrived and some inmates remained unassigned after the regular placement officers had left, the task fell to Lt. Larry Rausch, who was serving the second shift. Rausch matched Riccardo with Juan Garcia, a pairing that should have lasted only until the placement officers on the day shift could review matters. Two days later Garcia sexually assaulted Riccardo, who sued Rausch under 42 U.S.C. 1983. A jury concluded that Rausch had subjected Riccardo to cruel and unusual punishment and awarded $1.5 million in compensatory damages. The district court entered judgment on this verdict, and Rausch appeals. * * *

Illinois is free, if it wishes, to give prisoners veto power over the identity of their cellmates. But the eighth amendment does not do so of its own force, and prisoners cannot use the Constitution to achieve this control indirectly by making unsubstantiated assertions. The constitutional question is not what Riccardo (initially) said, but what Rausch actually believed. Some prisoners are manipulative, some are mistaken, and some are not only honest but also accurate. The Constitution does not oblige guards to assume (on pain of absolute liability if an assault later occurs) that all prisoners are in the third category; Farmer articulates a different, and more demanding, standard, preserving room for both independent judgment and honest mistake on the guards part. This record does not permit a reasonable jury to find that Rausch knew or deliberately disregarded the fact that his actions subjected Riccardo to a substantial risk off serious harm, so the judgment is REVERSED.

WILLIAMS, Circuit Judge, dissenting. [with opinion] * * *

Plaintiff-appellee filed a petition for rehearing and rehearing en banc on March 12, 2004. In response to this petition, the panel has amended its opinion; the amendments are reflected in the immediately preceding revised opinion. 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. Today, the court allows to stand the decision of a panel majority that imposes on prison inmates a new and impossibly high standard of proof for establishing deliberate indifference in prison condition cases. * * *

WILLIAMS, Circuit Judge, with whom RIPPLE, ROVNER, and DIANE P. WOOD, Circuit Judges, join in dissenting from the denial of rehearing en banc. The majoritys opinion has incorrectly resolved and unjustifiably reframed both the Eighth Amendment standard for deliberate indifference as well as the Rule 50 standard to set aside a jury verdict. * * *

USA v. GARCIA-LOPEZ, JAVIER (ED Wis.) - Sentencing, remanded. [non-Blakely]


"The district court found that Moore consented to the search. Moores guilty plea was conditioned on allowing him to appeal the district courts denial of his motion to suppress, and that appeal is before us now. We affirm."

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

Indiana Decisions - Supplemental briefs in US v. Booker

The supplemental appellate briefs for the parties in the 7th Circuit appeal, United States v. Booker, are now available online. See earlier Indiana Law Blog entries here (7/9/04) and here (7/10/04).

Per How Appealing: "You can access the criminal defendant's winning supplemental brief at this link, and the federal government's supplemental brief can be accessed here."

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

Sunday, July 11, 2004

Indiana Law - Who Owns the Embryo?

"Couples fight over custody of embryos: As divorces, technology collide, state's judges join those deciding the fate of frozen fertilized eggs." That is the headline to this story today in the Indianapolis Star. Some quotes:

"Every year, there is an escalation in the number of human embryos frozen, and consequently disputes increase," said Lori B. Andrews, a law professor at Chicago-Kent College of Law and director of the Institute for Science, Law, and Technology at the Illinois Institute of Technology. "We have more frozen embryos, no good legal category and heartfelt feelings of divorcing couples about what should be done with their potential child." * * *

Once frozen, embryos can be stored indefinitely, implanted in a woman to achieve pregnancy, donated for research or destroyed. Experts don't know exactly how many disputes over frozen embryos have made it into courts. Six state supreme courts have issued decisions in such cases. Tennessee was the first in 1992, then New York in 1998, Massachusetts in 2000, New Jersey in 2001 and Washington in 2002. Iowa's high court weighed in late last year.

Inside Indiana. Such a decision hasn't come from Indiana's Supreme Court -- yet. * * * One Hamilton County judge has seen two divorce cases dealing with frozen embryos this year.

"I knew the court had a wide range of cases," said Hamilton Superior Court Judge Bernard L. Pylitt. "But I never thought the disposition of frozen embryos would be presented to me."

In his first five months on the bench, Pylitt handled two divorces with agreements stating what was to be done with each couple's frozen embryos. In one case, the couple agreed that the woman would get custody of the embryos and decide what to do with them.

Outside Indiana. Six state supreme court cases outside Indiana are linked in at least one important similarity: None of the decisions forces anyone to become a biological parent when he or she objects.

"In no case did the party who wished to become a parent with those embryos have the opportunity to become a parent," said Daar, who is writing a law book on reproductive technologies.

Six state supreme court cases outside Indiana are linked in at least one important similarity: None of the decisions forces anyone to become a biological parent when he or she objects. * * *

Circumstances surrounding each of the high court cases are vastly different. A look at them illustrates the motivations people have to use reproductive technology, as well as the scores of problems that come when a high-tech tug-of-war begins:

New Jersey's court decided that an unnamed couple's seven frozen embryos could not be used without agreement between both the egg and sperm donors. The high court decided that a woman's right not to procreate outweighed a man's right to potentially create a pregnancy with another woman.

In Massachusetts, the high court ruled that an unnamed couple's four frozen embryos could not be implanted in a woman because of her ex-husband's objection to having more children with her.

New York's Supreme Court ruled that Maureen and Steven Kass' five embryos were to be donated to research, in accordance with a 1993 agreement they signed. The decision came over the objection of Maureen Kass, who wanted to use them to become pregnant.

Tennessee's court ruled that Junior Lewis Davis' right not to have children outweighed Mary Sue Davis' rights to donate the embryos to an infertile couple.

Washington's court decided that the destiny of David and Becky Litowitz's two embryos should be determined by a contract, which called for them to be thawed and disposed of after five years. * * *

Indiana's and most other states' legislatures largely have steered clear of the hot-button issues that come with embryo storage. Only 10 states have laws concerning the use, storage and disposal of embryos, according to the National Conference of State Legislatures. This year, California, Maine, Maryland, New Jersey and New York legislators considered new laws.

Here is an article by Lori B. Andrews of Chicago-Kent College of Law, who is quoted in the Star story: "People as Products: The Conflict between Technology and Social Values."

Posted by Marcia Oddi on Sunday, July 11, 2004
Posted to Indiana Law

Indiana Law - The Putative Father Registry

The Fort Wayne Journal Gazette has a lengthy story today on Indiana's putative father registry. Some quotes:

When a putative father fails to assert said rights by neglecting to register with the Putative Father Registry, the states obligation to provide a child with permanent, capable and loving adoptive family becomes paramount, a 2000 court ruling said.

But that doesnt mean there arent concerns about the registrys constitutional status. In Zurawskis case decided two weeks ago the court noted that his only mistake was failing to register on a list he did not know existed.

Although the statute may give one pause considering fundamental due process rights, he has not raised the constitutional argument, and we will not do so the court said, choosing to sidestep the broader issue.

State and federal law ensures that citizens cannot be deprived of life, liberty or property without due process of law.

Until either the legislature or the Indiana Supreme Court intervenes, it is imperative that unwed fathers sign up on the registry either through the state or local health department. The registry went into effect in 1994 and had only about 50 names on it within the first six months.

Mary Hinds, a manager in the Vital Records office of the Indiana State Department of Health, said the list now contains 7,800 fathers. The 75 to 100 lawyers who work on adoptions check the registry every week, she said, and a small number are found on the putative father list. The adoptive parents pay a $50 fee to run the check and that money is used to support the registry.

Its for their own security to ensure a man isnt going to come along and say, Thats my child, and I want them back,  Hinds said. That is, in fact, the whole concept behind the registry.

Kirsh mentioned an early 1990s custody battle in Michigan involving Baby Jessica that received national attention. In that case, the mother signed adoption papers giving up custody of her child. She changed her mind two weeks later, and the putative father filed a paternity affidavit. Eventually, the courts took the tearful child away from her new adoptive parents and gave her to the biological mother and father.

The 2000 Court of Appeals opinion referred to is IN RE: THE MATTER OF THE PATERNITY OF BABY DOE, CHAD MICHAEL JONES v. MARY JANE MAPLE, JEFFREY GAUCK and MICHELLE GAUCK (8/30/00 IndCtApp), available here, which concluded:
Indiana has a strong interest in providing stable homes for children. B.G. v H.S., 509 N.E.2d 214, 217 (Ind. Ct. App. 1987), reh'g denied. To this end, early, permanent placement of children with adoptive families furthers the interest of both the child and the state. Id. If a putative father fails to register with the Registry within 30 days of the child's birth or the date of the filing of the petition for the child's adoption, whichever occurs later, the State's obligation to provide this child with a permanent, capable and loving family becomes paramount.

Jones argument is an invitation for us to reweigh the evidence. This we cannot do. Given the State's interest in providing the child with a permanent, stable and loving family, Jones' argument that it was impossible for him to comply with the time requirements of the Registry is unavailing. He therefore has no meritorious defense, and the trial court did not err in denying his motion to set aside the grant of summary judgment in favor of the Gaucks.

The Putative Father Registry law is located at IC 31-19-5. The law provides that maintaining the registry is the responsibility of the State Department of Health (ISDH). The only information I was able to find online about the registry at the ISDH site is in a writeup about the Department's Vital Records Office, in a 1/7/04 issue of The Express, a biweekly ISDH publication. Here is what it says on page 2:
Vital Records is also responsible for keeping a Putative Father Registry, Hinds said. This registry allows a man who may be a childs father, but who is not married to the childs mother when the child is born or who has not established paternity in court, to receive notice of adoption of a child he may have fathered. Posters, developed by the ISDH, outlining the procedures to register are displayed in hospitals. She said there are 7,400 people in the registry, which has been in existence since 1994.

Posted by Marcia Oddi on Sunday, July 11, 2004
Posted to Indiana Law

Saturday, July 10, 2004

Law - Medical Malpractice in Illinois

The Streator Illinois Times-Press has been running a series (reminiscent of the series run earlier this year by the Evansville Courier&Press) on medical malpractice.

Today's story is headlined "Malpractice rates wreaking havoc." Other stories include: "Doctors gambled and we lost" (available here); "Lawsuits weed out bad doctors" (available here); and "Illinois rates highest among neighbors" (available here). Some quotes from the rates story:

Many doctors believe that limits on jury awards are the solution to bring down liability insurance rates. Indiana, Missouri and Wisconsin have such limits, but Illinois and Iowa do not.

In 1976 and 1997, the Illinois Supreme Court ruled that caps on jury awards were unconstitutional because they discriminated against seriously injured, low-income patients.

Indiana differs

The Indiana Supreme Court has differed in its opinions. The states limit on economic and pain-and-suffering damages has not been struck down since its enactment in 1975. Lawmakers have changed the limit twice since that time.

Indiana has a $1.25 million limit on total damages. The state created a patients compensation fund subsidized by health care providers in 1975. The fund doles out money for jury awards up to $1 million after $250,000 of insurance coverage runs out.

The Indiana Supreme Court ruled in 1980 that the law was constitutional because it viewed limits on jury awards as a trade-off between providing money for awards and making sure doctors and their insurers stay in Indiana, said John Render, general counsel for the Indiana Hospital Association.

The law does not take into account medical malpractice lawsuits that could conceivably surpass the limit. These cases usually involve newborns or children who must be taken care of for the rest of their lives.

What happens when a case surpasses $1.25 million? The patients bear the burden, said Warren Mathies, legislative director for the Indiana Trial Lawyers Association. They end up on public assistance, he said.

We have never experienced the health care access problem or the incredibly high liability insurance premiums than other states, said Adele Lash, communications director for the Indiana State Medical Association.

Posted by Marcia Oddi on Saturday, July 10, 2004
Posted to General Law Related

Environment - The other side of stormwater requirements

This story in the Linton Daily Citizen gives a glimpse of how rural communities may perceive state-mandated environmental requirements:

[District 45 State Rep. Alan Chowning (D-Sullivan)] who's seeking re-election in November to a second term against former Republican Jasonville mayor Bruce Borders, also said "over regulation" by some state agencies is hurting small communities across the state.

"So many of the small towns have got into financial problems from IDEM (the Indiana Department of Environmental Management) that forces them to upgrade their sewage and water systems," he said.

Greene County Council member Ed Cullison asked Chowning about his view of state unfunded mandates forced on counties. "You (the legislature) are telling us we have to do this, but you don't give us any money to do it. So that means we might have to cut services and cut back on other things," he said.

Chowning, a former two-term Sullivan County Commissioner, said when he served on the local governmental level he also didn't like state mandates. "What's good for urban areas is not necessarily good for rural Indiana. As a county commissioner, I very much agreed with you. I hated the mandates, especially the ones that came with a price tag," he said. "I can't disagree with anything you said." * * *

Chowning has enjoyed his first two years in the General Assembly. "I have thoroughly enjoyed it. For an old country farm boy from Sullivan County the whole process is really quite thrilling to me," he said. "It's been very educational and I feel like I've been blessed to be able to participate in it. Three or four years ago the thought never crossed my mind that I might be able to do this."

He continued, "One of the things that has really surprised me about this is how many non-controversial issues there are. People think there is a lot of head-to-head combat and it's not like that at all. There are only a very few issues that come strictly Democrat or Republican issues. The majority of the issues -- probably 90 percent -- of things we enact are non-partisan."

Posted by Marcia Oddi on Saturday, July 10, 2004
Posted to Environmental Issues

Not law but interesting - Appalachia gets first crop of own doctors

"Appalachia gets first crop of own doctors: 40 from Pikeville school begin opening offices" is the headline to a story today in the Louisville Courier-Journal. It starts:

PIKEVILLE, Ky. Painfully aware that recruitment programs alone weren't enough to fill the need for physicians, people in central Appalachia pulled off a radical plan.

They created their own medical school and began training their own doctors.

The first 40 homegrown physicians from the Pikeville College School of Osteopathic Medicine finished their residency programs earlier this month and have begun opening offices in communities throughout the mountain region. Hundreds more are in the pipeline.

"It's been a long road," said Dr. Thad Manning, who will begin his practice next month at Regina, a tiny coalfield community about 10 miles south of Pikeville. "You're talking quite a long period that you put your life on hold, without work, without income, but there's just such a need for medical care in this area."

Posted by Marcia Oddi on Saturday, July 10, 2004
Posted to General News

Indiana Courts - More on: Why no Indiana Justices on How Appealing?

As I wrote in a July 6th entry, "It sure would be nice to see a justice of the Supreme Court of Indiana as a participant, either next month or sometime in the future lineup," in How Appealing's monthly interview feature: "20 Questions for the Appellate Judge."

Alas, it is not to be, in August at least. That is the bad news. The good news is, a volunteer has stepped forward. Howard Bashman announced here this morning, "I am very pleased to announce that Seventh Circuit Judge Frank H. Easterbrook will be this Web log's August 2004 "20 questions" interviewee."

Posted by Marcia Oddi on Saturday, July 10, 2004
Posted to Indiana Courts

Environment - W Va. federal judge rejects nationwide permit for mountaintop mining

"Federal Judge Rejects Process for Approval of Mining" is the headline of this story today in the NY Times. Some quotes:

A federal district judge in West Virginia struck down on Thursday an Army Corps of Engineers procedure that gives a blanket pre-clearance to Appalachian mining operations that dynamite away mountaintops and dump some of the refuse into streams.

The judge, Joseph R. Goodwin of Federal District Court in Charleston, ruled that the procedure, called a nationwide permit, improperly bypasses the requirement that the impact of mining on streams be determined "before, not after" such a permit is granted.

The judge added that the general permits allowed "an activity with the potential to have significant effects on the environment to be permitted without being subject to public notice or comment," in violation of the Clean Water Act. He added that "a post hoc, case-by-case evaluation of minimal impact defeats" the purpose of the law.

Currently, 11 mining operations are under way under the general permit process that was just voided. Judge Goodwin suspended any operation that had not begun construction by Thursday, the day of his ruling. * * *

In his ruling, Judge Goodwin said that citizens did not have enough access to the decision-making process. Speaking of the environmental groups that brought the action, he wrote that the nationwide permit procedure "has abolished the plaintiffs' opportunity to object to proposals to discharge before they are authorized, and the nature of the corps' permitting process has made it difficult to object afterward." The permit, he said, "is already impacting the waters of the United States," adding that a federal Fish and Wildlife Service estimate showed that hundreds of miles of streams in the Appalachian coal fields have been filled in accordance with the general permit.

Here is a story from the Chicago Tribune.

Here is the opinion: Ohio Valley Environmental Coalition, et al v. Bulen (SD W.Va. 7/8/04).

Posted by Marcia Oddi on Saturday, July 10, 2004
Posted to Environmental Issues

Indiana Decisions - More on 7th Circuit's Blakely ruling

The defense attorney who argued the US v. Booker case [see entry immediately below] before the 7th Circuit, T. Christopher Kelly, posted this entry yesterday on the law blog, Talk Left (which provides "Liberal coverage of crime-related political and injustice news"):

The Seventh Circuit this afternoon declared the federal sentencing guidelines unconstitutional as applied to a sentence that was enhanced on the basis of facts that were not determined by a jury. This appears to be the first appellate decision to find that the Supreme Court's decision in Blakely requires facts that determine a guideline sentence to be found by a jury.

The court did not decide whether the guidelines are unconstitutional in their entirety. It did not decide whether the guideline requirement that judges find sentencing facts can be severed from the other guideline requirements, leaving that for the district court to consider on remand.

For outstanding (and tireless) coverage of Blakely, and sentencing law in general, I again recommend Ohio State Law Professor Douglas A. Berman's Sentencing Law and Policy Blog.

For background, check this article in Slate titled "The Incredible Shrinking Judiciary: The federal bench starts to throw off its shackles."

Posted by Marcia Oddi on Saturday, July 10, 2004
Posted to Indiana Decisions

Friday, July 09, 2004

Indiana Decisions - 7th Circuit issues Blakely decision

As reported just a few minutes ago by How Appealing, "Divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit holds that, under Blakely v. Washington, judicial application of the Sentencing Guidelines violates the defendant's right to trial by jury under the Sixth Amendment."

Here is the link to the decision and my usual "edited opinion", hitting the high points of this important ruling in our circuit.

United States v. Booker (WD Wis.)

Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
POSNER, Circuit Judge. * * * We have expedited our decision in an effort to provide some guidance to the district judges (and our own courts staff), who are faced with an avalanche of motions for resentencing in the light of Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), which has cast a long shadow over the federal sentencing guidelines. We cannot of course provide definitive guidance; only the Court and Congress can do that; our hope is that an early opinion will help speed the issue to a definitive resolution. * * *

It would seem to follow, therefore, as the four dissenting Justices in Blakely warned, * * * that Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge. The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines, might have said, no it doesnt; it did not say that. * * *

As an original matter, then, we think that the guidelines, though only in cases such as the present one in which they limit defendants right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely. We cannot be certain of this. But we cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it. * * *

We conclude that Booker has a right to have the jury determine the quantity of drugs he possessed and the facts underlying the determination that he obstructed justice. The judgment must therefore be reversed and the case remanded for resentencing. If the government does not object, the judge can simply sentence Booker to 262 months, since the choice of that sentence would not require any judicial factfinding. But if the government wants a higher sentence or unless, as explained below, the guidelines are not severable, then Booker, unless he strikes a deal with the government, will be entitled to a sentencing hearing at which a jury will have to find by proof beyond a reasonable doubt the facts on which a higher sentence would be premised. There is no novelty in a separate jury trial with regard to the sentence, just as there is no novelty in a bifurcated jury trial, in which the jury first determines liability and then, if and only if it finds liability, determines damages. Separate hearings before a jury on the issue of sentence is the norm in capital cases.

Of course this will not work if the facts that the government would seek to establish in the sentencing hearing are elements of a statutory offense, for they would then have to be alleged in the indictment, and to re-indict at this stage would present a double-jeopardy issue. * * *

To summarize: (1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancementsthat is, no factual findings by the judge increasing the sentencethere is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence. REVERSED AND REMANDED.

Easterbrook, Circuit Judge, dissenting. My colleagues hold that, after Blakely v. Washington, No. 02-1632 (U.S. June 24, 2004), judicial application of the Sentencing Guidelines violates the defendants right to trial by jury under the sixth amendment. I disagree with that holding on both procedural and substantive grounds. This is the wrong forum for such a conclusion; and whatever power we may possess should not be exercised to set at naught a central component of federal criminal practice. * * *

Apprendi and Blakely hold that the sixth amendment commits to juries all statutory sentencing thresholds. Perhaps the Court eventually will hold that some or all of the additional determinations that affect sentences under the federal Sentencing Guidelines also are the province of jurors. But Blakely does not take that step, nor does its intellectual framework support itand Edwards holds that the current structure is valid provided that juries make all decisions that jack the maximum sentences. I would treat Blakely as holding that, when there are multiple statutory caps, the statutory maximum is the lowest one and the jury must determine whether statutory thresholds to increased ranges have been satisfied. To read more into Blakely is to attribute to that opinion something beyond its holding, and to overthrow the real holdings of other decisions.

Todays decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.

Posted by Marcia Oddi on Friday, July 09, 2004
Posted to Indiana Decisions

Indiana Law - Two Court of Appeals Decisions Posted Today

Robert Howard v. U.S. Signcrafters (7/9/04 IndCtApp) [Worker's Compensation]

Robert Howard (Howard) appeals the Workers Compensation Boards (the Board) decision that Howard should take nothing by way of his application for adjustment of claim. The Board specifically found that Howard was an independent contractor and not an employee of U.S. Signcrafters under the Indiana Workers Compensation Act (the Act). Howard appeals raising two issues: Whether the Board erred when it determined that he was not an employee of U.S. Signcrafters; and, Whether the Board erred when it did not address whether Howard was eligible for benefits under Indiana Code section 22-3-2-14. * * *

Howard controlled the details of his sign removal work, provided his own trucks, and operated Custom Signs, whose regular business included sign removal. Furthermore, he was never on U.S. Signcrafters payroll and the work was to be performed over the span of four nights. Based upon the Boards factual findings, and applying the ten-factor test as set out in Expressway, we conclude that Howard was an independent contractor and not an employee of U.S. Signcrafters at the time he was injured. * * *

Howard was the owner of a sole proprietorship called Custom Signs. While sole proprietors may elect to make themselves employees of their sole proprietorships under Indiana Code section 22-3-6-1(b)(4), Howard did not do so. Howard failed to maintain workers compensation coverage for his business. As a result, he was unable to elect to treat himself as an employee for workers compensation purposes. Howard is therefore not an employee of Custom Signs under the workers compensation statute, and Indiana Code section 22-3-2-14 does not apply to his injury. The Full Board properly concluded that Howards injury was not compensable under the Workers Compensation Act.

Conclusion. The Board properly concluded that Howard was not an employee under the Workers Compensation Act and that his injury was not compensable. Accordingly, we affirm the Boards decision. Affirmed.
BARNES, J., and CRONE, J., concur.

Arturo Aguilar v. State of Indiana (7/9/04 IndCtApp) [Criminal Law & Procedure]
Crone, Judge
[The question here was whether the trial court abused its discretion in refusing his tendered jury instruction on voluntary manslaughter as a lesser included offense of murder.]

Aguilar contends that his arguments and altercations with Michael, several hours before the murder, were sufficient provocation to engender passion. However, the record indicates that Aguilar returned to Michaels apartment after their altercation in the bar, retrieved a knife from her kitchen, donned latex gloves, hid in her bathroom, waited several hours for her return, and stabbed her to death. This evidence does not support an inference that Aguilar acted under sudden heat. See Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997) (holding that evidence was insufficient to support determination that defendant acted in sudden heat where sufficient time elapsed affording defendant time for cool reflection); see also Culver, 727 N.E.2d at 1071 (noting that establishing that defendant was angry does not, standing alone, show sudden heat; there must be evidence that someone provoked the defendant). Accordingly, the trial court did not abuse its discretion in refusing to give Aguilars tendered instruction on voluntary manslaughter as a lesser included offense of murder. Affirmed.
BAKER, J., and BARNES, J., concur.

Posted by Marcia Oddi on Friday, July 09, 2004
Posted to Indiana Decisions

Law - Problem of Ineffective Counsel in Virginia Highlighted

The Washington Post ran a three-part series of editorials this week on fixing the problem of inadequate representation of indigent criminal defendants in Virginia. [Thanks to the SW Virginia Law Blog for the links.]

The 7/5/04 editorial begins the series, reporting on how errors of attorneys impact their indigent clients. One attorney is spotlighted as:

among the state's leaders in botched appeals. Over the 15 months we examined, his filing errors caused the Court of Appeals to dismiss six of his clients' appeals without hearing them. The data we collected from the court reveal no lawyer in the state responsible for more such errors than Mr. Robinson during 2003 and the first quarter of this year. Mr. Robinson blew cases in which he was appointed by courts to represent indigent defendants and cases in which he had been retained; he blew cases by failing to file petitions on time and by failing to file trial transcripts on time. In two of the cases in our study period, including that of Mr. Watts, he blew appeals he had blown once before.

Mr. Robinson's troubles meeting deadlines are no secret to the Virginia State Bar. In 2000, he was publicly reprimanded for conduct related to a procedural default. In 2002, he was reprimanded again. And he has been held in contempt of court for failing to show up for his clients' hearings. Yet Mr. Robinson remains eligible to take on new work and to represent in state court defendants who cannot afford a lawyer.

The appeals court dismissed Mr. Watts's first appeal in April 2002 because Mr. Robinson had not filed the transcripts on time. In response, Mr. Robinson filed a petition -- known as a habeas corpus action -- to get the appeal restored. But having accomplished that, he then failed to file the appeal petition itself on time, and the court once again dismissed the case last August.

In an interview, Mr. Robinson acknowledged all six of the recent defaults. Three of the cases, he said, resulted from clients' inability to pay for transcripts or his fees. Two, including Mr. Watts's, he blamed on his secretary, who attributed them to a knee injury. One, he says, was the result of confusion brought on by misleading information from the court itself. Mr. Robinson notes that in some cases he petitioned to get delayed appeals for his clients. He filed a petition to get Mr. Watts's appeal restored -- once again -- last month.

The 7/6/04 editorial details some of the excuses used by lawyers:
Yet Mr. Lassiter -- and William P. Robinson Jr., about whom we wrote yesterday -- are far from the only lawyers in the state who repeatedly compromise their clients' appeals but continue to practice law. All told, we identified more than 40 attorneys statewide who defaulted more than one case and 12 who defaulted three or more during the period we examined. A few warrant particular mention * * *.
The examples are well worth reading.

Finally, the 7/7/04 editorial concludes the series. Some quotes:

THE SUPREME Court ruled in 1963 that states must provide effective counsel to poor people who wish to appeal their criminal convictions. Virginia is failing systematically to do so. The Virginia Court of Appeals resolved more than 11 percent of its criminal cases in 2003 without ever reaching their merits but, rather, on the basis of technical filing errors -- overwhelmingly missed deadlines by lawyers who were supposed to be protecting their clients' rights. Many of these lawyers blew cases repeatedly with no consequences to themselves. And the result is that, more than 40 years after the Supreme Court articulated the right to counsel on appeal, many defendants -- preponderantly the poor -- are being denied the basic right the court proclaimed. To make that right a reality, a lot in Virginia will need to change.

The court's rules, for starters, are nonsensically inflexible. Why should a defendant lose his right to appeal a conviction because his lawyer files his transcripts or his appeal petition a day late? Virginia's rules function as a game of "gotcha," wherein errors that have no bearing on the guilt or innocence of the defendant or on the legality of his trial become dispositive grounds for keeping him locked up. Moreover, the law makes it difficult for defendants to get appeals restored without compromising their ability to challenge their convictions. None of this is fair or rational.

Lawyers, however, are bound to follow even irrational rules when their clients' interests depend on it. And the state bar and courts alike therefore have a duty to keep track of lawyers who can't be troubled to do so -- and then to discipline them. In a recent interview, the state bar's ethics watchdog, Barbara Williams, said she hopes a new bar task force on indigent defense will examine the issue of procedural defaults in detail and said her office will "follow up" aggressively.

The courts need to assist the bar in learning the full scope of the problem. Currently, the courts do not refer orders dismissing blown cases to the bar or even maintain figures on the frequency of such dismissals. So to know who is throwing their clients' rights away, one has to sift manually through the large numbers of orders the courts issue on a daily basis -- which nobody does.

Posted by Marcia Oddi on Friday, July 09, 2004
Posted to General Law Related

Indiana LAW - PERF Audit Now Available

In an update posted on its website at 12:03 pm today, the Indianapolis Star, in a story headlined "Audit reveals depth of state pension troubles," reports:

A State Board of Accounts audit of the $11 billion public pension fund released today outlines significant and alarming problems -- ranging from accounts that haven't been balanced in years to incorrect pension payments to retirees.

The audit found 23 significant problems with the fund, which serves more than 500,000 public employees, retirees and their families. Many of these problems were repeat concerns -- problems with accounting, finances and internal controls that have been repeatedly raised by auditors over the last five years. * * *

Some of the auditors' findings:

Accounts hadn't been balanced in years -- with some discrepancies as big as $38 million. As of August 2003, more than $2 million in manual checks issued during the previous year hadn't been recorded.

There was an absence of reviews and approvals for transactions, accounting entries and benefits issued to retirees.

There was little segregation of duties. For example, the same person could issue, record and mail a check.

The Star has also posted the 38-page State Board of Accounts Audit Report of PERF, for the period from July 1, 2002 to June 30, 2003.

Posted by Marcia Oddi on Friday, July 09, 2004
Posted to Indiana Law

Indiana Decisions - Two from 7th Circuit Today


Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
BAUER, Circuit Judge. Robert Hudson filed suit against the Chicago Transit Authority on July 7, 1998, alleging breach of contract, retaliation and racial discrimination. Fourteen counts of his twenty-count complaint are Title VII discrimination and retaliation claims based on promotions given to other CTA employees that Hudson thought he deserved. The remaining six counts are based on allegations that the CTA breached a 1995 settlement agreement that settled a prior discrimination suit brought by Hudson. The district court granted CTA summary judgment for all of Hudsons claims except for two of his breach of contract claims. The court then dismissed those remaining two claims for lack of jurisdiction. Hudson appeals the courts order granting the CTA summary judgment on his claims. We affirm.
Before FLAUM, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. The M/V Morgan, a tugboat pushing four barges, allided [1] with the 95th Street Bridge in Chicago, Illinois. The impact disabled the bridge, severingeight of its ten electrical cables. A suit by the City followed. The district court, applying the Oregon presumption of fault against a moving vessel which strikes a stationary object, The Oregon, 158 U.S. 186 (1895), found the M/V Morgan presumptively at fault based on its negligent reaction to a mechanical failure but also held the City partially liable for the allision for failing to adequately protect the electrical cables. The court determined that the parties were equally liable and apportioned damages accordingly. The M/V Morgan appeals, arguing that the district court erred in its application of the Oregon rule and its apportionment of damages. We find that the Oregon rule applies, the M/V Morgan failed to exonerate itself from liability, and the record supports the district courts decision to apportion damages equally. Therefore, we affirm.
[1] An allision occurs when a vessel strikes a stationary object. 2 Thomas J. Schoenbaum, Admiralty & Maritime Law 14-2 (2d ed. 1994).

Posted by Marcia Oddi on Friday, July 09, 2004
Posted to Indiana Decisions

Indiana Courts - Local court news today

"Courts lose file in Crown Point party case" is the headline to this story in the Gary Post-Tribune. It begins:

CROWN POINT The case of a special education teacher at Crown Point High School who was charged in March with a holding a keg party for minors seems to have vanished. Janet Wilson was charged in March with recklessly furnishing alcohol to minors, a misdemeanor, in Crown Point City Court. The case was transferred afterward to Lake County Superior Court.

On Thursday, a check of county court records failed to find the case and no judge has been assigned to it. * * * Officials with county courts Thursday were not able to find the transferred case in the computer system.

"Experts question scientific sense of substance law" is the headline to this story in the South Bend Tribune. Some quotes:
St. Joseph County Prosecutor Michael Dvorak is charging Feely under a law that makes it a Class D felony to cause serious bodily injury while operating a motor vehicle with a controlled substance in the body.

Dvorak's burden of proof is much lighter than it was when the law was first enacted in 1994. Initially, a controlled substance had to be in the blood. But prosecutors were losing in court because too many police, through either laziness or ignorance of the law, were collecting only urine from defendants after accidents and were failing to collect blood, said Andy Maternowski, a South Bend native who now practices criminal defense law in Indianapolis and often handles drug-related cases.

So in 1997, the General Assembly broadened the scope of the law, changing its language to say that, for a conviction, controlled substances "or their metabolites" could now be present in the body rather than just the blood.

Roger Maickel, a Purdue University professor emeritus of pharmacology and toxicology, said the revised law is not grounded in science. "I would not consider that a medical or scientific definition, but that does not surprise me with the Legislature," said Maickel, who has studied the field for 44 years. "Scientifically speaking, that's a bad law. A drug in the urine is not in the body. Geographically it is, but not medically. It cannot get in the brain, so it cannot have any effect (on driving), very simply."

Professor James Klaunig, director of toxicology at the Indiana University School of Medicine and former director of the state's Department of Toxicology, agreed. "What we teach is, material in urine shows use, material in blood shows impairment," Klaunig said. Klaunig said marijuana can remain detectable in the urine of a frequent user, or someone who smokes daily, for up to 28 days. It can linger in occasional users for up to two days, he said.

"Judge overturns jury's verdict for molester" is the headline to this story in the Muncie StarPress. Some quotes:
MUNCIE - A deputy prosecutor said Thursday he was "shocked" by a judge's decision to overturn a jury's verdict that a Muncie man was guilty of failing to register as a convicted sex offender.

A Delaware Circuit Court 3 jury this week found 34-year-old Orval M. Casada - convicted of charges stemming from sexual assaults on children in 1991 and 2001 - guilty of failure to register, a class D felony carrying a maximum three-year prison term.

The following day, however, Judge Robert Barnet Jr. - who had earlier rejected two proposed plea agreements in the Casada case - overturned the jury's verdict, ordering Casada released from the county jail.

"In 10 years as a deputy prosecutor, I have never even heard of a judge vacating a guilty verdict in a criminal case, thus letting the defendant go free," Deputy Prosecutor Mark McKinney said. "He forces this into a trial. The jury convicts in 20 minutes and then overnight he decides there was no evidence to support the elements of the crime and the jury was wrong. We are shocked."

Barnet said Thursday he was forbidden by law from publicly discussing his rulings. However, in his written order vacating the jury's verdict, Barnet ruled the prosecutor's office had failed to include mandatory language - the phrase "knowingly and intentionally" - in the original documents charging Casada with the crime.

In his order, Barnet said prosecutors were required under state law to use that terminology, and then to prove in court that Casada knew he was required to register as a sex offender and failed to do so.

McKinney said prosecutors would appeal Barnet's ruling and try to persuade a state appeals court to reinstate the guilty verdict. Local prosecutors have already met with representatives of the state attorney general's office about pursuing the appeal.

"This was a technicality that could have been overcome without the drastic result that we ended up with," the deputy prosecutor said. "It was an error that didn't seem as egregious as [Barnet] has made it out to be."

Posted by Marcia Oddi on Friday, July 09, 2004
Posted to Indiana Courts

Indiana Decisons - - Transfer List for Week Ending July 9, 2004

Here is the Indiana Supreme Court's transfer list for the week ending July 9, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, July 09, 2004
Posted to Indiana Transfer Lists

Thursday, July 08, 2004

Environment - Stories today

Goosepond (or Goose Pond). Stories today here in the Indianapolis Star and here in the Linton Daily Citizen discuss the potential acquisition of the property (8,000 acres of Greene County wetlands and uplands, located south of Linton) by the State.

Coal mine. According to this story in the Evansville Courier&Press today:

Miners are asking the Indiana Department of Natural Resources to hold off on releasing nearly $500,000 bond money on Peabody's Squaw Creek Mine in Warrick County until they get more answers about hazardous waste dumped at the mine. Alcoa, which owns the land, and the Indiana Department of Environmental Management are continuing to work out details of what kind of additional testing and cleanup may need to be done, said Lynette Schrowe, the state project manager for the site.
Air Pollution. "Spoiling the Dunes" is the headline of this story today in the Gary Post-Tribune (story accessible only today) that includes these quotes:
In the tiny lakefront community of Ogden Dunes, the problem is perhaps its most visible. Steel mills, a power plant and other assorted heavy industries loom from a few hundred yards to a few miles from upscale beach homes. With so many smokestacks, its difficult to tell just where problems are originating.

On Tuesday, West presented a baggie with black particles he wiped from his grill to Coleman, a member of the towns environmental advisory committee. Coleman will pass the sample on to the Indiana Department of Environmental Management so its contents can be analyzed and, the men hope, its owner identified. * * *

Both Coleman and West said they believe IDEM and the EPA are not doing all they can to protect the lakefront town. Coleman said the community has to push both agencies to get them to reply to complaints and do anything about them.

An example, said Coleman, is Amrox, a steel-waste processor near the town that was cited by the EPA in 2001 for operating illegally. Coleman said the town is still waiting to hear from the EPA about what penalties and corrective action will be handed down to Amrox, and is concerned the EPA may lower its standards to help the company.

Brent Marable, the EPA Illinois and Indiana enforcement section chief in Chicago, said the agency issued a violation notice to Amrox and is in confidential negotiations with the company. Marable said he understands residents are frustrated, but the agency is trying to quickly resolve the problem. Marable said the company will have to follow the rules like all other companies.

There are sources of air pollution in the Ogden Dunes area, Marable said. We have done a number of inspections and investigations in the area. Citizen complaints are something we give great attention to and appreciate receiving here.

Paul Dubenetzky, IDEM chief of the permit branch in air quality in Indianapolis, said he probably will issue a permit to Amrox after he gets a time frame for compliance from the company. Dubenetzky said Amrox must make sure its hydrochloric acid comes in contact with more water before it leaves the smokestacks, and that the water mist doesnt come out of the stacks.

Phil Perry, IDEM air compliance branch chief in Indianapolis, said the state agency has received a number of complaints from residents in Ogden Dunes, ranging from odors to breathing and health problems. Perry said he is not surprised, because the town is an isolated community surrounded by heavy industry. * * *

Perry said IDEM is trying to get more sampling canisters into Ogden Dunes so air can be collected when it is questionable. Also, IDEM will take any samples collected by residents and analyze the particles, Perry said. He noted IDEMs strategy is to meet with complainants, provide canisters, continue inspections and seek more compliance from violators.

Posted by Marcia Oddi on Thursday, July 08, 2004
Posted to Environmental Issues

Indiana Decisions - Two Court of Appeals and Two Tax Court Decisions Posted Today

David A. Yoquelet, et al., v. Marshall County (7/8/04 IndCtApp) [Procedure]
Sharpnack, Judge

David Yoquelet and other former employees of Marshall County (collectively Employees) appeal the trial courts grant of Marshall Countys motion for summary judgment. Employees raise one issue, which we restate as whether the trial court erred by granting Marshall Countys motion for summary judgment in part. Because the appellants have not provided us with the materials necessary to consider their appeal, we affirm. * * *

The only portion of the record that Employees submitted was the trial transcript and accompanying exhibits, the trial courts June 18, 2003, judgment for Marshall County, and the trial courts January 28, 2003, order granting Marshall Countys motion for summary judgment. As previously mentioned, we may consider only those portions of the pleadings, depositions, and any other matter specifically designated to the trial court for purposes of the motion for summary judgment. Without the designated evidence, which the trial court relied upon in drafting its summary judgment order, we cannot review the trial courts decision to grant Marshall Countys motion for summary judgment. As a consequence, Employees have failed to prove that the trial court erred, and the presumption of the validity of the summary judgment remains.
For the foregoing reasons, we affirm the judgment of the trial court. Affirmed.
VAIDIK, J. concurs
MATHIAS, J. dissents with separate opinion:

I respectfully dissent from the majoritys decision to resolve this case based upon Employees failure to file the Appendix required by Appellate Rules 49 and 50. I believe that while Employees failure is not to be countenanced, an appellate order to supplement is the proper procedure for our court in these circumstances in civil cases, as well as in criminal cases. Ind. App. R. 49(B).

If Employees failed to comply with such an order, then the appeal could be dismissed, rather than resolved on the burden of proof. All cases, criminal and civil, are too important to resolve other than on their merits, except in unusual circumstances which are not present here.

Eddie Trail, et al. v. Boys & Girls Club of Northwest Indiana, et al. (7/8/04 IndCtApp) [Employment Contracts; Torts]
Sharphack, Judge
[The Trails appeal the trial courts grant of a motion to dismiss filed by the Defendants. Some citations omitted.] Even viewing the Trails breach of contract claim in a light most favorable to them, we conclude that under the facts alleged in their complaint Eddie was an at-will employee and that the Trails provide no authority to demonstrate that the facts alleged in the complaint are capable of supporting a breach of contract action against the Club. Further, the Trails do not allege or argue that Eddie had a contract with the members of the Executive Committee in their official capacity or the Individual Defendants. Consequently, the trial court did not err by dismissing the Trails breach of contract claim. * * *

Viewing the Trails tortious interference claim against the Individual Defendants in a light most favorable to them, we conclude that the facts alleged in their complaint are sufficient to support a tortious interference action against the Individual Defendants. Consequently, the trial court did not err by dismissing the Trails tortious interference claim against the Club and the members of the Executive Committee named in their official capacity. However, the trial court erred by dismissing the Trails tortious interference claim against the Individual Defendants. Accordingly, we reverse the trial courts dismissal of the tortious interference claim against the Individual Defendants and remand the case for further proceedings consistent with this opinion. * * *

Although unartfully pleaded, the complaint placed the Defendants on notice as to the theory of Eddies defamation claim and its underlying facts and is capable of supporting a defamation claim. Accordingly, we reverse the trial courts dismissal of this defamation claim and remand the case for further proceedings consistent with this opinion. * * *

The last issue is whether the trial court abused its discretion by dismissing Katrinkas claim for loss of consortium. The trial court found that Katrinkas loss of consortium claim failed because Eddies claims failed. A loss of consortium claim is derivative of the injured spouses claim. Thus, if the spouses cause of action fails, the loss of consortium claim falls with it. Id. Because the trial court erred by dismissing Eddies tortious interference and defamation claims, Katrinkas loss of consortium claim survives. Consequently, the trial court erred by dismissing Katrinkas loss of consortium claim to the extent that it relates to Eddies surviving tortious interference and defamation claims.

In summary, we affirm the trial courts grant of the Defendants motion to dismiss as to the breach of contract claim and the tortious interference claim against the Club and the members of the Executive Committee in their official capacity. We reverse the trial courts dismissal of Eddies tortious interference claim against the Individual Defendants, Eddies defamation claim, and Katrinkas loss of consortium claim as it relates to Eddies surviving claims. We also note that the Trails request that we allow them the opportunity to file an amended complaint if we affirm the trial courts dismissal of their claims. * * *

A plaintiff is entitled either to amend his complaint pursuant to Ind. Trial Rule 12(B)(6) or to elect to stand upon his complaint and appeal from the order of dismissal. If the plaintiff elects to stand upon his complaint and appeal from the order of dismissal, the dismissal becomes an adjudication on the merits. Thus, we cannot grant the Trails request to allow them to amend their complaint.

For the foregoing reasons, we affirm the trial courts dismissal of the Trails complaint in part, reverse the dismissal in part, and remand for further proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded.
MATHIAS, J. and VAIDIK, J. concur

Wieland Designs v. Department of Local Government Finance (7/7/04 IndTaxCt - NOT FOR PUBLICATION) [Real Property Assessment]

"To meet its burden, Wieland was required to explain its causes of obsolescence in order to translate its improvements loss in value (due to those causes) into a quantifiable amount of obsolescence depreciation. Thus, although both parties agreed that causes of obsolescence existed in Wielands improvement, Wieland was still required to demonstrate how those causes resulted in its improvements loss of value in order to convert that actual loss of value into a percentage reduction and apply it against its improvements overall value. Instead, Wieland presented a cursory calculation bearing no relationship to the causes of obsolescence present in its improvement. Similarly, Miller made no attempt to explain how the numbers used in his calculation related to the improvements causes of obsolescence and the associated loss in value. Without more, Wielands evidence failed to demonstrate that it was entitled to additional obsolescence depreciation. Accordingly, the State Board properly rejected Wielands request for additional obsolescence." (citations omitted)

Champlin Realty v. Department of Local Government Finance (7/7/04 IndTaxCt - NOT FOR PUBLICATION) [Real Property Assessment]

"Because Champlin failed to link the factors causing obsolescence with an actual loss in its properties value, it failed to make a prima facie case quantifying the amount of obsolescence to which it was entitled. The Court therefore AFFIRMS the two final determinations of the State Board valuing Champlins properties for the 1995 assessment."

Posted by Marcia Oddi on Thursday, July 08, 2004
Posted to Indiana Decisions

Indiana Law - Two new 7th Circuit opinions today


Complex financial issues, opinion by Judge Easterbrook. A quote: "The FDIC says that the net loss to the insurance fund exceeds $500 million. Superiors equity owners have promised to pay $460 million over time. Believing that the accountants also bear responsibility for the banks failurethat generally accepted accounting principles required the residual interests to be discounted in light of the possibility of prepayments and other events that could intervene before the outside investors had been paid off the FDIC has sued Ernst & Young for hefty compensatory and punitive damages. Illinois law, which the FDIC agrees controls, permits third parties such as investors to sue accountants for fraud (which the FDIC alleges). 225 ILCS 450/30.1(1). It allows third parties to recover for ordinary negligence (which the FDIC also alleges) if the accountant knew that a primary intent of the client was for the professional services to benefit . . . the particular person bringing the action. 225 ILCS 450/30.1(2). If the FDIC prevails, 25% will go to the equity investors (effectively reducing the net proceeds of that settlement) and the rest will be applied to the benefit of Superiors other creditors, principally the insurance fund."


Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
BAUER, Circuit Judge. * * * There are numerous conceivable reasons for retaining a residency requirement for government employees. One, discussed by Wood Rivers mayor, is that resident employees are available for work emergencies on short notice. Granted, there are probably not too many middle-of-the-night emergencies where a golf course mechanic would be needed, but it is not outside the realm of possibility. Furthermore, this court and others have repeatedly found that residency requirements are rationally related to a legitimate governmental interest. [cites omitted]

III. Conclusion. While we sympathize with Mr. Gusewelles loss of his job, we do not find that his termination or the residency requirement that caused his termination create any legally cognizable claim for relief. AFFIRMED

Posted by Marcia Oddi on Thursday, July 08, 2004
Posted to Indiana Law

Law - Will Blakely impact Martha Stewart sentencing?

The AP and other sources are reporting that U.S. District Judge Miriam Goldman Cedarbaum has denied Martha Stewart's latest request for a new trial.

Will Blakely v. Washington have an impact on the sentencing? I sure don't know, but will keep an eye out for reports on this.

[Update 7/9/04] Here is a link to Judge Cedarbaum's 43-page ruling denying a new trial.

Posted by Marcia Oddi on Thursday, July 08, 2004
Posted to General Law Related

Law - Bill drafting error leads to special session

We reported yesterday on a bill drafting mistake in Virginia (scroll down or click here) that "resurrected a Virginia law granting workers Sundays off." Today the Post reports:

RICHMOND, July 7 -- Virginia Gov. Mark R. Warner (D) said Wednesday that he is likely to call lawmakers back for a special session, perhaps as early as Tuesday, to undo legislation that mistakenly granted employees the right to demand time off on the weekend. * * *

Warner, who had resisted the idea of a special session since the discovery of the mistake last week, relented under continuing pressure from lawmakers and business leaders, who said the state's modern economy could suffer if large numbers of employees began demanding weekends off. * * *

Legislative lawyers, Warner administration officials and lawyers for the attorney general all missed the mistake after the bill passed the legislature. Warner then signed it. It was caught by a young lawyer for a private firm late last month after business leaders asked him to look into the issue.

Posted by Marcia Oddi on Thursday, July 08, 2004
Posted to General Law Related

Law - Solicitor General Olson will return to former firm

The Washington Post is reporting here today that:

Solicitor General Theodore B. Olson, a prominent conservative and the Bush administration's top attorney for three years, is returning next week to his former law firm, Gibson, Dunn & Crutcher.

Olson, 63, will lead the firm's client crisis management team and serve as co-chair of the appellate and constitutional law practice group, along with Miguel Estrada in Washington and Theodore J. Boutrous Jr. in Los Angeles.

Boutrous said in an interview that Olson's practice had always had a public policy component and that it would do so again, coming up with solutions for complex legal issues that might involve legislative and regulatory considerations before litigation becomes necessary.

"He is uniquely qualified to work with clients to develop strategies to address their legal problems in a framework that addresses relevant social and policy concerns, while being sensitive to the media and other relevant constituencies," managing partner Ken Doran said in a statement.

Here is a copy of the firm's press release.

Posted by Marcia Oddi on Thursday, July 08, 2004
Posted to General Law Related

Indiana Decisions - Appeals court says judge improperly used man's race as factor in extending prison term

"Court rejects prison sentence: Appeals court says judge improperly used man's race as factor in extending prison term" is the headline to this story today in the Indianapolis Star, reporting on the Court of Appeals' decision yesterday in the case of Jerome L. Williams v. State of Indiana (7/7/04 IndCtApp). The opinion itself is summarized in the second item in the entry immediately below, posted yesterday. Some quotes from the Star story:

A black man convicted in the strangling death of a white woman will get a new prison sentence after the Court of Appeals ruled Wednesday that a judge improperly used his race as a factor in increasing his prison time. * * *

The judge, in his remarks and in the sentencing order, cited Williams' race -- and the negative effect the murder had on race relations in the community. "I think in light of these facts of this case, it's going to make people more concerned about people of color being in their neighborhoods," Bartholomew Superior Court Judge Chris D. Monroe said, according to a transcript in the Court of Appeals decision.

And in his sentencing order, Monroe wrote: "The crime impacted the community, especially elderly people, and increased their fear of African-Americans." The standard sentence for murder is 55 years. Citing race relations and other aggravating factors, Monroe increased the sentence to 60 years.

"The guy got a greater sentence because he was black. That shouldn't be," said Williams' Indianapolis attorney, Jack Crawford. "This is an important decision, because the court is telling trial judges they have to be very sensitive to the issue of race."

[Update] The AP also has a story on this decision, headlined in the Louisville Courier-Journal: "Indiana judge's sentence rejected for remark on race: Court orders term for murder re-examined."

Posted by Marcia Oddi on Thursday, July 08, 2004
Posted to Indiana Decisions

Wednesday, July 07, 2004

Indiana Decisions - Four Court of Appeals Opinions Today

Larriante Sumbry v. Miscellaneous Dockets for the Year 2003 (7/7/04 IndCtApp) [Criminal Law & Procedure]

Here the Court affirms the trial court's rejection of Sumbry's attempt to file a Petition for Writ of Habeas Corpus. "Sumbry argues all manner of due process violations based on the trial courts refusal to conduct a hearing on his petition. However, the fact of the matter is that, as the trial court notes in its Order, Sumbry simply fails to state a claim upon which relief can be granted. * * * Based on the foregoing, we conclude that the trial court did not abuse its discretion in rejecting Sumbrys attempt to file a Petition for Writ of Habeas Corpus." In a footnote, the Court points to the fact that "The Indiana Legislature has recently passed a bill that provides for the screening of inmate lawsuits. HB 1153, which will be codified at Indiana Code chapter 34-58-1 and will become effective July 1, 2004" and then quotes it in full. Chapter 2 of the new law deals with "abusive litigation."

Jerome L. Williams v. State of Indiana (7/7/04 IndCtApp) [Criminal Law & Procedure]

Jerome Williams (Williams) pled guilty to felony murder in Bartholomew Superior Court and was sentenced to serve sixty years in the Indiana Department of Correction. Williams appeals his sentence and argues that the trial court abused its discretion when it found his race to be an aggravating circumstance. Concluding that the trial court abused its discretion when it found Williams race to be an aggravating circumstance, we reverse and remand for resentencing. * * *

[W]e are very uncomfortable with the trial judges reference to the fact that Williams is African-American and the victim is white as an aggravating circumstance. While the trial judges concern over race relations in the community is laudable, his use of Williams race to address that concern during the sentencing proceedings was impermissible. * * *

These statements indicate that the trial court relied heavily on the victims age and her selection as Williams victim because of her age when it enhanced Williams sentence by five years. However, given the lengthy discussion of Williams race during the sentencing proceedings, we cannot conclude that the invalid aggravating circumstance played an unimportant role in the trial courts decision to aggravate Williams sentence. Because we are unable to say with confidence that the trial courts consideration of the permissible aggravating circumstances would have led to the same result, we reverse and remand this case for resentencing
Reversed and remanded for resentencing.
BARNES, J., and CRONE, J., concur.

Donna J. MacLafferty v. William P. MacLafferty (7/7/04 IndCtApp) [Family Law]

"The trial court did not err when it reduced Fathers child support obligation because Mothers increase in income constitutes a changed circumstance so substantial and continuing as to make the terms of the April 17, 2002 child support order unreasonable. Also, the trial court did not abuse its discretion when it determined that the childrens summer day camp was no longer a necessary child care expense. Finally, the trial courts modification of Fathers midweek parenting time was in the childrens best interests. Affirmed."

William Lee Roberts Jr. v. A.P. Green Industries, et al. (7/7/04 IndCtApp) [Procedure; Costs]
Riley, Judge

In August of 2001, the Roberts filed the instant asbestos-related cause of action against approximately thirty-four defendants, * * * Subsequently, the Roberts filed their Motion for Expedited Jury Trial Date and Pre-Trial Conference, in which they alleged that William Lee Roberts, Jr., suffered from an incurable and fast-acting cancer, and requested an expedited trial date so that the matter could be tried before his death. On August 13, 2001, the trial court granted the Roberts motion, and set their jury trial for March 19, 2002.

On Thursday, March 14, 2002, during the first day of the final pre-trial conference, the defendants learned of the Roberts contingency plan to relocate the jury trial from the Marion County Superior Court 2 to a ballroom in the Indianapolis Athletic Club (IAC). The Roberts explained they developed their plan in anticipation of the impending jury trial that involved more parties [than] the present courtroom can reasonably accommodate. * * *

On March 19, 2002, the jury trial in this matter commenced at the IAC. On April 30, 2002, the Roberts filed their Motion to Allocate Courtroom Trial Expenses with the trial court. The trial court did not rule on the Roberts motion before the end of the trial on May 24, 2002. As of that date, thirty of the thirty-four defendants had either been dismissed from the trial or had settled with the Roberts. With regard to three of the four remaining defendants, the jury entered its verdict in favor of Defendants Central Soya Inc., Eli Lilly and Company, and the Kroger Company and against the Roberts. With regard to PSI Energy Inc. (PSI), the jury entered its verdict in favor of the Roberts and against PSI. The jury assessed 13% fault against PSI; therefore, of the combined award of $3,800,000 to the Roberts, PSIs 13% portion was $494,000 with no punitive damages.

Thereafter, on June 12, 2002, the Roberts filed their Supplement to the Motion to Allocate Costs, in response to which the majority of defendants filed objections. As a result, the trial court conducted a hearing on the Roberts motion on July 18, 2002. On November 22, 2002, the trial court entered an order denying the Roberts motion, with the exception of its directive to defendants PSI, National Starch & Chemical Co., and Central Soya, Inc., to reimburse the Roberts the sum of $8,227.50 for their share of the document display system rental. On December 23, 2002, the Roberts filed their Motion to Correct Error, which was deemed denied on February 6, 2003. The Roberts now appeal. * * *

Therefore, we find ample evidence to show that the Roberts offered to shoulder the expense for moving the jury trial to the IAC in the interest of moving forward on the scheduled date of trial.

We have previously held that, although the expense of litigation confronts all litigants, unless otherwise provided by statute, rule, or agreement, each party bears his own expense. AgMax, Inc. v. Countrymark Co-op., Inc., 661 N.E.2d 1259, 1261 (Ind. Ct. App. 1996). Given the circumstances in the case at bar, we are able to expand this well-settled notion to hold that, here, there was an agreement that the Roberts would pay for the jury trial expenses at the IAC, and that the trial court relied on that agreement in denying the defendants strenuous objections to proceeding with the jury trial at the IAC. Accordingly, we find that the mandate of I.C. 33-5.1-2-12 was bypassed by the agreement, thereby relieving the city-county council of its obligation to provide and maintain a courtroom for the trial of this cause. As a result, the trial court did not abuse its discretion in denying the Roberts Motion to Allocate Courtroom Trial Expenses. * * * Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Wednesday, July 07, 2004
Posted to Indiana Decisions

Indiana Decisions - Two 7th Circuit Decisions Today


Before BAUER, COFFEY, and KANNE, Circuit Judges.
KANNE, Circuit Judge.
* * * The district court, ruling on a Federal Rule of Civil Procedure 12(b)(6) motion, dismissed the complaint without prejudice because Eron failed to exhaust the administrative remedies available under IDEA, 20 U.S.C. 1415. For the reasons stated herein, we reverse. * * *

Eron only seeks to recover for the arguably outrageous actions of Neterer, the physical education instructor. He does not allege any ongoing emotional difficulties that might be addressed through IDEA [Individuals with Disabilities Education Act, 20 U.S.C. 1400, et seq.]. After closely examining the theory behind the grievance in Erons complaint, we are convinced that it would be futile for Eron to exhaust the administrative process under the circumstances of this case because IDEA does not provide a remedy for his alleged injuries, which are non-educational in nature.

Before COFFEY, RIPPLE and KANNE, Circuit Judges.
KANNE, Circuit Judge. This case raises a question about an award of attorneys fees to a prevailing party under the Civil Rights Attorneys Fees Awards Act of 1976, 42 U.S.C. 1988 (2000). After the underlying claims, which challenged the constitutionality of both state and local adult entertainment zoning regulations, were disposed of through dismissals, partial summary judgments, a repeal of the relevant portion of the local statute, and a final dismissal for mootness, the district court granted the plaintiffs motion for attorneys fees. For the following reasons, we affirm.

I. Background. The issue on appeal can be succinctly stated: did the district court correctly award attorneys fees to Palmetto as a prevailing party under 42 U.S.C. 1988? However, prevailing party is a legal term of art, generally meaning a party in whose favor a judgment is rendered . . . . Buckhannon Bd. & Care Home, Inc. v. W. Vir. Dept. of Health and Human Res., 532 U.S. 598, 603 (2001) (quotation omitted). In Buckhannon, the Supreme Court demonstrated that, although the issue and definition can be pithily put, in order to determine whether an award of attorneys fees would be appropriate, a meticulous analysis of the particular judgments and orders entered in a case is necessary. * * *

III. Conclusion. In sum, the district courts $49,175.00 award of attorneys fees to Palmetto was equitable, efficiency-promoting, a logical development in Buckhannon jurisprudence, and applied a common-sense understanding of a judgment on the merits. For the foregoing reasons, we AFFIRM the award of attorneys fees under 42 U.S.C. 1988.

Posted by Marcia Oddi on Wednesday, July 07, 2004
Posted to Indiana Decisions

Law - Real estate stories today

Green space. The Munster Times reports today that the Porter County Commissioners' plan (reported in earlier ILB entries) to require builders to set aside 20% of a residential site for open space has been delayed:

The task of hashing out the differences in the proposal was left up to Porter County Planner Bob Thompson, who quickly began assembling a volunteer advisory committee.

Also lending a hand will be Bradley Johnson of Ground Rules, a consulting firm hired by the commissioners Tuesday to bring county ordinances up to date and in line with the county's new land use plan.

Tuesday's public hearing echoed many of the same comments heard by the plan commission, which approved the open space changes last month. Developers opposed the proposal in its current form, while some county residents and environmentalists called for its immediate adoption.

Developer Bob Coolman said the blanket requirement of setting aside 20 percent of a residential site for open space could end up defeating its aim by requiring the development of more open space in order to build the homes needed. "Does it constitute good planning?" he asked.

Chesterton resident and long-time environmentalist Herb Read gave several examples of developments near and far that have set aside more than 20 percent for open space. Read, who's an architect, offered to lend a hand to any local developer unable to make this requirement work. "I think all developers owe something to their community," he said.

RLUIPA. The federal Religious Land Use and Institutionalized Persons Act is in the news in Louisville, according to this Courier-Journal story. Some quotes:
The Roman Catholic Archdiocese of Louisville says in a federal lawsuit that metro government is interfering with religious freedom by refusing to allow buildings to be torn down to make way for church parking.

Louisville blocked plans to provide space for parking across Shelby Street from St. Martin of Tours by granting landmark status to the buildings, once home to Tonini Church Supply Co.

The lawsuit, filed last month in U.S. District Court, places the archdiocese in the middle of a national debate over whether governments can restrict how religious institutions use their property. * * *

If the lawsuit goes to trial, it "will be a good test" of a 2000 federal law that requires governments to show a compelling reason why a church's rights should be limited, Haynes said.

The Religious Land Use and Institutionalized Persons Act is the latest effort by Congress to protect religious freedom against excessive land use restrictions, he said.

Although many cases involved in the law are winding through the courts, Haynes said Louisville's is unusual because buildings that the government is trying to protect aren't a physical part of the church. A more typical case would involve a church fighting a historic status designation that affects the main church building, such as precluding an old altar from being moved, Haynes said.

Historic preservation. Another Courier-Journal story today concerns an effort by the city to get developers to preserve historic facades and incorporate them into a new development. (Indianapolis residents will recall that facade preservation was accomplished successfully here, incorporated into the construction of the downtown mall.) Some quotes:
The developers' studies conclude that the buildings can't be preserved, while the government's studies contend that one or more of the buildings' facades can be saved and incorporated into the new construction.

Jim Segrest, a Butchertown activist and president of Neighborhood Planning and Preservation Inc., which is leading the fight to save the old Brinly-Hardy complex, referred to the engineering studies hired by the developers as "bunk. ... You can get anybody to say anything, if you pay them."

Henry Potter, one of the developers in Fleur-de-lis LLC, said, however, that the buildings are falling apart and are unsafe. Potter, who strongly defended the worth of the studies done by his engineering consultants, said it would cost nearly $1million to incorporate two facades of the old Brinly-Hardy headquarters building on the Preston-Main corner into the new housing. He said the housing project is estimated to cost $16million.

Posted by Marcia Oddi on Wednesday, July 07, 2004
Posted to General Law Related

Law- More on Winnetka fire case

Remember the 7th Circuit opinion last month that began:

This case raises the question: what could be worse than having most of your home burn down in a fire? The answer, of course, is having the rest of it burn down a couple of days later in a second fire. What would make the situation dramatically worse, however, is if the fire department determined that the second fire was intentionally set (possibly by you) and called in federal authorities to investigate, thus requiring you to invest substantial energy, time and money defending against such allegations. Such a scenario would be particularly outrageous if the fire department did not actually believe that the second fire was intentionally set but was merely trying to draw attention away from the possibility that it had been negligent in putting out the first fire. According to Charles M. McDonald of Winnetka, Illinois, this is exactly what happened to him.
The case was McDonald v. Village of Winnetka (ILB entry here). As the Chicago Tribune reports today:
[McDonald] accused the village of violating his constitutional rights after investigators began to suspect arson, [blaming] the Winnetka Fire Department for the loss of his home, saying he believed that a fire on May 10, 1999, smoldered and "rekindled" two days later.

But when officials turned the tables and called in federal authorities to investigate their suspicion that someone had set the second fire, McDonald sued the village in U.S. District Court in Chicago. He accused officials of treating him differently from other Winnetka fire victims by failing to consider rekindling, under a law more commonly used in discrimination cases based on gender, race, sexual orientation or religion.

Now the village is considering trying to recoup more than $1.25 million it spent defending itself against the lawsuit, in which a judge scolded McDonald for "playing fast and loose with the facts of this case," according to the June 17 appeals court decision.

Judge John Darrah ordered McDonald to pay $18,333 in reimbursement costs for copied records, which the village is still waiting for, officials said. "The village has never had a doubt that everything that was done to investigate this was correct and proper," said Katherine Janega, Winnetka's village attorney.
* * *

After filing the lawsuit in May 2000, McDonald appealed his case after Darrah granted the village's motion for a summary judgment, dismissing the suit. McDonald had been seeking up to $5.3 million for his legal and consulting fees, as well as an unspecified amount for "emotional distress," Janega said. * * *

On June 17, a three-member panel of judges with the 7th Circuit Court of Appeals ruled that McDonald had failed to prove his argument under the 14th Amendment's "class of one" equal protection clause.

"It's very strange to transform an individual grievance against the Fire Department into a sort of class-based agreement when there is nobody else who is a member of your class," said Robert Bennett, a law professor at Northwestern University, who said such cases are rare.

"My hunch is this guy's lawyers started thinking they weren't going to get anywhere with [the argument that] he was treated shabbily, and so they tried to go with the equal protection clause," Bennett said.

Neither McDonald nor three of his attorneys at Chicago-based Sidley, Austin, Brown & Wood returned calls. * * *

During the court battle, the village was forced to provide fire reports dating to 1980, said Janega. To comply with the requests for open records, the village copied 23,730 documents that filled 46 boxes, providing information that included compact discs, personnel files, training manuals and e-mail messages, she said.

"We produced at their request a mountain of information," Janega said. "They could not find anything to substantiate their claim because there was nothing to substantiate their claim."

Posted by Marcia Oddi on Wednesday, July 07, 2004
Posted to General Law Related

Environment - More on Hog Farns

Following on our July 5th entry, which included stories about hog farms in Iowa and Nebraska, is this story today in the NY Times about "Dr. [C.M.] Williams, the director of the [North Carolina State University's] animal and poultry waste management center, [who] is to present the first overall results of a four-year comprehensive study of 16 options for phasing out North Carolina's system for treating the tons of waste produced by its swine." More:

The hope, soon to be tested, is that this report will provide a tool kit for farmers to reduce or eliminate the pollution caused by one of rural America's most noxious industrial archipelagos - the farms in eastern North Carolina where hogs live, eat, defecate and are prepared for a honey-baked future in closely confined quarters. The hogs belong mostly to out-of-state companies; their waste belongs to the farmers who contracted to raise them. They go; the waste stays, to be digested gradually by bacteria in open-air lagoons. The system has repeatedly failed, occasionally fouling the water and infuriating people downwind.

Now North Carolina has become the laboratory for what is technically, economically and politically possible in regulating such farms. More and more, states are taking the lead in seeking solutions to environmental problems - hogs in North Carolina, heat-trapping gases in New Jersey - while the Environmental Protection Agency or other federal regulators debate the problems' scope. * * *

In North Carolina, Mr. Rudek said, an agreement between pork producers and the state attorney general in 2000 mandated that the Williams report set the tone. "It said: We've done talking about what the problems are. Now we are going to talk about solutions,'' he said. The report, he said, could be a building block for state or federal regulation. As the person assigned to assemble a tool kit, or proto-regulation, to help end what has been one of the most politically divisive debates in recent state history, Dr. Williams has been lobbied, flattered, criticized and deluged with information. He believes that his report will be a road map for an industry conversion ("cleanup'' is a loaded term here), but he cannot be sure it will be used. "Simply put," Dr. Williams said, "within this state, and I think this will apply to other states and provinces, there will be a decision that all people will have to make: Do we continue with the past system or proceed with a new system?" Knowing that innovation can be expensive and that North Carolina would suffer if hogs, like tobacco and textiles, left town, he added, "If we do proceed with a new system, there have to be reasonable incentives." * * *

The early technical front-runner involves culling solids from the water flushed out of the barn with advanced chemical techniques and bacterially treating the remaining effluent, removing the majority of pollutants. The technique, which eliminates the lagoons, costs four to five times as much as the lagoon-and-spray practice and twice as much as its nearest competitor, Dr. Williams said. At that price, he said, mandating a technology as promising as the early leader "would run the industry out of the state." A lower-cost version is now being tried.

Smithfield executives are not ready to give up lagoons and spray fields. Dennis Treacy, vice president for environmental, community and government affairs there, said in an e-mail response to questions: "It is a common misunderstanding that new technologies will eliminate the use of lagoons and spray fields. In fact, the majority of the alternative technologies under consideration will continue to use lagoons and/or spray fields as a component of the overall treatment technology."

And the E.P.A? Dr. Viney P. Aneja, a professor of air quality at North Carolina State and an expert on air pollution from factory farms, says it "has stayed on the sideline." Sally Shaver, an air quality official for E.P.A. based in Raleigh, sees nothing wrong with the division of labor. Ms. Shaver defended the agency's gradual approach: last year, it put out a rule on water pollution at the farms and is completing a consent decree with the industry that would require monitoring air quality at concentrated swine, poultry and dairy operations. Given the concentration of hog farms, North Carolina's lead role makes sense, she said.

Posted by Marcia Oddi on Wednesday, July 07, 2004
Posted to Environmental Issues

Law - Interesting look at bill drafting mistake in Virginia

A story today in the Washington Post reports:

RICHMOND, July 6 -- The legislation that mistakenly resurrected a Virginia law granting workers Sundays off was reviewed by the legislature's legal department, two Cabinet secretaries, three lawyers in the attorney general's office and several of Gov. Mark R. Warner's top advisers, according to documents provided by Warner's office. None of them caught the mistake.

Instead, it was a young labor lawyer at a private firm who months later noticed that millions of Virginia employees had suddenly been granted new rights to demand time off on weekends. The law requires employers to grant non-managerial workers a weekend day off or pay fines and triple the worker's pay rate. The General Assembly resurrected the law from decades of obscurity during the 2004 session by accidentally removing exemptions for most of the state's businesses while trying to eliminate four out-of-date provisions of the blue laws, which forbid businesses to be open on Sundays. * * *

The trouble started when the Division of Legislative Services, which acts as the legislature's legal office, drafted Senate Bill 659 for Sen. Frederick M. Quayle (R-Chesapeake). It read simply: "Be it enacted by the General Assembly of Virginia: That 18.2-341, 18.2-342, 18.2-343, and 40.1-28.5 of the Code of Virginia are repealed."

According to the governor's tracking folder, the legislative services lawyers indicated no concerns about the bill on March 3, 2004, after it had passed both chambers -- 40 to 0 in the Senate and 88 to 9 in the House.

The bill was sent to the Department of Planning and Budget, which indicated that it would have no impact on the state budget. That memo was signed by Secretary of Finance John M. Bennett on April 1.

The next day, it was forwarded to the attorney general's office, along with a form titled "Recommendations to the Governor." There, lawyers checked three boxes indicating "No conflict with existing law," "No Virginia constitutional conflict" and "No federal constitutional conflict." They made no suggested amendments or comments. It was signed by Carla Collins, an assistant attorney general; Frank S. Ferguson, a special counsel in the attorney general's office; and Christopher R. Nolan, chief counsel to Kilgore.

Attorney Steve Minor's SW Virginia law blog has been following this story since it surfaced the end of June.
This entry contains links to the laws involved and a link to this Roanoke Times story. A quote from the story:
[Sen. Fred Quayle, R-Chesapeake] said Tuesday that all he'd intended to do was clean up Virginia statutes by removing now unconstitutional provisions of Sunday "blue laws." Quayle said no one, including staff at Legislative Services who helped draft the bill, alerted him or seemed to notice that his bill also would remove day-of-rest exemptions for most private businesses - including manufacturers, medical services, restaurants, movie theaters, publishing operations like The Roanoke Times, and a host of other enterprises.

Those exemptions will go up in smoke come Thursday [July 1] and Quayle and others are beginning to feel the heat. The senator was asked whether he'd fielded calls from businesspeople. "Oh, yeah," he said. "I will do absolutely anything I can to correct it when the Legislature reconvenes in January."

See also this entry on an injunction issued to suspend the blue law operation.

Posted by Marcia Oddi on Wednesday, July 07, 2004
Posted to General Law Related

Tuesday, July 06, 2004

Environment - More stories today

Lead Paint. Real Estate News reports here today that "Federal Government Settles Cases Against Minnesota Landlords." Some quotes:

RISMEDIA, July 6-Federal authorities have achieved a victory in removing lead-based paint in apartments in four states.

The Department of Housing and Urban Development (HUD), the U.S. Attorney in Minneapolis and the Environmental Protection Agency (EPA) reached settlements against one of the largest Midwest property management companies and a Minnesota landlord for failing to warn their tenants that their homes may contain lead-based paint hazards.

Combined, the settlements will result in the complete removal of all lead-based paint in nearly 4,500 apartments in four states in the upper Midwest-Minnesota, Wisconsin, South Dakota and Indiana.

U.S. EPA. The Salt Lake Tribune reports today in a fascinating story: "Colleagues say Leavitt energized as EPA head." Some quotes:
WASHINGTON -- Eight months into the job, friends and colleagues say former Utah Gov. Mike Leavitt is "invigorated" working as administrator of the U.S. Environmental Protection Agency despite the challenges of a grueling work schedule, grasping highly technical issues and carrying out national policy in a charged political atmosphere.

If Leavitt had been in a rut after 11 years at the helm of Utah state government, confidants say, he appears energized by the job he began Nov. 6. "New challenges bring new enthusiasm," says Salt Lake City Chamber of Commerce President and CEO Lane Beattie, former Utah Senate president and Leavitt's Olympic officer. Beattie and a group of chamber members met with Leavitt during a trip to Washington last month.
* * *

The handful of former Utah state house staff who migrated east with him to work at EPA have watched with some fascination as he has adapted to both the tireless pace of Washington's power elite and the casual but committed work atmosphere inside EPA. For those veterans of Leavitt's Utah regime who are accustomed to addressing him only as "Governor" or "Boss," hearing EPA employees now regularly call him "Mike" in meetings has been a mild culture shock.

Former EPA employees say one of the factors that isolated agency staff from Leavitt's predecessor, Christine Todd Whitman, was the unspoken rule that she be referred to as "Governor," an honorific title retained from her previous position as New Jersey's top elected official.

"That caused many people at EPA to bristle," says Washington communications consultant Russ Dawson, press secretary to former EPA Administrator Lee Thomas. "It's a tough place to run, but if the staff thinks you embrace what the agency is about and care about what they do, they are more likely to work with you."

Illegal Dumping. This report, from the July 2 Greencastle Banner-Graphic, is headed "Illegal dumping source of hazmat spill." Some quotes:
CLOVERDALE - An investigation into two separate chemical spills at the Cloverdale Waste-water Treatment Plant this week has led workers at the plant to seek help from the Cloverdale Police Department.

On Monday, a citizen reported seeing a green substance floatingin Rabbit Run Creek downstream from the plant. The creek runs south from the plant and eventually connects with Doe Creek.

Then on Thursday morning, workers arrived at the sewage plant to discover that sewage had backed up in the drains inside the plant itself. Both incidents are being blamed on illegal dumping. * * *

[S]omeone is believed to be coming to the plant under the cover of darkness and illegally pumping sewage and related chemicals into one of three manholes near the plant.

Stremmings and a group of investigators from the Indiana Department of Envoironmental Management (IDEM) spent Wednesday examining the Monday spill and were able to track it back to the plant.

It is speculated that someone came to the plant late Sunday night or early Monday, removed a manhole cover near the plant and then pumped in a green liquid which Stremmings believes is used to treat waste in portable restrooms.

From the manhole, the "emerald green" liquid then made its way into the nearby creek through a drain pipe that is normally used to handle excess rainfall that comes into the plant. During those times, Stremmings explained, IDEM permits him to keep the solid waste inside the plant for proper treatment but allow some of the liquid waste, which is diluted with the excess rainfall, to run out of the plant and through the drainage pipe.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to Environmental Issues

Indiana Courts - Why no Indiana Justices on How Appealing?

Howard Bashman of How Appealing writes today:

Seeking an August 2004 interviewee to participate in "20 questions for the appellate judge": At midnight this morning, I posted online the July 2004 installment of "20 questions for the appellate judge," which features Tenth Circuit Judge Paul J. Kelly, Jr. as the interviewee. The monthly "20 questions" feature has turned into one of this Web log's most popular offerings. Regrettably, that feature is about to come to an end, unless with your help a state or federal appellate judge volunteers on or before this Friday, July 9, 2004 to be August 2004's interviewee.
Read more here from Howard's post about the illustrious jurists who have participated in the past (including Seventh Circuit Judge Richard A. Posner) and those who have volunteered for future months other than August (including Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin).

It sure would be nice to see a justice of the Supreme Court of Indiana as a participant, either next month or somewhere in the future lineup.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to Indiana Courts

Environment - Stories today

Clean Air Act. The Indianapolis Star reports today that "Pollution probe of asphalt industry widens to Indiana." The lead:

COLUMBUS, OHIO -- A U.S. Environmental Protection Agency pollution investigation of asphalt companies, which mix crude oil and gravel to make road-building materials, has expanded from Ohio to Indiana and other states.

The agency has ordered pollution tests and company records from two asphalt plants in Illinois and one each in Indiana, Michigan, Minnesota and in Fairborn, Ohio, near Dayton, The Columbus Dispatch reported on Monday. Two Columbus asphalt companies got similar orders earlier in the year.

While the agency hasn't discussed the investigation publicly, the EPA said earlier that demands for internal records are the first official steps taken when it suspects Clean Air Act violations. * * *

Alvin Evans, chief operating officer for J.H. Rudolph & Company Inc. in Evansville, Ind., said he was asked to test for things the state doesn't require. He said Indiana requires estimates of volatile organic chemicals, nitrogen oxides and sulfur emissions.

Wetlands. An AP story appearing in the Washington Post today, and headlined "Returning Farmland to Wetlands: Agriculture Dept. Aims to Ease Flooding, Benefit Wildlife," includes these quotes:
UNION, Neb. -- Persistent flooding of their corn and soybean fields led Robert and Verneel Noerrlinger to return 535 acres to wetlands. The U.S. Department of Agriculture is urging other landowners along the Missouri River in Nebraska to consider doing the same.

Last week, the Noerrlingers' property was the site chosen by the USDA to announce a project that makes $26 million available through 2007 to restore 18,200 acres of wetlands along the river from Ponca to Rulo, about 200 miles running the entire length of the state. The Lower Missouri River Wetland Reserve Enhancement Program is the first of its kind approved by the Agriculture Department. * * *

Besides the benefits to wildlife and the reduction of flood waters, the project will lower disaster relief costs because of less farmland in the floodplain as well as improve water quality because wetlands filter runoff from farmland, said Steve Chick, state conservationist for the Natural Resources Conservation Service.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to Environmental Issues

Indiana Decisions - Two from Court of Appeals Today

Mid-States General & Mechanical Contracting v. Town of Goodland (7/6/04 IndCtApp) [Contracts]
Sharpnack, Judge

Mid-States General & Mechanical Contracting Corporation (Mid-States) appeals the trial courts grant of summary judgment to the Town of Goodland (Town). Mid-States raises three issues, which we consolidate and restate as: [1] Whether Mid-States is entitled to rescind its bid and bid bond because of its misinterpretation of the bid documents; and [2]Whether the contract is void because the Town Council failed to meet certain procedural requirements in awarding the contract. We affirm. * * *

I. The first issue is whether Mid-States is entitled to rescind its bid and bid bond because of its misinterpretation of the bid documents. According to Mid-States, the bid documents were ambiguous and there was no meeting to the minds to form a contract between Mid-States and the Town. Alternatively, Mid-States argues that equity should intervene to allow it to rescind its bid and bid bond. * * *

We have determined that the bid documents were unambiguous and required the allowances to be included in the Stipulated-Sum Bid Price. Despite the unambiguous nature of the bid documents, Mid-States failed to give heed to the plain terms requiring the allowances to be included in the Stipulated-Sum Bid Price. Thus, equity may not intervene to rescind Mid-States bid and bid bond. * * *

Our holding is consistent with the treatment of bid mistakes in most other jurisdictions. The general rule is that [b]id errors that result from clear cut clerical or arithmetic errors See footnote or a misreading of the specifications are the kind of excusable mistake that allows relief. Liebherr Crane Corp. v. United States, 810 F.2d 1153, 1157 (Fed. Cir. 1987) (footnote added). Mistakes of judgment, on the other hand, do not qualify for such relief. Id. Generally, the misinterpretation of an unambiguous contract has been held to be a mistake of judgment. See, e.g., C.W. Over & Sons, Inc. v. United States, 54 Fed. Cl. 514, 523-525 (Fed. Cl. 2002) (holding that the contractor was not entitled to reformation of its contract because it made a mistake of judgment in bidding when it misinterpreted an unambiguous sales tax clause); Sanders-Midwest, Inc. v. United States, 15 Cl. Ct. 345 (Cl. Ct. 1988) (holding that the contractor was not entitled to reformation of its contract where the contractor argued that it was misled by the language in the contract and the invitation to bid but the language was unambiguous and, thus, the contractor made a mistake of judgment); State of Missouri v. Hensel Phelps Constr. Co., 634 S.W.2d 168 (Mo. 1982) (holding that a contractor could not rescind its bid where the contract language that it misinterpreted was unambiguous).

In summary, we conclude that Mid-States entered into a contract with the Town and breached its contract by refusing to perform the work in accordance with its bid price. Further, Mid-States is not entitled to rescind its bid or bid bond. St. Pauls liability pursuant to the bid bond is contingent upon Mid-States liability. * * * Because we conclude that the Mid-States breached its contract, we also conclude that St. Paul is liable pursuant to the bid bond. Consequently, the trial court was correct in granting the Towns motion for summary judgment.

II. The next issue is whether the contract is void because the Town Council failed to meet certain procedural requirements in awarding the contract. Mid-States argues that the trial court erred by granting summary judgment because genuine issues of material fact exist regarding whether Butler, the Town Council president, had authority to award the project to Mid-States and whether the Town Council adopted the plans and specifications. According to Mid-States, these requirements were not met and, thus, any contract between Mid-States and the Town is void and unenforceable. * * *

We conclude that the minutes are sufficient to reflect substantial compliance with the provisions of Ind. Code 5-16-1-1.2(a). Consequently, Mid-States may not avoid liability under the contract on this basis. There were no genuine issues of material fact, and the Town was entitled to judgment as a matter of law on this issue. See, e.g., Feigel Constr. Corp. v. City of Evansville, 128 Ind. App. 698, 706, 150 N.E.2d 263, 267 (1958) (holding that [t]here was compliance with the essential purpose of the statute which was to insure competitive bidding and there was sufficient substantial compliance with the provisions of the statute as to notice to bidders to such extent that it would be improper for this court to hold such contracts void). For the foregoing reasons, we affirm the trial courts grant of summary judgment to the Town.
DARDEN, J. and ROBB, J. concur

Tippecanoe Associates II, LLC v. Kimco Lafayette 671, Inc. (7/6/04 IndCtApp) [Real Estate; Restrictive Covenant; Recusal]
May, Judge
[In 1973 Kroger leased one of the stores in the shopping center from SES for 20 years. with option to extend for four successive 5 year terms. The lease contained a restrictive covenant wherein the landloard covenanted not to lease to any other food establishment, either in the shopping center or in other property owned by the the landlord within two miles of the center, during the term of the lease, and provided that the covenant ran with the land. Kroger later assigned its rights to Pay Less, who subleased to H.H. Gregg, the current tenant. (Later Payless assigned its rights to both the lease and sub-lease to Tippecanoe.) After Target moved out, leaving half the center vacant, Kimco, the current owner of the shopping center, made great effort to find new tenants.] The only prospective tenant Kimco located is Schnucks, a Missouri corporation that operates grocery stores. Kimco and Schnucks reached a tentative agreement regarding the essential terms of a lease for the space previously rented by Target.

On December 6, 2001, Kimco filed a complaint asking the trial court to declare unenforceable the restrictive covenant in Tippecanoes lease that prohibits Kimco from renting space in the shopping center to a grocery store. After a hearing, the trial court granted Kimcos request and declared the restrictive covenant unenforcable. Tippecanoe appeals. Additional facts relevant to each issue will be provided below.

1. Recusal. Tippecanoe asserts the trial judge erred when he did not recuse himself. See footnote Tippecanoe claims the judge abused his discretion by denying its motion for recusal based on an historical conflict of interest and by failing to recuse himself sua sponte because his campaign manager is affiliated with the law firm representing Kimco. * * * A judge is presumed by law to be unbiased and unprejudiced. To overcome this presumption, the party seeking to disqualify a judge must establish actual personal bias. A mere allegation of bias, without a specific factual showing in support, is insufficient to require disqualification. Adverse rulings are insufficient to show bias per se. Upon review of a judges failure to recuse, we will assume that the judge would have complied with the obligation to withdraw had there been any reasonable question concerning impartiality, unless we discern circumstances which support a contrary conclusion. Hite v. Haase, 729 N.E.2d 170, 176 (Ind. Ct. App. 2000) (internal citations and quotes omitted). Tippecanoes allegations of bias are not supported by sufficient evidence to overcome our presumptions that Judge Busch was unbiased and that he would have recused himself if his impartiality was questionable.

2. Restrictive Covenant. Tippecanoe claims the trial court erred by concluding the restrictive covenant was unenforceable and Kimco could place a grocery store in the shopping center. * * *

In this case, the trial court found the covenant unenforceable because [t]he use of the property and the surrounding area have changed so radically, however, that the original purpose of the covenant can no longer be achieved. (Appellants App. at 570.) The facts cited by the trial court to support the radical change of circumstances are: (1) Tippecanoe no longer uses the Kroger space for a grocery store; (2) Tippecanoes lessee is an appliance store who will not be impacted by a grocery store; and (3) Target, the major anchor of the Shopping Center, has departed. (Id.) Accordingly, we must determine whether the three circumstances found by the trial court constitute changed circumstances so radical and fundamental they defeat the purpose of the restrictive covenant. * * *

We have found only one Indiana decision in which an appellate court held a restrictive covenant unenforceable based on a change in circumstances. See Am. Cannel Coal Co. v. Ind. Cotton Mills, 78 Ind. App. 15, 134 N.E. 891 (Ind. Ct. App. 1922). * * * The facts here are distinguishable from the facts in American Cannel Coal in one very important respect: Tippecanoe will suffer injury if Kimco is permitted to violate the restrictive covenant. As the trial court noted, Tippecanoes lessee at the shopping center, H.H. Gregg, would not be injured because the appliance store would not compete with Schnucks grocery store. Nevertheless, the owners of Tippecanoe own other companies that own grocery stores in close proximity to the shopping center, and based on the evidence submitted by Tippecanoe, Schnucks would compete with those other stores.

One of the main purposes of restrictive covenants is to maintain or enhance the value of land by controlling the nature and use of lands subject to a covenants provisions. Grandview Lot Owners Assn, Inc. v. Harmon, 754 N.E.2d 554, 557 (Ind. Ct. App. 2001) (quoting Campbell v. Spade, 617 N.E.2d 580, 583 (Ind. Ct. App. 1993)). It seems apparent to us that the value to Tippecanoe of the lease for the Kroger space at the shopping center was based not only on the fact that Tippecanoe could sublease that space to another company, but also on the fact that, by enforcing the restrictive covenant, Tippecanoe could avoid grocery store competition in that neighborhood. Thereby, the restrictive covenant enhanced the value of the land for Tippecanoe. * * *

Based on our review of Indiana caselaw, we do not believe the three changes cited by the trial court are sufficient to support invalidating the restrictive covenant in the lease between Kimco and Tippecanoe. * * * Accordingly, we reverse the trial courts declaratory judgment in favor of Kimco. Affirmed in part and reversed in part.
DARDEN, J., and BARNES, J., concur.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to Indiana Decisions

Indiana Decisions - Four from 7th Circuit Today


Before RIPPLE, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. As his name implies, Roger Fix had the reputation of a man who could fix things. In this case, Outboard Marine Corporation (OMC) (of which the defendant Quantum was controlling investor) hired Fix in an effort to save its fledgling business. Fix could not, however, turn the company around. Shortly after Fix began, Quantum discontinued its investment, and OMC declared bankruptcy. After its assets were sold, OMC fired Fix. In response, Fix filed suit in the Northern District of Illinois seeking payment under a clause in his employment agreement which requires Quantum to pay him $5 million in the event of a Change in Control of the Company. Quantum refused, contending that the sale in connection with a bankruptcy does not trigger the clause. The district court granted Fix summary judgment, 2003 WL 21439982 (N.D. Ill. June 18, 2003), and Quantum appeals. * * *

This case turns on the interpretation of the Change in Control definitions in the employment agreement. * * *

Because the language of the employment agreement is clear and unambiguous, there is no need for us to examine any extrinsic evidence. Finally, we have considered Quantums remaining arguments and deem them without merit. The judgment of the district court is AFFIRMED.

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Plaintiffs William Hudson and Bishop Pamon, former police officers with the Chicago Police Department, brought suit under 42 U.S.C. 1983 against the City of Chicago. Hudson and Pamon claim that when the Department terminated their employment pursuant to an absent without permission (AWOP) policy, the City (through the Department) failed to provide them with due process of law. The district court granted summary judgment to the City, and we affirm.
HUYNH, KIM v. BOWEN, EDWIN R. (ND Ill.) "Huynh then filed a petition for a writ of habeas corpus in federal court raising one issue: that attorney Johnson had a conflict of interest which deprived Huynh of the effective assistance of counsel. The district court granted the writ and the State of Illinois appeals. * * * The Illinois Appellate Court decision that Huynh cannot show that Johnson had an actual conflict of interest which adversely affected his performance was not contrary to Cuyler. The judgment of the district court is REVERSED."

SIERRA CLUB v. EPA (Petition for review of EPA order)

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * [The Sierra Club] insists that St. Louis lacks a proper applicable implementation plan for the area under section
7410(k) (requirement (ii)) and that the areas maintenance plan (requirement (iv)) does not meet all requirements of 7505a. * * *

Much of the Sierra Clubs argument assumes that reclassification of St. Louis to serious nonattainment was some sort of punishment that its residents should not be allowed to escape. Not at all. The St. Louis region is an abstraction, a convenient collective phrase for millions of people whose own lives and fortunes are at issue. Reclassification was a combination of (a) goad (clean up or suffer expensive measures), and (b) palliative (sterner measures expedite compliance). Once an area has meet the national air quality standard, neither rationale calls for extra stringency; indeed, the statutory system would not be much of a goad if the tighter controls must continue even after attainment. It is not as if neighborhood bakeries and other smallish point sources were themselves blameworthy and in need of 20 lashes for transgressions. * * *

The petitions for review are denied.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to Indiana Decisions

Indiana Courts - Commission to consider St. Joseph Judicial Vacancy

A release from the Office of the Chief Justice of Indiana this morning reports:

Indiana Supreme Court Justice Frank Sullivan, Jr., who chairs the St. Joseph Superior Court Judicial Nominating Commission, announced today that the Commission will meet next week to begin the process of selecting a new superior court judge. On January 3, 2005, Judge William C. Whitman will retire, leaving a vacancy on the St. Joseph Superior Court.

State law requires the Judicial Nominating Commission to nominate five candidates for appointment to the St. Joseph Superior Court when a vacancy arises, Justice Sullivan said. The final appointment will be made by the Governor. Under the statute, only attorneys who live in St. Joseph County are eligible to be considered by the Commission for nomination.

Justice Sullivan said that the Nominating Commission will meet on Monday, July 12, at 8:30 a.m. in the St. Joseph County Courthouse, to establish a schedule and procedure for taking applications from attorneys interested in being considered for nomination. No further informa-tion on application deadlines or procedures will be available until that time.

The Indiana General Assembly established the seven-member Nominating Commission in 1973. Three of the members must be lawyers elected by St. Joseph County lawyers. Three must be non-lawyers appointed by a committee that includes the St. Joseph Circuit Judge, the mayors of South Bend and Mishawaka, and the president of the board of the St. Joseph County commissioners. The seventh member, who serves as the chair, must be a justice of the Indiana Supreme Court or a Court of Appeals judge appointed by the Chief Justice of the Indiana Su-preme Court.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to Indiana Courts

Indiana Law - More on use of DNA to nab tree poacher

Today's Indianapolis Star has a story titled "Genetic tests on tree pinpoint thief: Scientist helps state solve case by using DNA from stolen black walnut." It follows up on the AP story reported on Sunday in this Indiana Law Blog entry -- an entry which also includes links to the Indiana statute involved.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to Indiana Law

Law - Contentious dispute between two ethics lawyers

"Web ad for lawyer linked to competitor spurs dispute" is the headline to this story today in the Louisville Courier-Journal. Some quotes:

Should a lawyer be allowed to drum up business by exploiting searches for his competitor on the Internet?

The Kentucky Bar Association is scheduled this month to consider the ethics of such search-engine advertising, which has arisen in a contentious dispute between two Kentucky attorneys who themselves specialize in lawyer ethics.

Ben Cowgill, a Lexington lawyer who launched a practice representing other lawyers after resigning as the KBA's chief disciplinary counsel last summer, had targeted his chief competitor Louisville lawyer Peter Ostermiller by arranging to have his name and Web site link appear when potential clients searched for Ostermiller's name on Google, the world's largest Internet search engine.

Cowgill, like other advertisers, agreed to pay Google each time a searcher clicked on the link to his site.

Ostermiller demanded last month that Cowgill end the practice, alleging that it was misleading and deceptive. "In general, I could care less about (your) various advertisements," Ostermiller said in a June 7 letter to Cowgill that he also sent to the KBA. "However, when the advertising is using my name, that is where I must draw the line."

Cowgill defended his use of what is known as a "sponsored link" to search results for Ostermiller, and he denied he was trying to, as he put it, "sponge on anyone's reputation." * * *

Ethics and marketing experts, as well as practicing lawyers, denounced Cowgill's advertising effort, contending he was unfairly trying to cash in on another lawyer's reputation. Ostermiller, who has represented lawyers and judges in disciplinary and ethics cases since the late 1980s, was profiled recently in The Courier-Journal and Lawyers Weekly USA, a trade publication. * * *

Sponsored link advertising also known as "key word" or "trigger" advertising is common among businesses.

Many lawyers buy sponsored links to generic terms such as "divorce lawyer" or "drunk driving." But representatives of the American Bar Association, as well as lawyer-marketing professionals, said they had never heard of a lawyer acquiring a link to a competing lawyer's name.

Brad Hart, manager of sponsored-link lawyer advertising at CJ Advertising in Nashville, Tenn., described the practice as "cheating" and said, "No one should do that."

Kevin O'Keefe, a retired Seattle lawyer who writes a blog short for Web log about lawyer marketing and helps lawyers market themselves through blogs, compared such a practice to "standing in front of another lawyer's office with a sandwich board saying, `Would you consider coming down to my office instead?'"

See the story for much more.

Posted by Marcia Oddi on Tuesday, July 06, 2004
Posted to General Law Related

Monday, July 05, 2004

Environment - Stories Today

Danger of Goldfish. An interesting story in the Gary Post-Tribune today reports on how goldfish can damage a lake's fish population. (Unfortunately Trib links work only on the day of publication; they do not archive their stories.) Some quotes:

Being an originally Asian fish easily targeted by predators in deeper waters, goldfish in such large numbers are probably not making their way to the lake through streams or underground connections.

Instead, officials say, the popular, if hardly exotic, pets are being illegally transplanted there by people who dont wish to keep them but also dont wish to flush them. Many will not find the fish new aquariums when they grow. And they can grow up to 17 inches long.

Introduced to a U.S. lake, the temperate fish can thrive in cold water if its deep enough.

It only takes two, said Robertson of the mysterious goldfish repopulation.

And then you have a goldfish population of bottom-feeders, not unlike common carp. The alien fish swim in and kick up the mud, officials said, and destroy bass nests in the ground.

They can be quite destructive, said Jonathan Lowrie, a marine biologist and California-based consultant. Theyre considered an invasive species.

Lowrie said the goldfish produce large amounts of mucus, and can lower the oxygen level to a level they are comfortable with but one that can make bass sick.

Dairy Farm Permit. The Muncie Star-Press reports today: "IDEM to issue draft permit to large dairy."
WINCHESTER - The Indiana Department of Environmental Management expects to issue a draft permit within two weeks to the proposed Union-Go Dairy, which would house 1,650 milk cows.

"After we put out the draft permit for the public to review, there will be a public comment period," said IDEM spokesperson Amy Hartsock. "Sometime during that public comment period, we will have a public hearing."

Hartsock said the public hearing was requested by the permit applicant, Tony Goltstein.

"I asked for the public hearing to be [legally] safe, so we don't have problems," Goltstein said. "We did everything IDEM required, even the synthetic liner the opponents asked for, and monitoring wells. We did everything, so hopefully we have a good chance [of receiving the permit]."

Hartsock said Goltstein had agreed to install ground water monitoring wells and to line the large, earthen, manure-storage lagoon not only with compacted clay but to place a synthetic liner on top of the clay. * * *

IDEM's proposed decision to issue a permit is tentative. A final decision will be made after public comments are received.

The agency is requiring Goltstein to obtain an individual NPDES (National Pollutant Discharge Elimination System) permit. He had originally applied for a general NPDES permit.

A general permit would have imposed general standards, whereas the individual permit lays down requirements specific to Union-Go's operation.

"At the same time they are seeking an individual NPDES permit, they have appealed our determination that they were ineligible for a general NPDES permit to the Office of Environmental Adjudication," Hartsock said. "That is a review process that will determine if our decision was correct."

Hog farms. A 6/16/04 story today on TheIowaChannel.com site reports that:
The state's highest court struck down a 1998 law passed by the Iowa Legislature that gave immunity from lawsuits to hog confinement owners. The Iowa Supreme Court agreed with a lower court ruling that the law was unconstitutional.
The link to the story and to the June 16, 2004 decision itself, Gacke v. Pork Xtra, thanks to Marty Lucas of bigeastern.com.

An AP story from 6/17/04, published in Iowa Farmer Today, reported:

DES MOINES, Iowa The Iowa Supreme Court on Wednesday ruled that factory hog farms are not immune from nuisance claims filed by unhappy neighbors, a decision that could have widespread implications in rural Iowa.

The Supreme Court sent a lawsuit against a rural Rock Valley farm back to district court over erroneously allowed evidence, but backed the lower court's finding that a state law granting hog farms immunity from nuisance claims was unconstitutional and an unwarranted government restriction. * * *

The high court said the Gackes, who moved into their home 22 years before the hog farm was built, suffered both financially and personally.

The court cited Iowans' constitutional right to acquire, possess and protect property, saying the immunity law infringes on that right.

"The plaintiffs' right to possess their property includes their right to use and enjoy it," the court said.

Thomas Lipps, the Gackes' attorney, said the immunity law kept factory farms from being accountable. He accused Republican legislative leaders of bowing to special interests when the law was passed in the mid-1990s.

"We are pleased that the Supreme Court has recognized that the Legislature is prohibited from allowing special interests to run over rural Iowans," he said.

The upcoming issue of Newsweek has a story about both the Iowa case and a Nebraska suit:
Sick of the stink, the Stephenses joined 10 other neighbors and took the hog producer to court, suing for a loss of quality of life. A Nebraska appeals court has sided with them, ruling late last month that the hog producer, Progressive Swine Technologies, must compensate its neighbors for living with the noxious fumes. It was left to a state court to determine the damages. The state of Iowa has also delivered a blow to the confinement livestock industry, the factory-like farms where thousands of pigs or cattle are caged in small pens. The Iowa Supreme Court recently decided that residents could sue livestock producers, striking down the state's Right-to-Farm law. The court ruled that the constitutional right to own property "includes the right to use and enjoy it." Pig and cow manure has always been part of country life. But the huge livestock operations, with manure lagoons the size of football fields, are a bit more rank than Old MacDonald's farm.
Close readers will recall that we reported on the June 15th Nebraska Court of Appeals ruling, Stevens v. Pillen, in a June 16 Indiana Law Blog entry.

Posted by Marcia Oddi on Monday, July 05, 2004
Posted to Environmental Issues

Indiana Courts - Blakely's impact on our federal district courts

The Munster Times has a story today on the impact of Blakely v. Washington on federal defendants. The headline is "Defendants to get more leverage at sentencing - FEDERAL COURT: U.S. Supreme Court ruling gives juries more say in determining prison terms." Some quotes:

HAMMOND -- The fishing may not be so good anymore for federal prosecutors who used to reel in criminal defendants with unpleasant plea bargains that were still better than being harpooned by Draconian sentencing guidelines.

Prosecutors and defense lawyers are still scrambling to assess the impact of last month's U.S. Supreme Court ruling giving defendants more protection against enlarged prison terms.

"It may not put (plea negotiations) on complete hold, but we definitely are going to have to shift gears a little," David Capp, first assistant U.S. attorney for the Northern District of Indiana, said last week.

Jerome T. Flynn, executive director of the Northern District of Indiana Federal Community Defender Inc., which represents indigent criminals in federal court, said, "You cannot go into a sentencing now or enter into a plea agreement without understanding or getting a feel for the consequences of that case."

The Supreme Court ruled June 24 that a judge cannot lengthen a criminal's sentence using facts not considered by a jury.

Other Indiana Law Blog entries on Blakely include: 6/25/04 and 6/26/04.

[More] "High Court May Have to Revisit Sentencing" is the headline to this AP story today. Some quotes:

WASHINGTON (AP) -- Just starting their summer break, Supreme Court justices may have to deal quickly with fallout from their decision that is changing the way judges sentence convicted criminals. * * *

The government wants clarification of the June 24 ruling that appears to give defendants a right to demand that every fact that could lengthen a sentence be put to a jury and proved beyond a reasonable doubt.

Under procedures now common in federal and state courthouses, judges make many routine factual determinations, such as the quantity of drugs seized in a raid, whether a gun was used in the crime and how much money is at issue in a fraud case.

[AP link via How Appealing]

[Update 7/6/04] "Ruling could revamp sentencing system" is the headline to this story this afternoon in Long Island New York's Newsday. Some quotes:

A 17-year-old system of sentencing in the federal courts has likely been gutted by a recent U.S. Supreme Court decision, experts say, and judges and prosecutors nationwide are feverishly trying to figure out what to do next. * * *

"When a judge inflicts punishment that the jury's verdict alone does not allow ... the judge exceeds his proper authority," said the majority's decision, written by Justice Antonin Scalia. * * *

[T]he high court's minority judges said, the opinion effectively scuttles the federal sentencing guidelines, first put into place in the 1980s.

"What I have feared most has now come to pass," Justice Sandra Day O'Connor wrote for the dissenters. "Over 20 years of sentencing reform are all but lost and tens of thousands of criminal judgments are in jeopardy." * * *

The federal sentencing guidelines provided judges with a detailed framework from which so-called upward or downward departures could be imposed, depending on factors such as the defendant's cooperation with prosecutors.

Prior to the Blakely decision, federal judges could consider factors in sentencing that were not heard by a jury or articulated in a guilty plea. In addition, the burden of proof for a judge at a sentencing hearing is lower than at trial, so the judge could even consider conduct that a jury acquitted the defendant of.

But the guidelines have been increasingly a target for criticism by judges who say they are often constrained to impose unduly harsh sentences.

"The court could not have assembled this majority [of Supreme Court judges] were it not for years of growing discontent among the federal judiciary about the drift of federal sentencing policy ... Judges have been increasingly upset about their decreasing degree of authority over sentencing," said Indiana University law professor Frank O. Bowman, an expert in federal sentencing.

Another case, decided in 2000, known as Apprendi v. New Jersey, first signaled the Supreme Court's resolve to limit judicial discretion in tacking on additional prison time. In Apprendi, the court ruled that a judge can't make a unilateral decision to go beyond the maximum sentence allowed by law unless it is the result of a jury finding or admission of guilt. The Blakely decision has gone even further, experts say. Now, a judge can't depart from the federal sentencing guidelines in any way that increases the defendant's prison time - unless it is based on a jury finding or admission of guilt.

Posted by Marcia Oddi on Monday, July 05, 2004
Posted to Indiana Courts

Indiana Law - Indianapolis' Curfew Law Enforcement

On March 18, 2004 the Indiana Law Blog posted this entry that began:

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

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

A law enforcement officer may not detain a child or take a child into custody based on a violation of this section unless the law enforcement officer, after making a reasonable determination and considering the facts and surrounding circumstances, reasonably believes that:
(1) the child has violated this section; and
(2) there is no legal defense to the violation.
The change takes effect immediately.
On June 24, 2004 the ILB posted an entry surveying the use of the curfew in northwest Indiana and Michigan City, following the 7th Circuit's action and the General Assembly's revision of the state law. As the Gary Post-Tribune reported "Curfew enforcement in Indiana has ranged from non-existent to spotty this year." Some cities and towns are enforcing the new state law, some municipalities have adopted new curfew ordinances patterned on the new state law, some are enforcing their old ordiances, and some are doing nothing.

According to a report in the Indianapolis Star this morning, Indianapolis falls in the "doing nothing" category:

The reason: Indianapolis police didn't know about the law, while the Marion County Sheriff's Department is waiting to make sure the curfew is legal.

Indianapolis teens were charged more than 1,000 times under the previous law from 2001 until it was struck down in January by a federal appeals court.

"There was a big press conference saying we couldn't arrest," Indianapolis Police Sgt. Steve Staletovich said. "But there was no hoopla telling us we could again."

Word from top police administration officials never filtered down to officers on the street, said Capt. David Allender of the department's juvenile branch.

Meanwhile, as reported in this Indianapolis Star story last Wednesday (July 1), the ICLU has sued to block the new curfew law:
The Indiana Civil Liberties Union asked a federal judge Wednesday to stop the state from enforcing its curfew law until the courts decide whether it is constitutional.

In U.S. District Court in Indianapolis, the ICLU argued that the latest version of the law violates parents' right to give their children permission to be out late.

There is no exception for anyone "who wants to go to the prom," said Kenneth Falk, ICLU legal director.

The law bans minors from staying out past 11 p.m. on weeknights and 1 a.m. on weekends unless they are exercising constitutionally protected rights, such as attending political protests or church services.

ICLU officials asked U.S. District Judge John Tinder to impose a preliminary injunction against the law until the courts decide the issue. Tinder did not rule Wednesday on the request.

The hearing is the latest in a legal battle that has pitted public safety against parental rights.

The story points out that this is the third time the ACLU has challenged the statute:
Although the curfew is state law, Mayor Bart Peterson and Marion County Sheriff Frank Anderson are listed as defendants because the city and county carry out enforcement.

A federal judge ruled in favor of the Hodgkins family in 2000, saying the law was too broad and violated the First Amendment rights of children.

In 2001, the General Assembly changed the law to allow minors arrested on curfew violations to avoid prosecution if they were involved in activity protected by the First Amendment.

But the Hodgkins family continued to fight, saying that even with the exemptions, children and parents would fear arrest. In January, the 7th U.S. Circuit Court of Appeals in Chicago struck down the law.

In March, the General Assembly revised the law again to address constitutional issues. But lawmakers did not follow warnings from the ICLU and city of Indianapolis attorneys to include a parental-permission exemption.

The current defenses under the state law, which were not changed by the 2004 legislation, are listed at IC 31-37-3-3.5. (Note that the 2004 changes made to sections 2 and 3 of the law, adding the language quoted earlier in this entry, and which have been in effect since March 17th, are not yet reflected in the General Assembly's online version of IC 31-37-3.)

This morning's Star story continues:

Indianapolis police now will start enforcing the law. But their counterparts in the Sheriff's Department won't.

"Until we get word this law is going to stand, we're not going to enforce it," said Lt. Jim Cleek, referring to the latest challenge to the law by the Indiana Civil Liberties Union. * * *

The biggest conflict over the law continues in Indianapolis, where the ICLU sued the city in March over the latest version of the statewide curfew because it does not include an exemption for teenagers who have their parents' permission to be out late.

In a side-bar to today's story the Star reports that "As a result of the [7th Circuit decision in January 2004], the city stopped enforcing the law. That's when Indianapolis officials fell back on a city curfew ordinance, which allows officers to issue citations to juveniles breaking curfew." A check of the City's ordinances show that Chapter 381, MINORS, of the REVISED CODE of the Consolidated City and County, INDIANAPOLIS/MARION, INDIANA, Codified through Ordinance No. 10, 2004 (Supplement No. 12), includes this provision, enacted in 2000:
Sec. 381-103. Application.
Sections 381-101 and 381-102 of this chapter do not apply to a child who is:
(1) Accompanied by the child's parent, guardian, or custodian;
(2) Accompanied by an adult specified by the child's parent, guardian, or custodian; or,
(3) With the consent of the child's parent, guardian, or custodian, either participating in, going to, or returning from:
a. Lawful employment;
b. A school-sanctioned activity; or,
c. An expressive, religious, or associational activity protected by either federal or state law, including but not limited to the free exercise of religion, freedom of speech, and the right of assembly.
(G.O. 101, 2000, 1)

Posted by Marcia Oddi on Monday, July 05, 2004
Posted to Indiana Law

Sunday, July 04, 2004

Economic Development - China

Essential reading on economic development and globalization today: the NY Times Magazine cover story, titled "The Chinese Century." About one-third through is a section titled "We Have Created a Monster." The section begins:

In the political debate over trade and jobs, China is the place where the world's companies choose to exploit low-cost manufacturing. The framing of this debate implies that American consumers and businesses have strong choices in the market; in fact, China, supplying ever more goods as it does, in ever more varieties and at ever better prices, is straitjacketing the choices of American businesses. China's size does not merely enable low-cost manufacturing; it forces it. Increasingly, it is what Chinese businesses and consumers choose for themselves that determines how the American economy operates. The American political debate on China's economic threat overlooks this dynamic entirely.

The experience of Motorola, the U.S. telecommunications giant, offers a lesson in how China's size changes the rules of competition and consumption there and everywhere else.

Posted by Marcia Oddi on Sunday, July 04, 2004
Posted to Indiana economic development

Indiana Law - Local Government Finances

Two interesting stories today on local government financial matters:

"Who controls funds levied each year specifically to pay for reassessments?" That is the question asked in a suit in Grant County reported today by the Marion Chronicle-Tribune. Some quotes:

A local squabble over who controls taxpayer funds has the attention of officials across the state, who wonder how a pending lawsuit might affect the way counties budget for reassessments.

At issue: Who controls funds levied each year specifically to pay for reassessments? Grant County Assessor Jay Walters believes he has control of those funds. In December, he filed a lawsuit against the Grant County Council, saying it violated the law by refusing to grant him the full amount of the fund for 2004: $374,490.

The council, mired in fiscal crisis and wary of Walters' past spending habits, granted him $338,712, a 10-percent reduction equivalent to one employee. As the county's fiscal body, the council believes it has the right -- and responsibility -- to determine when to make cuts.

This week, a judge will be asked to settle the matter. A summary judgment hearing is scheduled for 9:30 a.m. Thursday before Grant Circuit Court Judge Thomas Hunt. Across the state, officials will be watching.

"Caseload jump impacts City Court" is the headline to a story today in the Munster Times about the increasing demands on the Crown Point City Court. "[I]n the last five years, Crown Point City Court's caseload has nearly tripled, from 1,183 cases in 1999 to 3,137 in 2003." More:
"Even though our caseload tripled, the staff size stayed the same, which leads to the problems we have today," [Judge Kent] Jeffirs said. He transferred funds otherwise spent on equipment and maintenance to pay extra hours for full-time Clerk Donna Zahler and part-time Clerk Tammy Evans, who, Jeffirs said, is now working nearly full time, increasing her hours from 25 to 34 per week. Jeffirs will appear before the City Council to ask that Evans' position be changed to full-time. * * *

Whatever the reason, Crown Point's City Court budget is considerably less than some other municipalities with caseloads of similar size, Jeffirs said. This year's budget is $119,592, compared to Hobart's, at $226,455. The 2003 budget was $92,754 in Crown Point and $221,262 in Hobart. Hobart's caseload, however, was 3,550 and Crown Point's stood at 3,137. In fact, Hobart's new cases dropped by 2 percent from 2002 to 2003, while Crown Point's rose by 30 percent for the same time period.

Jeffirs has already made improvements to the court's efficiency and to bring in more money to the city, including automating and computerizing the department, implementing a new filing system, and implementing a new schedule of payable offenses and payment methods, among other steps.

As of March 1, the court began collecting bond fees. As of June 30, they have generated nearly $12,000 for the city in its first four months. The court is now implementing an infraction and ordinance violation deferral program that could bring another $50,000 a year into the city's general fund.

Posted by Marcia Oddi on Sunday, July 04, 2004
Posted to Indiana Law

Environment - Chicago's Top Ten List of "Worst Smells"

Even though it is a Chicago list, Indiana Steel Mills made #10:

As executive director of the Lake County (Ind.) Solid Waste Management District, Jeff Langbehn knows his odors. But solid waste isn't the worst, he said; it's the steel mills.

"Ask any region rat," said Langbehn, referring to denizens of northwest Indiana. "When the wind is off the lake, you can smell it all the way down to Crown Point. It's like a sulfur compound, clearly a steel-mill smell."

There are three steel mills in the area: ISG and Ispat Inland, both in East Chicago, Ind., and U.S. Steel in Gary.

See the whole list here in this Chicago Sun-Times story headlined "Where the wild smells are."

As a former region rat who daily rode the South Shore from Chesterton to the Loop and back in the 60s I recall that all we passengers held our breath as we passed through East Chicago/Whiting and that I couldn't imagine how anyone could actually live there.

Posted by Marcia Oddi on Sunday, July 04, 2004
Posted to Environmental Issues

Indiana Law - DNA used to nab tree poacher

"DNA test catches tree poachers" is the headline to this AP story on the Indianapolis Star website this afternoon. Some quotes:

In an unusual feat of laboratory sleuthing, Purdue University scientists solved the case of a stolen black walnut tree by using DNA analysis to match two logs sold to a lumber mill to a tree stump more than 60 miles away.

"This DNA technology put the log back on the stump," said Keith Woeste, a molecular geneticist at Purdue's Hardwood Tree Improvement and Regeneration Center.

Woeste believes this is the first time a tree-poaching case has been solved using the same genetic tests used in criminal cases such as rapes.

The case began in November when an incensed landowner in western Indiana's Warren County contacted the Indiana Department of Natural Resources after finding the stumps and chainsawed branches of a black walnut tree and a black cherry tree on his property. * * *

Conservation officer Don Dyson said he and his colleagues found tracks from machinery alongside the two tree stumps.

They quickly determined that a timber-cutting crew had been cutting trees on contract on adjacent property at the time the trees well across the property line vanished. Their investigation led to a lumber mill in the city of Peru about 60 miles to the northeast where the state-licensed timber-cutter in question routinely sells trees he harvests.

There, Dyson found two large black walnut logs awaiting their date with the mill's saws that appeared to match the missing tree's description. * * *

[Students from Purdue performed] a genetic analysis technique called DNA fingerprinting to compare the confiscated log's DNA to that of the stump and branches. * * *

Armed with the DNA match, Dyson presented the evidence to the licensed timber-cutter whose workers were suspected of cutting down the two trees.

The case was not prosecuted because the landowner agreed to settle out of court and the timber-cutter was eager to avoid a tree poaching conviction that could have cost him his state license.

"Once he found out all the evidence that we had he was more than willing to settle with the landowner," Dyson said. "That license is his livelihood."

The man paid the landowner more than $9,000 -- about three times the estimated value of the two trees. A state law allows property owners to recoup three times the value of a tree accidentally cut or purposely cut down by someone else, Dyson said.

What is that law? It is found in IC 25-36.5-1, "Regulation of Timber Buyers by Department of Natural Resources." IC 25-36.5-1-3.2(f)(2), which provides: "(f) The complaint served under IC 4-21.5-3-8 to commence a proceeding under this section may seek the following: ... (2) (2) Damages equal to three (3) times the stumpage value of any timber that is wrongfully cut or appropriated without payment."

Another interesting item in the AP story is this: "[Conservation officer Don Dyson] said most tree-poaching cases in Indiana go unreported or unprosecuted because landowners don't notice a tree has been felled and hauled away for years, if ever."

Timber spiking. Another Indiana law, IC 35-48-3, makes timber spiking a felony. Section 2 provides:

A person who recklessly, knowingly, or intentionally, without claim or right or consent of the owner, drives, places, or fastens in timber a device of metal, ceramic, or other substance sufficiently hard to damage equipment used in the processing of timber into wood products, with the intent to hinder the felling, logging, or processing of timber, is guilty of a crime and may be sentenced under this chapter.

Posted by Marcia Oddi on Sunday, July 04, 2004
Posted to Environmental Issues | Indiana Law

Economic Development - Chicago Coke Plant May Come Back to Life

"Warming trend at coke plant: Growing steel demand spurs plans to reopen; 200 jobs possible," is the headline to this story today in the Chicago Tribune. The story is about "the former LTV coke plant [that] broods silently on the industrial shores of the Calumet River." More:

[T]he plant has been shuttered for the past 30 months, and the trains that once rolled out full of coke bound for LTV's steel mill in nearby East Chicago, Ind., no longer run.

That may be about to change, however. The plant, with its bewildering skein of pipes and its banks of ovens for transforming coal into the hot-burning coke, may be coming back to life.

If it does, it will be a remarkable event. Remarkable because when LTV penny pinchers pulled the plug on the 240-employee facility known as the Chicago Coke Battery, the big plant wasn't just closed, but rendered useless.

Now, almost amazingly, it's needed again. Negotiations now in the final stages promise to lead to a reopening, and a costly rebuild, of the Southeast Side facility.

The irony is the more than 200 jobs that the plant promises never would have been lost "had somebody paid the cost of a week's worth of natural gas" when LTV Corp. was in its death throes in early 2002, says an official with the United Steelworkers union,

The story of how one of the most modern coke plants in America was sentenced to death, and how a buyer now appears willing to spend heavily to buy it and bring it back to life, reflects the remarkable turbulence that has rocked the U.S. steel industry over the past few years.

Gets your attention, doesn't it?

Posted by Marcia Oddi on Sunday, July 04, 2004
Posted to Indiana economic development

Environment - Stories Today

"Tiny particles can pose big risks: Air pollutants can have same effect as living with smoker," is the headline to this story today in the Indianapolis Star. See also the July 1 Indiana Law Blog entry on fine particle (PM 2.5) designations.

The Chicago Tribune today has a story headlined "States take lead in clean air quest: Wetlands, wildlife damage prompting independent action." Some quotes:

Significantly, the state actions are bipartisan, with Republicans such as California Gov. Arnold Schwarzenegger pledging to uphold and defend the new standards and New York's Republican Gov. George Pataki committing his state to join California.

In Massachusetts, Republican Gov. Mitt Romney recently unveiled a climate protection plan that would make the Bay State the first to evaluate carbon dioxide emissions before approving state construction and road projects.

Pataki also spearheaded the formation of an 11-state group in the Northeast that is developing its own cap-and-trade system for carbon dioxide emissions from power plants. The program would set a regional limit for how much carbon dioxide a plant could produce and allow emitters who produce less than allowed to trade credits with those that exceed the cap.

The plan, similar to a successful federal cap-and-trade system to curtail acid rain, is advancing in the wake of congressional failure to establish a national cap-and-trade program. * * *

Of course, not all states have eagerly embraced climate change initiatives.

In 1998 and 1999, 16 states, including Illinois, passed anti-Kyoto legislation. The Illinois law bars state agencies from adopting new rules to reduce greenhouse gas.

Yet the state last week joined 10 other states and 14 environmental and citizen groups in filing a legal brief that asserts that the Clean Air Act gives the U.S. Environmental Protection Agency the authority to regulate greenhouse gas emissions from motor vehicles.

[More]"As Battle for Beach Access Rages in New Jersey, Private Club Digs Its Heels Into Sand," is the headline to this interesting story today in the NY Times. A quote:
The court's decision in May is the first major one in 20 years in New Jersey dealing with the public trust doctrine, a concept created centuries ago in Roman law that opened the ocean and tidal land to all for fishing and navigation.
I was able to locate the NJ Court of Appeals opinion, RALEIGH AVENUE BEACH ASSOCIATION v. ATLANTIS BEACH CLUB, INC. (6/3/04). Access it here.

Posted by Marcia Oddi on Sunday, July 04, 2004
Posted to Environmental Issues

Indiana Law - Statewide Self-Exclusion List for Indiana Gamblers

"Gamblers get banning option: Indiana program offers statewide self-exclusion list" is the title of Lesley Stedman Weidenbener's Sunday column in the Louisville Courier-Journal. A quote:

Until last Thursday, when the new program started, the commission merely required the state's 10 casinos to create their own voluntary exclusion programs with minimum bans of six months. The [Indiana Gaming Commission] also required them to stop check-cashing privileges and direct-marketing appeals to people who signed up.

Unlike in some other states, the casinos did not share that information among themselves or with the state, requiring gamblers to go from boat to boat to be excluded from all of them.

The new program is the result of a 2003 law passed by the Indiana General Assembly after a series of stories in The Courier-Journal found that based on research in other states an estimated 82,300 people in Kentucky and 121,600 in Indiana likely have gambling problems.

The series also found that self-eviction programs, while not foolproof, are considered important tools in helping addicted gamblers. Counselors often encourage compulsive gamblers to ban themselves as a step toward facing up to their problems and beginning recovery efforts.

The newspaper reported that Indiana lacked the kind of uniform system for handling voluntary evictions that exists in other states, including Missouri, where about 5,000 people have signed up for lifetime bans.

Posted by Marcia Oddi on Sunday, July 04, 2004
Posted to Indiana Law

Saturday, July 03, 2004

Law - Small firm fought almost alone on behalf of detainees

"Scrappy Group of Lawyers Shows Way for Big Firms" is the headline of this interesting story published Wed., June 30 in the NY Times. Some quotes:

Te Center for Constitutional Rights, the scrappy left-leaning public-interest group that filed the first lawsuits on behalf of people detained as suspected terrorists in Guantnamo Bay, Cuba, works out of an office in Lower Manhattan, not far from some of the biggest law firms in the nation. But until the cases reached the Supreme Court, the group fought almost alone. * * *

The mood in the offices was bright yesterday, as the group savored its victory in what some legal scholars are calling the most important civil liberties case in half a century. On Monday, the Supreme Court ruled that the more than 600 detainees at the Guantnamo naval base had the right to challenge their detentions in court. "I feel most vindicated," Mr. Daniels said, "by the way many organizations are now trying to claim a piece of this."

That is a new phenomenon. Early on, the establishment bar mostly kept its distance from the cases, filed in early 2002, months after the Sept. 11, 2001, attacks. "They made a decision that it was too hot and too soon," said Barbara Olshansky, deputy legal director of the center. There was a single exception.

After representatives of a group of Kuwaiti detainees tried and failed to convince two major firms to take those cases in 2002, they called on a lawyer at Shearman & Sterling, Thomas B. Wilner. Mr. Wilner said his firm's decision to take the cases, separate from the ones that the center litigated for Australian and British detainees, was harder than the center's had been.

"That's their job to do these things," he said. "For a private law firm to take it on at that time was very, very controversial. We were sort of ostracized. It was very difficult for Shearman & Sterling."

Ms. Olshansky said times had changed. "He had to fight with his partners to take the case," she said about Mr. Wilner. "Now they use this case to recruit people." * * *

Posted by Marcia Oddi on Saturday, July 03, 2004
Posted to General Law Related

Friday, July 02, 2004

Indiana Decisions - Lake County Awaiting Tax Court Decision

"Steel tax ruling near" is the headline to this story today in the Gary Post Tribune. Some quotes:

CROWN POINT Supporters of a $53 million settlement with U.S. Steel have some cause for hope after Tax Court Judge Thomas Fisher agreed to rule quickly.

The judge said he would rule within 30 days whether Lake County has the authority to settle with the steel giant over the objection of Calumet Township Assessor Booker Blumenberg.

Fisher came from Indianapolis to hear the arguments after Blumenberg filed a motion asking the judge to set aside the agreement announced in May.

U.S. Steel and the county have agreed on a dollar figure for dropping a series of lawsuits on the assessment of its Gary Works.

Blumenbergs attempts to stop the settlement have picked up support from homeowners, who are upset over rising tax bills and believe the steel mills received special treatment.

The is much more to the story; but remember, the Trib does not archive its stories, so read it today.

The Munster Times also has a report, headlined "Township assessor hopes to melt steel tax settlement: Tax court judge to decide in 30 days whether to oust Blumenberg from pact." Some quotes from the beginning of the story:

CROWN POINT -- Calumet Township Assessor Booker Blumenberg Jr., stood tall, but outnumbered Thursday, against a compromise that saves U.S. Steel Gary Works tens of millions of dollars in overdue property taxes.

Indiana Tax Court Judge Thomas Fisher heard arguments for and against the disputed deal from lawyers for the township as well as Lake County, the state and U.S. Steel Corp. who favor a deal they struck to settle a 3-year-old tax dispute. Fisher questioned whether he has the power to sweep aside Blumenberg and his objections. He said he will rule on the question within 30 days.

Under the settlement, the steel giant agrees to pay $44 million in back taxes, donate 200 acres of lakefront land to the city of Gary and invest $150 million in its Gary Works plant over the next four years. The state agrees to pay Lake County $8.9 million in property tax replacement credits. In return, the state and county would forgive U.S. Steel from having to pay the balance of their tax bills between 2001 and 2003.

Posted by Marcia Oddi on Friday, July 02, 2004
Posted to Indiana Decisions

Indiana Decisions - One Decision from the Court of Appeals Today

Jeffrey J. Atkinson v. State of Indiana (7/2/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge

Appellant-defendant Jeffrey J. Atkinson appeals his convictions for Resisting Law Enforcement, a class A misdemeanor, and Possession of Paraphernalia, a class A misdemeanor. Specifically, Atkinson maintains that the convictions cannot stand because the record is silent as to whether he waived his right to be represented by counsel at the trial. In the alternative, he argues that the evidence was insufficient to support either conviction. Concluding that the record does not support a conclusion that Atkinson waived his right to be represented by counsel at trial, we are compelled to reverse and remand. Additionally, in reviewing the evidence presented at trial, we further conclude that Atkinson may not be retried on either offense because the evidence failed to show that he committed the offenses that the State had actually charged. Thus, we reverse the judgment of the trial court and order that Atkinson be discharged. * * *

Reversed and remanded with instructions that Atkinson be discharged.
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi on Friday, July 02, 2004
Posted to Indiana Decisions

Indiana Law - Appointments to the Public Officers Compensation Advisory Commission

Among the bills passed in the 2004 General Assembly was HEA 1401, which created the "Public Officers Compensation Advisory Commission" [codified at IC 2-5-1.5].

According to a news release yesterday from the office of the Chief Justice of Indiana:

Indianas judicial branch has appointed its three members to the commission that will recommend appropriate levels of pay for the states legislators, judges and statewide elected officials, Chief Justice Randall T. Shepard and Court of Appeals Chief Judge James S. Kirsch announced today.

The nine-member Public Officers Compensation Advisory Commission, which was created by the legislature earlier this year, will meet this summer and present recommendations by September 1 for consideration during the upcoming session of the Indiana General Assembly.

The statute creating the Commission directs the Chief Justice of the Supreme Court to appoint two members and for the Chief Judge of the Court of Appeals to appoint one member. In addition, the Governor, the Speaker of the House and the President Pro Tem of the Senate also appoint members to the Commission.

Our goal was to appoint independent-minded people of great integrity who would bring instant credibility to this important commission. I am very grateful these individuals were willing to accept these appointments and provide guidance to the legislature, said Chief Justice Shepard.

Chief Justice Shepard has appointed Stephen A. Stitle, of Indianapolis, and Michael Browning, of Carmel. Mr. Stitle is chairman and chief executive officer of National City Bank of Indiana. Mr. Browning is president of Browning Investments, Inc.

Chief Judge Kirsch has appointed Jean Blackwell, who is the vice president, chief financial officer and chief of staff of Cummins Engine Company of Columbus, Ind., and a former state Budget Director.

Indiana House Speaker B. Patrick Bauer (D-South Bend) earlier appointed Allison Engine Co./Rolls Royce tool and die maker and U.A.W. Local 933 member John Bartlett of Indianapolis, who will serve as chair of the commission, and, Lee Marchant, of Bloomington, who is president and chief executive officer of L.J.M. Enterprises.

Indiana Senate President Pro Tempore Robert D. Garton (R-Columbus) appointed Mary Fink of Fort Wayne, who is a tax manager for Steel Dynamics, and Jon OBannon, of Floyds Knobs. Mr. OBannon is vice chairman, secretary and assistant publisher of OBannon Publishing. He is the son of the late Gov. Frank L. OBannon.

On July 1, Gov. Joseph E. Kernan appointed former Dean of Notre Dame Law School David Link of South Bend, and Ian Rolland, of Fort Wayne, former chief executive officer of Lincoln National Corp.

Posted by Marcia Oddi on Friday, July 02, 2004
Posted to Indiana Law

Indiana Decisions - Transfer List for Week Ending July 2, 2004

Here is the Indiana Supreme Court's transfer list for the week ending July 2, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, July 02, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - Reports on recent decisions

There were several stories yesterday about recent rulings by our state Supreme Court and Court of Appeals.

"Conviction in murder of teen set aside: Indiana courts site jury bias," was the headline to this 7/1/04 story in the Louisville Courier Journal about the Roy Lee Ward v. State of Indiana (6/30/4 IndSCt) decision [access ILB entry here]. Some quotes from the story:

The Indiana Supreme Court ordered a new trial yesterday for condemned killer Roy Lee Ward, saying there was too much community outrage for local jurors to fairly judge whether he raped and murdered 15-year-old Stacy Payne at her home in Dale.

The court ruled unanimously that Spencer Circuit Judge Wayne Roell should have granted Ward's request for a trial with jurors who had not had so much exposure to news stories and other information about the crime.

The court said that half of the jurors seated for the trial admitted they believed Ward who was ultimately sentenced to death to be guilty. One said she did not know if she could be impartial and consider only the evidence presented at trial, according to the opinion. * * *

The Supreme Court said yesterday that it is "not a prerequisite to a fair trial that the jurors be totally ignorant of the facts involved." Therefore, a juror's mere exposure to news stories is not enough to require a change of venue, the ruling said. But jurors must be willing to render a verdict "based upon the law and the evidence presented." The court said that even the one juror's admission that she may not be able to do that "alone requires that we grant Ward a new trial."

Here is AP coverage of the decision.

"Disputed billboards get OK from appeals court" is the headline to a brief story yesterday in the Indianapolis Star that reports:

Ten billboards erected on land not zoned by the city of Indianapolis can stay, the Indiana Court of Appeals ruled Wednesday. The decision, which thwarts the city's effort to restrict the number and placement of outdoor ads, found that the city attempted to place zoning restrictions on the disputed land only after the signs had been approved by the state.
The case, Metropolitan Development Commission of Marion County v. Pinnacle Media, LLC (6/30/04 IndCtApp), was reported in this ILB entry.

Additional stories may be added.

Posted by Marcia Oddi on Friday, July 02, 2004
Posted to Indiana Decisions

Environment - Recent Stories

Wetlands. "Chicago may swap wetlands" was the headline to a story Tuesday in the Chicago Tribune about how "The planned expansion of O'Hare International Airport could lead to the restoration of hundreds of acres of suburban wetlands along the Des Plaines River."

Medical Waste. A story in the Gary Post Tribune yesterday reported:

GARY Several hundred people filled Trinity Missionary Baptist Church Tuesday in opposition the licensing approval of Midwest Medical Solutions to build a medical waste facility here. The Indiana Department of Environmental Management has cleared the way for the facility to be built at 1310 Michigan St. * * *

The facility will house up to 150,000 pounds of medical waste and is expected to be the destination for up to 50,000 pounds of medical waste each day.

How can a place that cant get a Wal-Mart, get selected to be a place for medical garbage of the entire Midwest, [Rev. Dwight Gardner of Trinity Missionary Baptist Church] asked. We stand together tonight to say Gary, Indiana will not be the destination of anybodys garbage from anywhere.

Perhaps more stories to be added later

Posted by Marcia Oddi on Friday, July 02, 2004
Posted to Environmental Issues

Indiana Law - State's New "INDEBT" Website

One of the Indiana laws that took effect yesterday authorizes the department of revenue to publish on the Internet "a list of taxpayers who are subject to tax warrants issued at least 24 months before the date of the publication of the list, and 'sunsets' the authority to publish the list after June 30, 2006." Where is this law? It is found at SECTION 41 of HEA 1365 (PL 81-2004), which amends IC 6-8.1-3-16, effective July 1, 2004, by adding new subsections (j), (k) and (l):

(j) IC 5-14-3-4, IC 6-8.1-7-1, and any other law exempting information from disclosure by the department does not apply to this subsection. From the list prepared under subsection (a), the department shall compile each month a list of the taxpayers subject to tax warrants that:
(1) were issued at least twenty-four (24) months before the date of the list; and
(2) are for amounts that exceed one thousand dollars ($1,000).
The list compiled under this subsection must identify each taxpayer liable for a warrant by name, address, and amount of tax. The department shall publish the list compiled under this subsection on accessIndiana (as defined in IC 5-21-1-1.5) and make the list available for public inspection and copying under IC 5-14-3. The department or an agent, employee, or officer of the department is immune from liability for the publication of information under this subsection.

(k) The department may not publish a list under subsection (j) that identifies a particular taxpayer unless at least two (2) weeks before the publication of the list the department sends notice to the taxpayer stating that the taxpayer:

(1) is subject to a tax warrant that:
(A) was issued at least twenty-four (24) months before the date of the notice; and(B) is for an amount that exceeds one thousand dollars ($1,000); and
(2) will be identified on a list to be published on accessIndiana unless a tax release is issued to the taxpayer under subsection (b).

(l) The department may not publish a list under subsection (j) after June 30, 2006.
The Indianapolis Star writes about the new website today, in a story titled "Scofflaws owe $509 million in state taxes: Indiana posts names of offending people, businesses on the Internet." Some quotes:
Indiana officials turned to public shame Thursday to go after tax scofflaws, unveiling an online list of 26,800 businesses and individuals who collectively owe about a half-billion dollars in overdue taxes.

It's the computer version of a scarlet letter for these delinquent taxpayers. The Internet list, maintained by the Indiana Department of Revenue, includes taxpayers' names, addresses and the amounts they owe. Anyone who has owed at least $1,000 for two years is on the list. * * *

The 98,000 tax warrants on the Web site add up to $509 million. That's enough to pay the salaries of 11,000 public school teachers for a year. It's enough to wipe out, at least for a year, half of the state's budget deficit.

The biggest culprits: businesses. They make up about $460 million of the half-billion dollars' worth of warrants. More than $100 million of the delinquencies is owed by out-of-state firms. * * *

The mere threat of this public scolding, which was included in a letter sent to businesses and individuals who owed the state money, prompted more than 2,000 taxpayers to fork over almost a million dollars in back taxes.

I checked out the INDEBT website yesterday. Although it gives an incorrect citation to its authorizing law, citing it as "Indiana Public Law 1365-2004," the site works as advertised. After checking out some names online, and reviewing a lengthly list of all the individual taxpayers in Marion County who owe taxes, I elected to (just because I could) download the complete Individual List, and the complete Business List. The former is currently 3.8 MB, and the latter 13.8 MB. The lists can be readily opened, searched and sorted in Excel, or the database of your choice. But the question is, what would one do with the information on the lists of tax delinquents?

Posted by Marcia Oddi on Friday, July 02, 2004
Posted to Indiana Law

Thursday, July 01, 2004

Indiana Decisions - No new postings today

It looks like the pre-summer flurry of activity may be over. There were no postings today by the Indiana appeals courts.

Posted by Marcia Oddi on Thursday, July 01, 2004
Posted to Indiana Decisions

Indiana Decisions - Rose Acre Farms Loses Appeal in the Fed. Circuit

"Court Tosses $6.1M Judgment for Egg Farm" is the headline to this AP story today that begins:

WASHINGTON (AP) -- A federal appeals court on Wednesday threw out a $6.2 million judgment for an egg producer in a 14-year dispute with the Agriculture Department.

The court said it was not convinced that food safety regulations unduly hurt the bottom line at Rose Acre Farms of Seymour, Ind.

A claims court had said government restrictions on the sale of contaminated eggs were not narrow enough and thus amounted to an unconstitutional "taking" of private property under the Fifth Amendment.

The U.S. Court of Appeals for the Federal Circuit disagreed and ordered the lower court to re-examine whether the damage suffered by Rose Acre outweighed the Agriculture Department's interest in safeguarding the public. * * *

Regulators refused to allow Rose Acre to sell eggs in the shell from the three farms and required expensive wet-cleaning of hen houses that damaged the structures' electrical wiring. Rose Acre said it was forced to sell at a loss 700 million eggs that were diverted into low-priced markets for eggs.

The 37-page decision is only available as a Word document from the Court, but I have converted it to PDF and posted it - access it here.

[Thanks to How Appealing for the AP link.]

Posted by Marcia Oddi on Thursday, July 01, 2004
Posted to Indiana Decisions

Indiana Decisions - One 7th Circuit Case Today

YETUNDE BALOGUN v. ASHCROFT (Bd.Imm.App.) Here the panel denies the petition for review and affirms the decision of the BIA denying asylum

Posted by Marcia Oddi on Thursday, July 01, 2004
Posted to Indiana Decisions

Law - IRS Toughens Scrutiny of Land Gifts

"IRS Toughens Scrutiny of Land Gifts" is the headline to this story today in the Washington Post that begins:

The Internal Revenue Service announced yesterday that it is cracking down on improper tax deductions taken by people who give real estate and cash to environmental groups, warning that taxpayers could face penalties and charities could lose their tax-exempt status.

The IRS is specifically targeting gifts of "conservation easements" -- deed restrictions that limit some types of real estate development. The easements have become the environmental movement's key tool for preserving fragile ecosystems and millions of acres of open space.

Posted by Marcia Oddi on Thursday, July 01, 2004
Posted to General Law Related

Environment - Fine Particle (PM 2.5) Designations; Other Air Stories

This from Barnes & Thornburg re the recent US EPA PM 2.5 designations:

On June 29, 2004, EPA announced its proposed list of area attainment designations under the PM 2.5 (particulate matter of 2.5 microns or smaller) national ambient air quality standard (NAAQS). EPA has proposed to designate 243 counties in 21 states and the District of Columbia as PM 2.5 nonattainment areas. More information regarding the specific counties included can be found on EPA's PM 2.5 website.

* * * EPA has proposed to designate the following counties in Indiana as nonattainment under the PM 2.5 NAAQS: Lake, Porter, Elkhart, St. Joseph, Vanderburgh, Warrick, Dubois, Gibson, Pike, Spencer, Marion, Hamilton, Hendricks, Johnson, Morgan, Clark, Floyd, Jefferson, and Dearborn (Lawrenceburg Township only). EPA's letter to Indiana is attached here.

The final PM2.5 attainment area designations are expected to be issued by EPA in November 2004.

Here is IDEM's webpage on the National Ambient Air Quality Standards for Fine Particulate Matter (PM 2.5). (Don't miss the Indianapolis Haze Camera link.)

Here are some recent PM 2.5 stories: Indianapolis Star 6/29/04 "19 counties face order to cut soot: 5 area counties are on preliminary list." Louisville Courier Journal 6/29/04 "EPA adds counties as likely polluters: Total in Kentucky jumps from 2 to 12." Washington Post 6/30/04 "EPA Says Millions Are Inhaling Too-Sooty Air."

Other Air Stories. The NY Times has this report today headlined "Faced With New Air Standards, California's Earthbound Farmers Are Wary." A few quotes:

SAN FRANCISCO, June 30 - Beginning Thursday, all but the smallest of farmers in California's fertile San Joaquin Valley will be forced to comply with what critics say are the most stringent agricultural pollution standards in the nation, in an effort to improve air quality.

Under the regulations, which are the result of a new state law, the farmers will become the first in the nation required to seek permits to operate, while meeting governmental air quality standards for the first time. * * *

The pollution is caused by "fugitive'' dust from open fields, nitrous oxide emissions, diesel pumps and emissions from animal manure and urine that vaporize. The rest spews out of rumbling trucks and cars that race up and down the freeways here connecting the southern part of the state with the north. * * *

Michael Marsh, chief executive of Western United Dairymen, an organization representing most of the milk producers in the state, said, "We're very distressed with the regulations." Mr. Marsh said that new regulations could cost large dairy farmers as much as $5 million.

His organization filed suit against the air pollution control district, arguing that the new requirements were based on faulty, "antique science." The study on which the standards were established was conducted in 1938. This week a judge failed to grant a preliminary injunction, which would have given dairy farmers more time for scientific research and compliance.

Posted by Marcia Oddi on Thursday, July 01, 2004
Posted to Environmental Issues

Indiana Law - Many New Laws Take Effect Today

Following up on our entry Sunday on the new Indiana laws taking effect today, July 1, here are some of today's reports on the new laws.

The Indianapolis Star reports here. Some quotes:

Tens of thousands of Hoosier businesses and individuals owing overdue state taxes will have their identities and tax debts posted on the Internet beginning today as dozens of new Indiana laws take effect.

In addition, nearly every detail related to taxpayer-financed pensions of lawmakers, judges, prosecutors and public safety officers became secret at midnight.

Another new law, however, could open child welfare files to public scrutiny after children die of abuse or neglect.

Here is a Star sidebar titled "Some laws aim to protect children and other vulnerable residents."

Observation. The Indiana General Assembly used to put out a handy publication at the end of every session summarizing all the laws enacted, with indices and tables in the back. Unless I've missed something, or it is only available in print but not online, it looks like now you have to cobble together much of the information yourself, using the 2004 Digest of Enactments (which complies in order of Bill Number the digests from each bill that became law) and the 2004 Enrolled Act Summary (a table that lists the bills that became law, along with effective dates and the Public Law number assigned to the act). If you want to easily convert between bill (enrolled act) numbers and public law numbers you will need to download two other tables (PL to EA and EA to PL).

Background Check Law. The problematic HEA 1194, also discussed in our entry Sunday, is the subject of this story today in the Star. Some quotes:

A controversial part of a law that required, beginning today, FBI background checks of everyone in the home of a relative wanting to provide foster care to a child was blocked by a Marion County judge Wednesday.

Had the background-check provision taken effect, Child Protection Services caseworkers would have had to place children with strangers in foster care before considering placing the child with a grandmother or other close relative, said Ken Falk, legal director of the Indiana Civil Liberties Union, which filed the legal challenge Friday.

"Everyone knew there was a problem with this law that had to be fixed. I think this is a good solution," Falk said.

Other parts of House Enrolled Act 1194 took effect at 12:01 a.m. today. They include requiring that parents under investigation be informed of their rights, opening the records of children killed as a result of abuse or neglect, and establishing a state task force to investigate child deaths.

Posted by Marcia Oddi on Thursday, July 01, 2004
Posted to Indiana Law