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Tuesday, August 31, 2004

Indiana Decisions - Four from Supreme Court today

Travis J. Merlington v. State of Indiana (8/31/04) [Criminal Law & Procedure]Sullivan, Justice

Defendant Travis Jay Merlington was convicted of possession of methamphetamine with intent to deliver. The trial court enhanced the presumptive sentence of 30 years applicable here by an additional 15, for a total sentence of 45 years. Finding the mitigating circumstances in balance with the aggravating circumstances, we revise Merlingtons sentence to 30 years. * * *

Conclusion. We affirm Merlingtons conviction for possession of methamphetamine in excess of three grams with intent to deliver. We reverse his sentence of 45 years and remand to the trial court with instructions to issue an amended sentencing order and to issue or make any other documents or docket entries necessary to impose a sentence of 30 years, without a hearing.

Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., dissents. [without opinion]

Paul M. McManus v. State of Indiana (8/31/04) [Criminal Law & Procedure; Constitutional Law]
Shepard, Chief Justice
Paul Michael McManus was convicted of three counts of murder and sentenced to death. He challenges the constitutionality of Indianas death penalty statute and argues that his conviction is invalid due to evidentiary errors and his incompetence to stand trial. We affirm the conviction and sentence. * * *

I. Constitutionality of the Death Penalty Statute. McManus challenges the constitutionality of the version of Indianas death penalty statute in effect at the time of his sentencing, claiming that it violates the Sixth and Eighth Amendments to the U.S. Constitution. * * *

A. Sixth Amendment. McManus argues that he was denied his Sixth Amendment right to a jury trial because the Indiana death penalty statute in effect at the time of his sentencing was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). Specifically, he argues that under those cases the jury must find not only the aggravating circumstances, but must also find the mitigating circumstances and determine the balance between them. He says the statute is defective because the jurys finding is not the final legal event but merely a prelude to the judicial finding contained in the courts sentencing order.

Under Indianas statute as it read at the time of McManuss trial, a jury could recommend death only if it found the existence of at least one statutory aggravator beyond a reasonable doubt. All of our post-Ring case law concludes that a defendant whose jury has made such a finding has received what Ring and Apprendi require. Our re-examination of Apprendi and Ring provide us with no reason to change that interpretation.

McManus makes a very similar contention about how the weighing of aggravators and mitigators must occur. We have previously held that the determination of the weight to be accorded the aggravating and mitigating circumstances is not a fact which must be proved beyond a reasonable doubt, but is a balancing process. Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994); see also Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998). After examining Apprendi and Ring, we recently re-affirmed the constitutionality of Indianas statute against arguments substantially similar to those raised by McManus. Ritchie v. State, 809 N.E.2d 258 (Ind. 2004). * * *

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

In the Matter of Clifton Bruce Davidson, Jr. (8/31/04) [Attorney Disciplinary]
Per Curiam
The Disciplinary Commission has charged the respondent, Clifton Bruce Davidson, Jr., with six counts of attorney misconduct. Specifically, the Commission alleges that clients hired the respondent to represent them in various matters for which he accepted retainers and/or filing fees. After taking his clients money, the respondent took little or no action on his clients behalves and failed to respond to their inquiries about their cases. Ultimately, the respondent abandoned his law practice. Today we find, as did the hearing officer, that the respondent violated the Rules of Professional Conduct for Attorneys at Law and for this misconduct should be disbarred.

In the Matter of Derek M. Cassady (8/31/04) [Attorney Disciplinary]
Per Curiam
By failing to hold settlement proceeds in trust for a third-party medical provider entitled to a portion of the proceeds, and instead by disbursing those earmarked funds to himself and his client, Indianapolis attorney Derek M. Cassady violated the Rules of Professional Conduct.

By agreed resolution with the Disciplinary Commission, the respondent today asks us to approve a 30-day suspension for his attorney misconduct, with the entire period of suspension stayed so long as the respondent complies with certain probationary terms. Pursuant to Ind.Admission and Discipline Rule 23(11)(c), we approve the parties tendered resolution, and herein recount the facts and circumstances of this case. * * *

Posted by Marcia Oddi on Tuesday, August 31, 2004
Posted to Indiana Decisions

Indiana Decisions - Two Court of Appeals and One Tax Court Ruling Today

James L. & Carolyn S. Perry v. Gulf Stream Coach (8/31/04 IndCtApp) [Contract]
Bailey, Judge

[Issues.] Whether the trial court erroneously granted summary judgment to Gulf Stream because genuine issues of material fact exist regarding whether the limited warranty offered by Gulf Stream fails of its essential purpose; and Whether the trial court erroneously granted summary judgment to Marks RV because genuine issues of material fact exist concerning whether Marks RV breached express and implied warranties and violated Indianas Deceptive Consumer Sales Act. * * *

This evidence creates a genuine issue of material fact regarding whether Marks RV engaged in an uncured deceptive act by adopting the representations made in the Brochure. Moreover, this evidence creates a genuine issue of material fact regarding whether Marks RV knew or should have known that the representations made in the Brochure were false.

For the foregoing reasons, we affirm the trial courts grant of summary judgment to Marks RV on the Perrys breach of express and implied warranty claims. However, we reverse the trial courts grant of summary judgment to Gulf Stream on the issue of whether the Limited Warranty fails of its essential purpose and the trial courts grant of summary judgment to Marks RV on the question of whether Marks RV violated the Act. Affirmed in part and reversed in part.
BAKER, J., and FRIEDLANDER, J., concur.

David A. Yoquelet, et al., v. Marshall County (7/8/04 IndCtApp)

Apparently this is a corrected version of the opinion issued 7/8/04.

Piston Service Co. v. Dept. of Local Government Finance (8/30/04 IndTaxCt - NFP) [Real Property Assessment]

Posted by Marcia Oddi on Tuesday, August 31, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit Issues three today

Golembiewski, Michae v. Barnhart, Jo Anne (ND Ind., Judge Lee)

Before BAUER, CUDAHY, and COFFEY, Circuit Judges.
BAUER, Circuit Judge. Michael Golembiewski appeals from a judgment of the United States District Court for the Northern District of Indiana denying his petition for an award of attorney�s fees and costs pursuant to the Equal Access to Justice Act (�EAJA�). We reverse; the government was not substantially justified in supporting the Administrative Law Judge�s (�ALJ�) ruling and since the government did not complain about the computation of fees, we simply remand for the court to enter the fees requested by Golembiewski. * * *

It is not reasonable for an ALJ to find that a condition does not exist at all where the evidence establishes that it does exist even if it is �small.� The record in Golembiewski�s claim included numerous opinions by treating physicians that the MRIs established herniated or protruding discs. The ALJ�s finding of �no herniations� has no support in the administrative record. He did not �have a rational ground for thinking he had a rational ground� to find no herniations nor did the Commissioner have such a rational ground for arguing support of the ALJ�s decision. The district court�s decision constitutes an abuse of discretion.

Hinc, Thomas P. v. Lime-O-Sol Company (ND Ill.)
Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.
KANNE, Circuit Judge. Thomas Hinc, a resident of Illinois, sued Lime-O-Sol Company (�LOS�), an Indiana corporation with its headquarters in Indiana, for breach of contract. Holding that LOS�s contractual obligation to use its �best efforts� to market the product developed by Hinc was too vague to be enforceable, the district court granted summary judgment in favor of LOS. Hinc appeals. We reverse. * * *

A. Indiana Law Applies. Initially, we must determine whether Indiana or Illinois law applies. The contract here does not contain a choice-of-law provision. * * *

While the place of contracting favors Illinois, the place of negotiation, the place of performance, and the location of the subject matter of the contract all favor Indiana. On balance, we agree with the district court that Indiana law controls this case.

B. �Best Efforts� Clause. Having found that Indiana law governs, we must now decide whether the �best efforts� clause contained in the parties� contract is so ambiguous as a matter of Indiana law that it may not be enforced. Neither the parties nor our own research has found an Indiana Supreme Court or Indiana
appellate court ruling on point.

When, as here, a federal court sitting in diversity is called upon to decide an unsettled question of state law, our obligation is to deduce, as closely as possible, how the Indiana Supreme Court would rule. * * * Where possible, Indiana courts will construe contracts as being valid, rather than void. * * * In applying Indiana contract law, the primary purpose is to ascertain and give effect to the intentions of the parties. * * * This requires courts to �read the agreement in a manner which harmonize its provisions as a whole and to give effect to the parties� expressed intent.� * * * �In most cases, the intent of the parties to a contract is to be determined by the �four corners� of the contract[,]� * * * �giving the words contained therein their plain, usual, and ordinary
meaning,� * * *. �When a court finds a contract to be clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made.� * * * An ambiguous contract is construed against the drafting party. * * *

Keeping in mind the general principles and rules of construction of Indiana contract law outlined above, we now turn to the contract in this case. * * * We believe that Indiana's highest court would take the approach that "best efforts" provisions can be contractually enforced.

III. Conclusion. The "best efforts" clause at issue here was not so vague as to be unenforceable under Indiana law. We therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

USA v. Messino, Christopher (ND Ill.)
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
BAUER, Circuit Judge. [This is a Blakely/Booker case that requires close reading; I hope to come back to it later today.]

Professor Douglas Berman has reviewed the case and written this entry. He promises coments on Judge Easterbrook's dissent later today.

Posted by Marcia Oddi on Tuesday, August 31, 2004
Posted to Indiana Decisions

Monday, August 30, 2004

Indiana Decisions - Federal court upholds Indianapolis' ordinance re adult businesses

This was released this afternoon by Indianapolis Mayor Bart Peterson's office:

Federal court upholds stricter regulations for adult businesses

INDIANAPOLIS Mayor Bart Peterson announced today that a federal court in Indianapolis has upheld the key components of the citys adult business ordinance. Last August, Mayor Peterson proposed stricter regulations on adult businesses and the City-County Council in October of last year passed them. At this time, several adult businesses already had initiated a lawsuit against the city regarding the citys ordinance.

These new laws:

- Place tighter restrictions on illegal conduct. Several adult businesses feature booths or stalls where illegal sexual activities occur. According to health officials, such activity is unsafe and can lead to the spread of disease. The new ordinance would ban doors on viewing booths, require managers to have a direct line of sight into the booths and require proper lighting.

- Reduce the harmful effects of adult businesses. Adult businesses are typically associated with harm to surrounding neighborhoods such as high crime, drug use, prostitution and the spread of disease. In addition, such businesses are allowed to operate 24 hours a day, seven days a week. The amended ordinance now requires adult businesses to be closed between midnight and 10 a.m. Monday through Saturday. Additionally, adult businesses must be closed on Sundays.

Now that the federal court has ruled in the citys favor, the new laws can be enforced for the first time, subject only to any enforcement delay that could accompany an appeal by the adult businesses.

"This decision is a victory for the neighborhoods of Indianapolis, Mayor Peterson said. "This ordinance will enable the city to effectively regulate adult businesses while keeping our neighborhoods safe."

In addition to the adult business regulations the court has now upheld, Mayor Peterson signed in 2002 an emergency ordinance to tighten zoning requirements for adult businesses in order to prevent the establishment of an adult business downtown.

[Update 8/31/04] The Indianapolis Star coverage this morning reports that:
Richard Kammen, one of the plaintiff's [Annex Boooks Inc.] attorneys, said the ordinance was "subject to abuse" by government and could be used as a way to force stores out of business. The decision will be appealed to the Seventh Circuit Court of Appeals, he said.

In her ruling, [federal Judge Sarah Evans] Barker did not approve the entire ordinance.

She rejected a provision allowing unannounced city inspections of adult businesses "at any time" during business hours. Barker found the language too broad.

Still, Peterson -- who once called adult bookstores a threat to "the sanctity of our neighborhoods" -- hailed the court ruling as a victory for the neighborhoods of Indianapolis.

"This ordinance will permit the city to effectively and legally regulate adult businesses while keeping our neighborhoods safe," he said in a written statement.

I will try to obtain Judge Barker's decision and post it here.

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to Indiana Decisions

Law - More on Kentucky upholds life-support law

Last Friday I wrote here about reports of a Kentucky Supreme Court decision ruling that held, according to a Louisville Courier-Jounral story, that "a relative or guardian may decide to end life support for someone who is permanently unconscious even if that person hasn't expressed his wishes through a living will or other means." I've now obtained the decsion and uploaded it. It is Woods v. Kentucky. The entire document is 69 pages (and for some reason is more than 5 MB - sorry); a concurring opinion appears on p. 42 of the document; a dissent begins on p. 43 and continues to p. 69.

I was reminded of last week's Kentucky decision when I read this article that will appear in Tuesday's Christian Science Monitor (recommended by How Appealing), about the ongoing Terri Schiavo case in Florida. The lead:

MIAMI A six-year legal dispute over whether to terminate the life support of a severely brain-damaged Florida woman has placed the state's highest court at the center of a bitter clash between the right to live - and the right [to] die.

Ultimately at issue in the case of Terri Schiavo is whether the nutrition tube that sustains her life should remain connected. But what will occupy a lion's share of the argument Tuesday as her case is considered by the Florida Supreme Court is whether state lawmakers and Gov. Jeb Bush overstepped their constitutional authority last fall when they intervened to reattach Mrs. Schiavo's nutrition tube after a state judge had ordered it disconnected.

[Update 8/31/04] NPR had good story on the Schiavo legal issues this morning. I'll post the link here when it becomes available, generally at midmorning. [10:30 a.m. EST Here is the link.]

See also this lengthy feature today at Law.com. Some quotes:

If allowed to stand, Terri's Law would set a perilous precedent allowing the governor and Legislature to overturn any court ruling they don't like, leading constitutional experts say. "To anyone with even a rudimentary understanding of the Florida or U.S. Constitution, the challenge wouldn't be finding which constitutional law that it violates but knowing where to stop, because it violates so many," said Laurence Tribe, a Harvard University law professor.

"If a judicial ruling can be overturned by the Legislature, then the courts are rendering nothing more than advisory opinions," said Erwin Chemerinsky, a law professor at Duke University.

Health care and elder law attorneys worry that if the law is upheld, it will undo decades of federal and state statutes and court rulings establishing a patient's right to make personal medical decisions. These laws have set clear guidelines instructing courts how to resolve disputes in these life-and-death cases.

"This is an intrusion into what's been a well-thought-out legislative scheme that took many years to develop, not only in Florida, but throughout the country," said Valerie Larcombe, a health care lawyer and shareholder at Akerman Senterfitt in West Palm Beach, Fla.

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to General Law Related

Law - Texas Supreme Court rules a fetus is not a person

The Houston Chronicle reports today:

AUSTIN - The parents of a stillborn child cannot sue medical practitioners for negligence because a fetus is not a "person" or "individual" under state laws, the Texas Supreme Court has ruled.

The court in an 8-1 ruling overturned a decision of the 2nd Court of Appeals in Fort Worth that Tara Reese could sue a Fort Worth hospital for the mental anguish she suffered after her baby died in utero in 1998.

Lawyers for Reese had urged the court to follow 37 other states that allow wrongful-death claims for stillborn children. Texas is one of 10 states that do not recognize such claims.

The Texas Legislature in 2003 passed the Prenatal Protection Act, which defines "individual" to include an unborn child at every stage of gestation from fertilization to birth. But lawmakers then said that physicians or other licensed health care providers could not be sued if the death is the result of a lawful medical procedure. * * *

[Chief Justice Tom Phillips, writing for the majority] said the court was following its 1987 decision in Witty v. American General Capital that held the Legislature did not intend to include a fetus when it enacted the wrongful-death and survival laws in 1860 and 1895. The court said Reese could pursue a claim against the hospital for the injuries she sustained.

From this report in the Fort Worth Star-Telegram:
In a case being watched by abortion rights advocates and foes, the Texas Supreme Court on Friday declined to allow a River Oaks family to sue Fort Worth Osteopathic Hospital for the death of their unborn son.

In a decision showing some of the justices' frustration, the court voted 7-1 to stand by legal precedent that allows only infants who are born -- if just for one breath -- the right to be considered as individuals who can sue or have a suit carried out on their behalf. * * *

Chief Justice Thomas Phillips wrote that the court is not expressing an opinion about "whether a fetus is a person in either a philosophical or a scientific sense" but that the Texas Legislature, on numerous occasions, has simply declined to rewrite the wrongful death statute. * * *

Phillips pointed out that the court has revisited the wrongful death statute several times, particularly in 1987, when it said lawmakers did not intend for the words "individual" or "person" to include an unborn fetus.

Even in 2003, when the Legislature passed the Wrongful Death Act giving an embryo or fetus the same protections as the mother from violent crime, it exempted doctors and those doing medical procedures, Phillips said.

Here is the 12-page majority opinion (thanks to How Appealing) in FORT WORTH OSTEOPATHIC HOSPITAL, INC. v. REESE, a 2-page concurring opinion, and a 14-page dissent.

Here is a link to the Aug. 25, 2004 ILB entry titled "Fetus-rights case to be heard in IU classroom."

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to General Law Related

Indiana Decisoins - One Court of Appeals Decision Posted Today

Daimler Chrysler Corp. v. Derek Franklin (8/30/04 IndCtApp) [Arbitration, Contract, Attorney Fees]
Kirsch, Judge

Daimler Chrysler Corporation (Daimler) brings two appeals following a jury trial that resulted in a verdict in favor of Derek Franklin on his claims regarding a 2001 Dodge Neon automobile that he purchased. In its first appeal, Daimler raises several issues, one of which we find dispositive: whether Franklin agreed to arbitrate claims against Daimler when he entered into a contract with Community Chrysler (Community) that contained a provision requiring the parties to submit any claims against one another to arbitration. Franklin argues on cross-appeal that he should be awarded appellate attorneys fees.

In its second appeal, Daimler argues that the amount of trial attorneys fees the trial court awarded to Franklin was excessive. We affirm in part, reverse in part, and remand. * * *

On August 12, 2003, the trial court conducted a jury trial on Franklins claims. The jury decided in Franklins favor and awarded him $12,123.99 and ordered Daimler to accept return of the vehicle pursuant to the IMVPA. Daimler filed a motion for directed verdict, which the trial court denied.

Franklin filed a motion for attorneys fees, which the trial court granted in the amount of $19,405 after submission of Franklins petition documenting his attorneys time. Daimler now appeals from the denial of its motion to dismiss and compel arbitration and the award of attorneys fees. * * *

Here, Daimler, like Hyundai, is not in privity with the consumer, Franklin, and therefore cannot enjoy the benefit of the terms of Franklins contract with Community.

Finally, we note that Daimler is not an intended third-party beneficiary of the contract between Franklin and Community. To enforce a contract under this theory, the claimant must show 1) a clear intent by the parties to the contract to benefit the third party, 2) a duty imposed on one of the contracting parties in favor of the third party, and 3) performance of the contract. Angell Enters., Inc. v. Abram & Hawkins Excavating Co., Inc., 643 N.E.2d 362, 365 (Ind. Ct. App. 1994). Here, the body of the contract and the arbitration agreement between Community and Franklin does not reference Daimler and does not show a clear intent to benefit it. Accordingly, Daimler could not have been an intended third-party beneficiary of the contract, and it may not rely on the arbitration provision. The trial court did not err in denying Daimlers motion to dismiss and compel arbitration.

Franklin argues that he should recover appellate attorneys fees for defending his IMVPA [Motor Vehicle Protection Act ] judgment on appeal. Generally, the right to recover attorneys fees from ones opponent does not exist in the absence of a statute or some agreement. State Bd. of Tax Commrs v. Town of St. John, 751 N.E.2d 657, 659 (Ind. 2001). However, IC 24-5-13-22 provides that a consumer who prevails in an IMVPA claim is entitled to recover as part of the judgment the amount of his or her cost and expenses, including attorneys fees based on actual time expended by the attorney determined by the court to have been reasonably incurred by the consumer for or in connection with the commencement and prosecution of the action. * * *

Daimler makes numerous challenges to the trial courts award of attorneys fees. It alleges multiple entries, an hourly rate not justified by the locality, and entries for purely clerical, not legal, duties. It first argues that attorneys fees were charged for clerical, non-legal services. Franklins attorneys submitted itemized time sheets to the trial court detailing the amount of time spent by the two attorneys and one paralegal who worked on Franklins case. Daimler points to numerous time entries by the paralegal for copying and mailing documents. While Daimler concedes that a paralegals time may be included in the award of attorneys fees, it argues that inclusion is only appropriate when the paralegal is performing legal services that involve professional legal skills. * * *

In this case, the paralegals hourly rate was $100. We find that the trial court abused its discretion in including her fees for copying and mailing documents, which is work that requires no particular knowledge of legal concepts and is more in the nature of clerical or support staff work. * * *

We affirm the trial courts decision denying Daimlers motion to compel arbitration, and affirm the trial courts decision to award trial attorneys fees. However, we reverse the trial courts inclusion of paralegals fees for clerical work and remand for a redetermination of the amount of trial attorneys fees and for a determination of the proper amount of appellate attorneys fees. Affirmed in part, reversed in part, and remanded.
NAJAM, J., and RILEY, J., concur.

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to Indiana Decisions

Law - Sandra Day O'Connor bobblehead doll

Enough of Howard Bashman of How Appealing talking about HIS Justice O'Connor bobblehead and how much it might sell for on E-Bay. MY Sandra Day O'Connor has a place of honor on my desk -- I would never think of selling either her or the cow!

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to General Law Related

Indiana Law - Another indictment of an Indiana quasi-public entity

Michele McNeil Solida of the Indianapolis Star reports today, in a front-page story headlined "Largely unseen, bureaucrat spent thousands on self," that:

A state school technology official who oversaw a million-dollar budget spent thousands of it on himself with little or no oversight from anyone else, a review by The Indianapolis Star found.

While director of the Indiana Web Academy, the state's school Internet program, Kenneth R. Scales authorized payments of at least $316,000 to a nonprofit company that he also ran. He then signed those official state checks, sometimes cashing them himself, according to copies of canceled ones.

Here is what particularly caught my eye:
Scales' conduct at the academy highlights significant problems with checks and balances at Indiana's Intelenet Commission, which oversaw Scales and the work going on at the academy.

The Intelenet Commission was created by the General Assembly in 1986 to start and operate a statewide telecommunications network for public agencies and libraries. It doesn't fall under many of the controls of state government because it's a quasi-public agency. It has its own personnel rules. It handles its own bills and check-writing instead of using the state auditor's office.

Nobody in the governor's office directly controls Intelenet, although the governor hires the executive director and appoints five of the 16 members of the commission's board. The commission, like the state's other quasi-public agencies, operates free from many government rules, so it can get things done much faster. And the commission, which managed $49 million last year, didn't have many of its own controls in place.

There was no policy for criminal background checks, no policy to regulate what expenses employees could get reimbursed and little training in government ethics. The policy on tuition reimbursement wasn't enforced. * * *

The office of Gov. Joe Kernan is involved, too. Kernan's chief attorney, Jon Laramore, will be overseeing an audit of the commission, to be conducted by the same auditor who helped uncover and fix problems at the Public Employees' Retirement Fund, another quasi-public agency. [emphasis added]

I have written several times in the Indiana Law Blog about the 2003 Indiana Economic Development Corporation law (IEDC), most recently here, in an entry titled "Economic Development and the Indiana Governor". To quote from that entry:
(4) The 2003 IEDC law, as now amended, may not be the optimal way to meet the general assembly's purpose:
The 2003 IEDC law was enacted because of dissatisfaction with the States progress in the economic arena. Creating a new entity to develop and execute statewide economic policy, removed from the existing state bureaucracy and shielded from partisan political control was the approach selected by the 2003 general assembly in order to bring a new level of professionalism and sophistication to Indianas economic development activities. Oversight of the organization [is to] be provided by a twenty-three member, bi-partisan board designed on the principle of building a strategic alliance between the public, private, and academic realms.
Phrased another way, the law moved the economic development responsibility away from the elected governor, and away from state government as constitutionally structured, and gave it to a quasi-public authority, dissolving any direct lines of authority to the voter. Now that, through the efforts of the 2004 general assembly, the governor's appointment authority has been reinstated, perhaps the modifications could be completed by placing the department of commerce directly under the responsibility of the governor, as Tucker requires.
The internal quote is to my 2003 paper, "Maintaining the Balance of Power Between the Legislative and Executive Branches of Indiana State Government, Post 1941," available here.

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to Indiana Law

Indiana Decisions - Two posted by 7th Circuit

Easley, Cynthia v. Kirmsee, David (ED Wis.)

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Cynthia Easley appeals the district courts denial of her motion under Fed. R. Civ. P. 60(b) to vacate its grant of summary judgment against her in an action under 42 U.S.C. 1983 against four Wisconsin local governmental units and a number of their respective police officers. We affirm. * * *

Easley, however, never did file a response to the defendants summary judgment motions (local rule mandated the response within thirty days), and on November 26, 2002 (more than two months after the response due date), the court granted summary judgment to the defendants. The court noted Easleys failure to file a response, adopted the defendants findings of fact, and ruled on the merits of defendants (unopposed) motions, holding that Easley failed to establish that Kirmsees use of force was unreasonable, and, furthermore, that she also failed to prove that the four local government entities officers were inadequately trained. * * *

On appeal, Easley raises a most novel argument. She argues that she was justified in failing to respond to the defendants summary judgment motions because the court somehow led her attorney to believe that it had implicitly extended her response deadline in granting her motions for extensions of discovery. * * *

We hold that the trial judge properly exercised his discretion when he denied Easleys Rule 60(b) motion and declined to vacate his grant of summary judgment in favor of the defendants. The trial judge was entitled to expect Easley and her counsel to comply with his clear and straightforward pretrial scheduling orders and filing deadlines, and when compliance was not forthcoming, the trial judge was empowered to end the litigation by ruling on the merits of the defendants unopposed motions for summary judgment. We refuse to tie the trial judges hands and take away one of the tools necessary to enforce his scheduling orders and organize his trial calendars. It is regrettable that Easley, either through her own or her attorneys negligence, or perhaps a combination of both, may very well have missed an opportunity to pursue what may possibly have been a meritorious cause of action (we express no opinion as to the merits of her claim). However, [c]lients must be held accountable for the acts and omissions of their attorneys. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Pship, 507 U.S. 380, 396 (1993); see also Tango Music, 348 F.3d at 247 (If the lawyers neglect protected the client from ill consequences, neglect would become all too common. It would be a free good. (quoting United States v. 8136 S. Dobson St., 125 F.3d 1076, 1084 (7th Cir. 1997))). Therefore, the decision of the district court is AFFIRMED.

Whiting, Bobbi J. v. Marathon County Sheriff (WD Wis.)
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Bobbi Jo Whiting sued the Marathon County, Wisconsin Sheriffs Department and certain of its employees and officials under 42 U.S.C. 1983, alleging she suffered damages as a result of her exposure to a substantial risk of injury to which the defendants were deliberately indifferent. The district court granted defendants motion for summary judgment, Whiting appealed, and we now affirm. * * *

Put differently, Whiting sued the wrong partiesthose who lacked actual knowledge of both the risk Smith posed to Whiting generally, and the no-contact order specifically. Concomitantly, Whitings decision to forego suit against the intake officer and/or Classification Officer Rye remains a riddle. Moreover, at oral argument, surprisingly, neither party knew whether attorney Voss had been disciplined in any way by the Wisconsin agency responsible for lawyer regulation, held in criminal contempt for willfully violating the no-contact order under Wisconsins counterpart to 18 U.S.C. 402 (because, as Smiths attorney, Voss was also bound by the courts no-contact order, see, e.g., Fed. R. Civ. P. 65(d)), or if any complaint at all had been lodged against thisattorney.

Whitings claims against the Sheriffs Department are also doomed. In short, the Marathon County Sheriffs Department is not a legal entity separable from the county government which it serves and is therefore, not subject to suit. Buchanan v. Kenosha, 57 F. Supp. 2d 675, 678 (E.D. Wis. 1999) (citing cases). As with the individual defendants, Whiting sued the wrong party.

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to Indiana Decisions

Environment/Economic Development - Agriculture in the Gubernatorial Campaign

"Daniels proposes to double Indiana's livestock population" is the headline today to this story today in the Muncie StarPress. Some quotes:

MUNCIE - Opponents of large dairy farms in East Central Indiana are calling for stricter environmental regulations and a moratorium on concentrated animal feeding operations (CAFOs).

At the same time, Republican candidate for governor Mitch Daniels is proposing to loosen CAFO restrictions and double Indiana's livestock production this decade.

"Mitch said we always respect the right of localities to turn away business, but livestock represents an important opportunity for the future of Indiana agriculture," said Ellen Whitt, a spokesman for Daniels. "Many of the poorest rural areas would benefit from acting on opportunities such as this. Most such opportunities would operate in compliance with the environmental regulatory framework."

According to Daniels's Web site, one of the keys to Indiana's economic comeback is to "overhaul an environmental regulatory system that is creating unnecessary obstacles for livestock production, with a goal of doubling production during this decade."

Kathleen Dutro of Indiana Farm Bureau, which endorsed Daniels Saturday through its political action committee, said: "The problem isn't the regulations really. Indiana Farm Bureau has been part of the process of creating many of those regulations, as have environmental groups. The problem isn't so much the regulations as administering them. For example, the process of getting a permit seems to take a really long time."

On August 21 the ILB reported briefly on two stories that day in the Muncie Star-Press on CAFOs (concentrated animal feeding operations). On August 22nd the Star-Press contained this story that began: "WINCHESTER - Angry citizens expressed no confidence Thursday night in the ability of either the state or Tony Goltstein to prevent pollution and other problems at Goltstein's proposed 1,650-cow dairy farm."

Saturday the Star-Press published this story, headlined "Indiana Farm Bureau endorses Mitch Daniels." Here is a quote:

"I think they believe Mitch Daniels has a more proactive agricultural agenda," IFB President Don Villwock said. "He has traveled the state since day one during his campaign, saying that he supports agriculture, that we should expand agriculture in the state of Indiana."

Eventually, after Indiana's economy grows, Daniels would like to eliminate property taxes. "In Farm Bureau's ears, that's sweet music," Villwock said.

"I think Mitch Daniels has said not only agriculture but all business in Indiana is looking for reform in IDEM, actually major change, a shakeup in that department, that there is a lot of frustration by farmers in the slow permitting process, of the internal rules and regulations that are developed [by IDEM] rather than by the legislative process," Villwock said. "He thinks there needs to be change, and I think that's one of the main reasons Indiana Farm Bureau decided to endorse him today."

Posted by Marcia Oddi on Monday, August 30, 2004
Posted to Environmental Issues

Sunday, August 29, 2004

Law - News about Judge Posner

Judge Richard A. Posner has written "a dissent" to the 9/11 Commision Report. The lengthy article begin on the cover of the NY Times Sunday Books section today. He is identified by the Times thusly: "Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit, a senior lecturer at the University of Chicago Law School and the author of the forthcoming book ''Catastrophe: Risk and Response.''' A sample from the article:

The document is an improbable literary triumph.

However, the commission's analysis and recommendations are unimpressive. The delay in the commission's getting up to speed was not its fault but that of the administration, which dragged its heels in turning over documents; yet with completion of its investigation deferred to the presidential election campaign season, the commission should have waited until after the election to release its report. That would have given it time to hone its analysis and advice.

The enormous public relations effort that the commission orchestrated to win support for the report before it could be digested also invites criticism -- though it was effective: in a poll conducted just after publication, 61 percent of the respondents said the commission had done a good job, though probably none of them had read the report. The participation of the relatives of the terrorists' victims (described in the report as the commission's ''partners'') lends an unserious note to the project (as does the relentless self-promotion of several of the members). One can feel for the families' loss, but being a victim's relative doesn't qualify a person to advise on how the disaster might have been prevented.

Much more troublesome are the inclusion in the report of recommendations (rather than just investigative findings) and the commissioners' misplaced, though successful, quest for unanimity. Combining an investigation of the attacks with proposals for preventing future attacks is the same mistake as combining intelligence with policy. The way a problem is described is bound to influence the choice of how to solve it. The commission's contention that our intelligence structure is unsound predisposed it to blame the structure for the failure to prevent the 9/11 attacks, whether it did or not. And pressure for unanimity encourages just the kind of herd thinking now being blamed for that other recent intelligence failure -- the belief that Saddam Hussein possessed weapons of mass destruction.

The report's main proposal -- the one that has received the most emphasis from the commissioners and has already been endorsed in some version by both presidential candidates -- is for the appointment of a national intelligence director who would knock heads together in an effort to overcome the reluctance of the various intelligence agencies to share information. Yet the report itself undermines this proposal, in a section titled ''The Millennium Exception.'' ''In the period between December 1999 and early January 2000,'' we read, ''information about terrorism flowed widely and abundantly.'' Why? Mainly ''because everyone was already on edge with the millennium and possible computer programming glitches ('Y2K').'' Well, everyone is now on edge because of 9/11. Indeed, the report suggests no current impediments to the flow of information within and among intelligence agencies concerning Islamist terrorism. So sharing is not such a problem after all. And since the tendency of a national intelligence director would be to focus on the intelligence problem du jour, in this case Islamist terrorism, centralization of the intelligence function could well lead to overconcentration on a single risk.
Meanwhile, Judge Posner also has been sitting in as a "guest blogger" at Professor Lawrence Lessig's Blog for the past week. (Lessig, now a law prof at Stanford and previosuly the same at Harvard, clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court. He is big in copyright and cyberspace law.) Today is Posner's last day. One entry, from August 25th, begins:
The Technological Juggernaut. As Larry Lessig has long and presciently emphasized, law and technology are substitute methods of protecting an interest. You can sue a trespasser; but it may be cheaper just to put up a strong fence. We used to think that if the technological substitute was adequate, it would be superior to the legal; and in fact the law often imposes self-help requirements to discourage lawsuits. And we never (or rarely) used to think that technology could upset a balance struck by the law; we thought law could cope with any technological changes. The dizzying advances of modern technology have destroyed these assumptions.

File sharing is the obvious example. On the one hand, encryption technology and Internet distribution (that is, selling directly to the consumer rather than through a dealer, enabling the seller to impose by contract additional restrictions on the use of his product beyond those imposed by copyright law) may progress to a point at which the fair use privilege of copyright law is extinguished (and so Lydia Loren has made the interesting suggestion that it should be presumptively deemed copyright misuse for a copyright holder to impose by contract (or, presumably, by encryption) restrictions over and above those authorized by copyright law). It would be like having a fence and gate so secure that the fire department couldnt enter ones premises to fight a fire; in such a case the fence would be giving the homeowner greater rights than trespass law, which would permit such entry.

Posted by Marcia Oddi on Sunday, August 29, 2004
Posted to General Law Related

Environment - In depth look at Gibson Power Plant Problems

The Chicago Tribune today has a lengthy story on the Gibson coal-fired generating station air pollution problems, which are affecting Illinois residents in Mt. Carmel.

The August 26th ILB entry is available here.

Posted by Marcia Oddi on Sunday, August 29, 2004
Posted to Environmental Issues

Saturday, August 28, 2004

Indiana Law - More on Seymour school barring girl managers on boys' team

Yesterday in this entry we quoted from an AP story about two girls being barred from "managing their [Seymour] middle school boys' football team because officials worry about both sexes mingling on the team bus." The girls had managed the teams last year. One of the girls' mothers had managed the Seymour high school football team in her day. There had been no problems, but the middle school principal said "I feel like it's a proactive decision."

I was heartened today to read this AP story, which reports:

SEYMOUR, Ind. -- An attorney for the Indiana Civil Liberties Union says a junior high school's decision to bar two eighth-grade girls from managing the school's football team violates federal law.

Kenneth Falk, the ICLU's legal director, said the ruling to take the girls off the field is a direct violation of Title IX, which bars sex discrimination in schools.

"The equal protection clause of the Constitution says that any discrimination based on gender be justifiable and clearly this is not," Falk told The Tribune on Friday.

Eighth-graders Tori Meneely and Kimberly Lara were barred from managing Seymour Middle School's football team because officials worry about both sexes mingling on the team bus. Officials also said they wanted to open the positions for boys who are not involved in sports.

Three eighth-grade boys have now taken over the duties of the two girls, who managed the football and basketball teams last season.

Apparently it takes three boys to do the work that two girls handled last year! And this is interesting:
The board deferred the decision to middle school Principal Barbara Bergdoll, who said, "From now on, we will have girl managers for girls sports and boy managers for boy sports."

However, seventh-grade football player Anne Gatewood is permitted to travel on a school bus with her male teammates. Superintendent of Seymour Community Schools Robert Schmielau contends the girls' rights had not been violated under Title IX because the law did not extend to team managers.

Posted by Marcia Oddi on Saturday, August 28, 2004
Posted to Indiana Law

Indiana Courts - Imprisoned for 26 years, heartened by appeals ruling

"Imprisoned for 26 years, heartened by appeals ruling" is the headline to this opinion piece today by Indianapolis Star editorial writer James Patterson. Some quotes:

The wheels of justice often move slowly, but eventually they do turn.

After being imprisoned 26 years for a murder that reams of evidence suggest he didn't commit, Robert Earl Badelle is about to get his day in court. And it likely will be a good day for him.

Much of the evidence that wasn't allowed in either of Badelle's trials for the 1977 murder of service station operator Robert Kannapel Sr. was excluded erroneously, according to a ruling handed down Monday by the U.S. 7th Circuit Court of Appeals in Chicago.

The 7th Circuit's ruling reverses an order by U.S. District Court Chief Judge Larry J. McKinney that denied Badelle the right to appeal his conviction to a higher court. Badelle's attorney, Sarah Nagy, declined comment. * * *

Badelle was convicted at a second trial and sentenced to 60 years in prison. The battle over his guilt or innocence, however, has continued to divide the Indianapolis Police Department over the past 26 years.

In the piece, Patterson notes that he has:
written columns for nearly a decade that questioned Badelle's murder and robbery convictions. Clearly, the 7th Circuit Court of Appeals now has doubts about them, too.

The court stated:

We find that Badelle has made a substantial showing of the denial of a constitutional right as to the following issues:

Whether the prosecution suppressed evidence. . . when it did not disclose the results of Detective Clarence Grant's investigation or Detective Richard Combs' investigation.

Whether prosecution hindered trial counsel or trial counsel was ineffective in not locating, interviewing, or presenting testimony from Walter Cowherd, Reginald White, Tobin Rice, Aaron Jensen, Detective R.C. Green, Detective Tim Foley, Detective Don Campbell, and Detective Don Patton.

This case may be justice delayed but, thanks to goodness, not justice denied.

Unfortunately, a copy of the Court of Appeals order is not available online: neither is Judge McKinney's ruling. I was, however, able to access the case docket. Here are some quotes from the docket entries:
Court of Appeals Docket #: 04-1602
Filed: 3/12/04
Nsuit: 3530 Prisoner Habeas Corpus-Fed Q.
Badelle, Robert E. v. Miller, Charles
Appeal from: United States District Court * * *

3/12/04 State prisoner's habeas corpus case docketed. Certificate of Appealability denied 3/8/04. [04-1602] [1716840-1] Fee or IFP forms due on 3/26/04 for Robert E. Badelle. (hudk)

Filed Appellant Robert E. Badelle docketing statement. [04-1602] [1716848-1] (hudk)

Filed Seventh Circuit Transcript Information Sheet by Sarah L. Nagy for Appellant Robert E. Badelle. [04-1602] [1716840-1] (hudk)

3/15/04 The Antiterrorism and Effective Death Penalty Act requires approval from the Court of Appeals before a second or successive petition may be filed in the District Court. IT IS ORDERED that the appellee(s) file a statement advising this court whether the appellant(s) brought a previous petition challenging the same judgment that the appellant now challenges. (See order for further details) DW [04-1602] Statement due 3/29/04 for Charles B. Miller . (hard)

3/26/04 Original record on appeal filed. Contents of record: 1 vol. pleadings; 1 vol. loose pleadings. [04-1602] [1721828-1] (kuzi)

3/30/04 Filed Appellee Charles B. Miller jurisdictional memorandum. [04-1602] [1723216-1] (tiff)

4/7/04 Filed motion by Appellant Robert E. Badelle to proceed on appeal in forma pauperis. [1726482-1] [04-1602] (nath)

4/26/04 ORDER: The respondent shall file, a supplement to its memorandum regarding "the nature and disposition of the two causes described in paragraph 3 of his response." DW [04-1602] Supplement due 5/10/04 for Charles B. Miller. (tiff)

4/28/04 Filed motion by Appellant Robert E. Badelle for certificate of appealability. [1732826-1] [04-1602] (nath)

5/10/04 Supplement filed to its memorandum regarding "the nature and disposition of the two causes described in paragraph 3 of his response," filed by Appellee Charles B. Miller. [04-1602] [1736324-1] (tiff)

5/13/04 ORDER: This appeal shall proceed to a ruling on motion to proceed in forma pauperis on appeal, and to a determination whether a certificate of appealability should issue. [1716840-1] DW [04-1602] [1737675-1] Briefing is SUSPENDED pending further court order. (See order for further details) (tiff)

6/7/04 Supplemental record on appeal filed. Contents of record: 31 vol. state court records. [04-1602] [0-0] (greg)

8/23/04 ORDER filed GRANTING certificate of appealability. Badelle's motion to proceed in forma pauperis is GRANTED. Briefing shall proceed as follows: [1726482-1] LAB [04-1602] 1. The appellant(s) brief is due on or before 9/22/04 for Robert E. Badelle. 2. The appellee(s) brief is due on or before 10/22/04 for Charles B. Miller. 3. The reply brief if any is due on 11/5/04 for Robert E. Badelle. (See order for further details) (amyd)

Posted by Marcia Oddi on Saturday, August 28, 2004
Posted to Indiana Courts

Friday, August 27, 2004

Indiana Decisions - Three today from Court of Appeals

Jennings Aaron Rowe v. State of Indiana (8/27/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

Jennings Aaron Rowe appeals his conviction of failure to return to lawful detention, a Class D felony. He questions whether the evidence was sufficient to prove he failed to return to lawful detention. We affirm. * * *
SULLIVAN, J., and VAIDIK, J., concur.
Jeremy Foster v. State of Indiana (8/27/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Jeremy M. Foster appeals the trial courts revocation of his probation. Foster raises one issue, which we restate as whether the condition of his probation prohibiting him from possessing sexually explicit materials is unreasonably vague. We reverse. * * *

The condition is not sufficiently clear to inform Foster of what conduct would result in his being returned to prison. Consequently, this condition of probation suffers from the same vagueness problem as the conditions in Smith and Fitzgerald. As a result, we conclude that the condition is void for vagueness and that the trial court abused its discretion by revoking Fosters probation. See, e.g., Smith, 779 N.E.2d at 117-118; Fitzgerald, 805 N.E.2d at 866-867. For the foregoing reasons, we reverse the trial courts revocation of Fosters probation. Reversed.
DARDEN, J. and ROBB, J. concur

Infectious Disease of Indianapolis, et al. v. Ruth Toney (8/27/04 IndCtApp) [Medical Malpractice]
Vaidik, Judge
Infectious Disease of Indianapolis, P.S.C. and Douglas H. Webb, M.D. (collectively, Dr. Webb) bring this discretionary interlocutory appeal challenging the denial of Dr. Webbs fourth motion for summary judgment in a medical malpractice suit filed by Ruth Toney. Dr. Webb claims that because Toney has received her full measure of damages from another health care provider and from the Indiana Patients Compensation Fund (the Fund), she is collaterally estopped from collecting additional damages from him. We agree. However, we affirm the trial courts denial of Dr. Webbs summary judgment motion because Toney has not been permitted the opportunity to establish Dr. Webbs liability and, therefore, collateral estoppel does not preclude her from pursuing her claim against him for medical malpracticealbeit knowing that she cannot recover damages from himif she so desires.

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer List for Week Ending August 27, 2004

Here is the Indiana Supreme Court's transfer list for the week ending August 27, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column....

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - 7th Circuit Issues Five Today

Reliance Insur Co v. Raybestos Products (SD Ind., Judge Young)

Before FLAUM, Chief Judge, and DIANE P. WOOD and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Once again, we confront a case in which parts of a complex situation are arguably subject to arbitration, while other parts are not. The district court thought that the arbitration agreements at issue did not encompass one part of the dispute, and thus that judicial proceedings should proceed in parallel to the arbitral proceedings. In our view, however, this construes the agreement to arbitrate too narrowly. We therefore reverse and remand for entry of an order directing the controversy in question to be submitted to arbitration. * * *

We are not unsympathetic to the concerns that motivated the district courts decision. Busy courts do not welcome the idea of duplicative proceedings, whether before several different judicial bodies, or before some courts and some arbitral bodies. But, opposed to that concern is the right of parties to agree to alternative methods of dispute resolution, and the strong message from the Supreme Court that these agreements must be honored. If there is to be a duplicative proceeding exception, it is for Congress to add it to the FAA; it is not for us to create because one party may have put itself in a bad position. Because arbitration is a creature of agreement, parties often find ways to minimize the risk of inconsistent results through contractual provisions that either provide an exception to the duty to arbitrate for multi-party situations, or otherwise to find ways to coordinate duplicative proceedings.

In this case, however, Raybestos must live up to its bargain and arbitrate its claims against USF&G and Westchester. The order of the district court refusing to compel arbitration is REVERSED and the case is REMANDED to the court for entry of such an order.

Thomas, Carl E. v. Guardsmark Inc. (ND Ill.)

Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. On November 16, 2001, Guardsmark, Inc. indefinitely suspended its employee, security officer Carl Thomas, after he suggested in a televised interview that Guardsmark did not adequately screen its employees for prior felony convictions. Almost a year later, Thomas filed suit against Guardsmark, alleging retaliatory discharge in violation of Illinois public policy. After removing to federal district court, Guardsmark successfully moved for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c). Guardsmark argued, and the district court agreed, that Thomas was "effectively discharged" at the time he was suspended, and thus his action was barred by a six-month limitations period found in his Employment Agreement with Guardsmark. For the reasons discussed below, we reverse and remand to the district court for development of the record regarding Thomas's employment status after Guardsmark indefinitely suspended him in November 2001.
K-Mart Corporation v. Simmons, Wilhemina (ND Ill.)

Question of timely filing of bankruptcy claim. Affirmed.

Sternes, Jerry v. Rodriquez, Neftaly (ND Ill.)

Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. Several months prior to Neftaly Rodriguezs trial for murder, the prosecutor filed a motion to disqualify Joseph Brent as one of his lawyers. Brent also represented detective John McMurray in an unrelated real estate deal. The prosecutor told the judge that McMurray was an integral part of the case against Rodriguez because he had participated in the investigation of one of Rodriguezs co-defendants. According to the prosecutor, Brents simultaneous representation of Rodriguez and McMurray created a per se conflict of interest. * * * The court prevented Brent from rendering Rodriguez any further assistance. When trial arrived, however, the prosecutor failed to call McMurray as a witness. Rodriguez was convicted and on appeal argued that Brent had been disqualified improperly.
Biondo, Peter v. City of Chicago (ND Ill.)
Before EASTERBROOK, MANION, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. [This case concerns the City of Chicagos use of race in making promotional decisions. The main opinion concludes ...] Perhaps what we have said will lead the litigants to resolve these remaining issues (and the remaining firefighters claims) amicably rather than slug it out again in the courtroom. We hope so; this dispute is approaching its third decade. The judgments are vacated, and the case is remanded for proceedings consistent with this opinion. [Judge Williams writes a separate opinion, concurring in the result.]

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to Indiana Decisions

Indiana Courts - Where does he go to get his reputation back?

There has been an interesting series of stories in the Evansville Courier&Press this week, involving federal agents and the U.S. Attorney. The lead to Wednesday's story:

Six weeks ago, an Evansville businessman was wrongly arrested by federal agents in a high-profile drug bust that made front-page headlines and the evening news. Federal prosecutors claimed in a sealed indictment that he was part of a drug network that distributed $30 million worth of cocaine, heroin and marijuana in Southern Indiana. They called a news conference, where they released his name as one of 37 defendants charged in what they called the biggest drug bust in the city's history. * * *

On Tuesday, they quietly took it all back, issued a short statement saying charges against Charles Hall had been dropped, and apologized for any harm done to him. "As soon as we realized we made a mistake, we moved to correct it," said Armand McClintock, head of the Indiana office of the federal Drug Enforcement Administration. "The last thing we want to do is arrest an innocent man."

More from later in the story:
According to a statement released by the U.S. attorney's office late Tuesday, federal prosecutor Matt Brookman made an oral motion to dismiss charges against Hall [six weeks ago, before the news conference announcing the indictments]. The motion was granted. But that information apparently didn't make it into the hands of U.S. Attorney Susan Brooks, who had called a news conference to announce the drug bust. * * * Brooks' staff handed out copies of indictments unsealed in court that morning. Hall's name was on the list of defendants charged with felony drug conspiracy charges. * * *

The U.S. attorney's office, which had issued a news release to every major news organization in the area to announce the drug charges, didn't issue a release about the charges being dropped against Hall. But the U.S. attorney did issue a brief statement Tuesday, six weeks after Hall's arrest, after being questioned about the matter by the Courier & Press. The three-sentence statement said charges had been dismissed against Hall. It also said charges have been dismissed against another defendant, Gary Harris of Evansville. * * *

[Armand McClintock, head of the Indiana office of the federal Drug Enforcement Administration], who supervises the DEA agents who arrested Hall, confirmed Hall's story that it was a case of mistaken identity. "He is not the guy we wanted," said McClintock.

McClintock said a DEA case agent apologized twice to Hall, once after his arrest and again the day after his release when he went to talk to Hall about the case. Hall, though, said he didn't interpret the conversation to be an apology. He said he felt threatened by the DEA agent. "He kept saying, 'We're watching you.'"

Yesterday the Courier&Press had this story (both the stories are reported by Maureen Hayden), headlined "Feds regret arrest blunder: U.S. attorney's decision caused embarrassment to innocent people." Some quotes:
The top federal prosecutor in Southern Indiana says she knew an Evansville businessman had been wrongfully arrested during a major drug bust, but failed to keep the media from identifying him as a suspected drug dealer.

U.S. Attorney Susan Brooks said she didn't reveal the information during a news conference called to release details of the drug bust, because she was unprepared to answer any questions about it. It's a decision she says she now regrets. * * *

Because the number of defendants named in the indictments didn't match the number of defendants named in the release, an Evansville Courier & Press reporter contacted Brooks' staff that day to inquire about the discrepancy. The reporter was told that no information would be released about why there was a discrepancy. Nor would federal agents or the assistant federal prosecutor in charge of the drug case answer questions about the case. According to Brooks, the U.S. Justice Department now has a policy, issued by Attorney General John Ashcroft, forbidding agents and low-level prosecutors from talking to the media. On Wednesday, Brooks also said she regrets not following up on the Hall matter by subsequently notifying the media the charges had been dropped. * * *

Both Brooks and Armand McClintock, the head of the federal Drug Enforcement Administration in Indiana, said Hall and Harris were arrested because suspects in the drug-trafficking case had used their names as aliases. For Hall, the July arrest was the second time in a year that he'd been mistakenly arrested and then let go. The first time happened last summer when he was arrested by local drug agents.

After that mix-up, Evansville police entered information into their computer that now notifies police officers that Hall's name and other identifying information was being used as an alias by someone else.

Today the Courier&Press has an editorial that first recaps the events, then continues:
Nobody in law enforcement went out of his way to spread the word that Hall had been exonerated.

Also caught up in the sweep was a Chicago man, Gary Harris. Charges against him were dismissed last week because his name had also been used by drug suspects. This week, Courier & Press staff writer Maureen Hayden set the record straight at the top of Page One of this newspaper. But it wasn't at the behest of any of the law enforcement agencies. A person who thought several weeks of injustice was enough had tipped her off.

We're glad the record is now straight. But we have to ask: Is there some obligation on the part of law officials to let the world know about the unfortunate circumstances that had wrongly ensnared Hall, a father of four, and Harris?

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to Indiana Courts

Law - Kentucky upholds life-support law

The Louisville Courier-Journal reports today:

The Kentucky Supreme Court ruled yesterday that a relative or guardian may decide to end life support for someone who is permanently unconscious even if that person hasn't expressed his wishes through a living will or other means.

The ruling upholds a 1994 law giving certain people the power to make such decisions for others. It is the first ruling on the issue by the state's high court since it upheld the right of a comatose woman to die in 1993.

Here is the Lexington Herald-Leader coverage. Neither paper gives the name of the case, and the Kentucky Supreme Court has not yet posted it.

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to General Law Related

Indiana Decisions - 7th Circuit issues correction

The 7th Circuit yesterday issued an order making an amendment to its ruling in Muhur, Yordanos M. v. Ashcroft, John, reported in this IBL entry (5th case) from Tuesday. The order provides:

The opinion in this case issued on August 24, 2004, is hereby amended as follows. On page 5 of the slip opinion, lines 7-8, the sentence "The immigration laws are immensely complex (perhaps second only in complexity to the law of postconviction remedies) and their application often requires knowledge of foreign cultures unfamiliar to most Americans, as in this case" is deleted and the following substituted in its place: "The immigration laws are complex and their application often requires knowledge of foreign cultures unfamiliar to most Americans, as in this case".

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to Indiana Courts

Indiana Law - School bars girl managers on boys' team

The Louisville Courier-Journal has an AP story today reporting "School bars girl managers on boys' team." Some quotes:

SEYMOUR, Ind. Two girls have been barred from managing a middle school boys' football team because officials worry about both sexes mingling on the team bus. The girls say they might ask the state Board of Education to reinstate them.

Eighth-graders Tori Meneely and Kimberly Lara managed the Seymour Middle School football and basketball teams last season. But this year school officials refused to allow them to help with the football team.

The girls and Tori's mother, Tereca Schryer, a former Seymour High School football team manager, appealed for reinstatement to the Seymour School Board Tuesday. [my emphasis] * * *

"With incidents that happen between students at other schools, I feel like it's a proactive decision," [middle school principal Barbara Bergdoll] said. "From now on, we will have girl managers for girls' sports and boy managers for boy sports."

The girls argued that the ban was a violation of Title IX, which bars sex discrimination in schools.

The girls were not physically participating on the football field, said Seymour Schools Superintendent Robert Schmeilau, so sports managers do not have the same rights as players.

Certainly looks like a step backward!

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to Indiana Law

Law - Grandparent visitation in California

On August 13th I posted this entry about grandparents' rights in Illinois, which also reviewed some earlier entries.

This week the California Supreme Court ruled on the issue, as reported in this story at Law.com. Some quotes:

Grandparents have the right to visit their grandchildren, the California Supreme Court ruled Monday, but only if they can overcome parents' objections.

The 4-3 ruling, considered mostly favorable to grandparents, also held that courts could award visitation over a custodial parent's objection as long as the non-custodial parent supports it.

The decision drew dissents from three justices, who felt the majority went too far in impinging on parents' child-rearing rights, which Justice Ming Chin called "possibly the oldest fundamental liberty interest the high court has recognized and ... among the most basic of civil rights."

"Both the federal and state constitutions establish the right of custodial parents to decide with whom their children will associate," Chin wrote in a concurring and dissenting opinion. "Obviously, court-ordered visitation over a custodial parent's objection infringes on that right."

An AP story reports:
Monday's decision is one of a hodgepodge of conflicting rulings from high courts nationwide, with some favoring the grandparents and noncustodial parents and others siding with the sole custodial parent. The cases were prompted after a 2000 U.S. Supreme Court decision that nullified a Washington state statute that had allowed "any person" to petition for court-ordered visitation rights as long as a court found it in a child's best interest.

The dispute before California's justices concerned a woman who has sole custody of a child, but does not want her former spouse's parents to have court-ordered visitation rights to the child. The father, who lost custody and visitation rights in a divorce battle, wants his parents to have visitation.

Four justices of the Supreme Court ruled that a sole custodial parent - the mother in this case - cannot automatically overrule the wishes of the noncustodial father who wants his parents to have visitation rights with his child. Some of the other seven justices said it was an invasion of privacy for the courts to dictate what the sole custodial parent should do.

The 64-page decision, Butler v. Harris, is available here.

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to General Law Related

Law - Former landowners seek to reclaim property taken by government for WW II training base

"During World War II, Camp Breckinridge [Kentucky] was a training base for more than 40,000 soldiers and a prison for 4,000 Germans. The U.S. government purchased the land and evicted the landowners. Now, the heirs of the previous landowners are fighting a legal battle, to repurchase the land."

"Long wait for justice: 62-year-old Breckinridge land dispute hits new snag," is the headline to this long and very interesting feature by Maureen Hayden from Monday's Evansville Courier&Press.

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to General Law Related

Law - More on judicial plagarism

"3rd Circuit Sees Through 'Ghostwritten' Opinion'" is the title of this lengthy article today at Law.com. Some quotes:

Federal judges must write their own opinions and cannot simply sign an opinion that was "ghostwritten" by lawyers, the 3rd U.S. Circuit Court of Appeals has ruled.

In Bright v. Westmoreland County, a unanimous three-judge panel issued a stiff rebuke to U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania after concluding that defense lawyers had submitted a "proposed opinion" and that Schwab adopted it "nearly verbatim" as his own. * * *

Nygaard found there was "no record evidence which would allow us to conclude that the district court conducted its own independent review, or that the opinion is the product of its own judgment. In fact, the procedure used by the district court casts doubt on the possibility of such a conclusion."

As a result, Nygaard concluded that the 3rd Circuit was forced to remand the case to Schwab with an order requiring that he "engage in an independent judicial review." * * *

Schwab, in response to a call from The Legal Intelligencer, issued a statement that said: "I have carefully reviewed the clear and thoughtful opinion of the Court of Appeals in the Bright case. I appreciate its candor, and will of course make every effort to follow its advice, counsel and directions, in this and all cases."

Here is the 45-page decision of the 3rd circuit.

Here is an earlier (7/16/03) Indiana Law Blog entry on a story about an accusation of judicial plagarism in Miami. (I checked the links in the entry and they are all still active).

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to General Law Related

Environment - Disclosing contingent liabilities under Sarbanes-Oxley

Findlaw.com has an article today titled "Disclosing Contingent Environmental Liabilities: Navigating In A New Environment." The intro:

The Sarbanes-Oxley Act and its implementing regulations are increasing the level of scrutiny given to public companies' disclosure of contingent risks. Environmental issues, however, have not necessarily been at the top of the list. Most of those responsible for designing Sarbanes-Oxley compliance programs are not environmental professionals and may not fully appreciate the challenges inherent in designing a system that will produce reliable environmental disclosure. This article highlights some of the challenges presented for Sarbanes-Oxley compliance in the environmental arena, identifies potential solutions to those challenges and examines some of the consequences that are likely to flow from increased environmental disclosure.

Posted by Marcia Oddi on Friday, August 27, 2004
Posted to Environmental Issues

Thursday, August 26, 2004

Environment - Gibson Generating Plant Multi-Jurisdictional Issues

The is the continuing story of the Gibson Generating Station, located in Owenville, Indiana (Gibson County), across the line from Mt. Carmel, Illinois. The Illinois Attorney General announced August 9th:

Following several dramatic and possibly harmful air pollution incidents that created a hazy blue film over the small town of Mt. Carmel, Attorney General Lisa Madigan and Wabash County States Attorney Terry Kaid today filed a lawsuit against a nearby Indiana coal-fired power plant based on several releases of dangerous emissions. * * *

Madigan and Kaids lawsuit names PSI Energy, Inc., an Indiana corporation, and Cinergy Power Generation Services, LLC, a Delaware corporation, which together own and operate the Gibson Electrical Generating Station. Located on the east side of the Wabash River, the plant is approximately two miles south of Mt. Carmel.

While Madigan and Kaid said Cinergy has been cooperative, they are filing the lawsuit to ensure that if necessary, a court could enforce an agreement on short-term operating conditions; a long-term solution to the operating problems; and the payment of appropriate penalties for violation of Illinois air pollution laws. * * *

Madigan and Kaids lawsuit, filed in Wabash County [Illinois] Circuit Court, seeks to prohibit PSI Energy and Cinergy from committing future violations of the Illinois environmental laws and seeks civil penalties for the violations. Madigan and Kaids suit also seeks to prohibit PSI Energy and Cinergy from operating the faulty stack at Gibson Station until the pollution control technology has been repaired and inspected by the Illinois Environmental Protection Agency (IEPA).

Readers may recall several earlier ILB entries on this issue, including: 7/23/04 (3rd item) and 8/12/04.

Yesterday the matter went to court. The Princeton Daily Clarion reports today:

MOUNT CARMEL, Ill.-A set of voluntary protocols developed to mitigate the effect of pollution control equipment testing at Gibson Generating Station is enforceable in court with fines, if necessary.

Circuit Judge David Frankland Wednesday granted the Illinois Attorney General's request for a temporary injunction against Public Service Indiana, parent company of the Gibson County coal-fired power plant.

The order uses the reporting and testing protocols developed among Cinergy, USEPA, IEPA, Indiana Department of Environmental Management and Mt. Carmel officials in recent weeks as a safeguard until the power plant finds a way to keep one of the selective catalytic reduction (SCR) units from emitting sulfuric acid into the atmosphere.

The protocols were voluntarily negotiated with those representatives after the Illinois Attorney General threatened to sue the company for polluting Illinois air. Shortly after the informal agreement, which Cinergy officials sought to to formalize among the agencies, the suit was filed in Wabash Circuit Court. * * *

"The informal agreement (protocol document) recognizes the problem as a serious hazard to public health and welfare," said the judge. "To PSI's credit, they recognized the problem and attempted to take steps to solve it," he told lawyers. "The protocols seem to be working. But there needs to be an assurance that the protocol will be consistently followed....This is not a trial on the merits, it is a preliminary injunction." * * *

Attorneys for the power plant initially argued notice of the suit wasn't properly served, and also argued that the IEPA pollution law cannot override the federal Clean Air Act, which they said requires the pollution control work that caused the sulfuric acid side-effect, but that motion was denied. "IEPA cannot regulate an Indiana facility by litigation," argued attorney Robert Olian. Olian also asked the judge to enjoin USEPA and IDEM in the case to prevent the company from being caught in conflicting views of what ought to be done, but the motion was denied.

The Mt. Carmel Illinois Daily Republican Register reports:
After nearly three hours of arguments and testimony in Wabash County Circuit Court, Circuit Judge David Frankland Wednesday evening granted the Illinois Attorney General and Wabash County State's Attorney a preliminary injunction, enforcing an Aug. 2 operating agreement for PSI/Cinergy's Gibson Generating Station. Known as the Protocol Agreement, that document outlined measures Gibson Station would follow for operating selective catalytic reduction (SCR) equipment at Units 4 and 5 of the coal-fired power plant, located about two miles from Mt. Carmel. * * *

The defense made the argument Wednesday that the company had invested some $240 million on SCR units, money spent to comply with federal Clean Air regulations mandating removal of nitrogen oxide, or NOX, from the air. Defense Attorney Robert Olian called the investment "not insubstantial," and pointed out that two other SCRs operating at the station had not been producing the sulfuric acid mist. Olian pointed to the federal Clean Air Act specifically, saying it was designed to pre-empt any "multiple regulatory legislation" the company could face as it attempted to comply with federal, Indiana and Illinois law. * * *

Following Wednesday's decision, Cinergy News Media Relations Manager, Corporate Communications, Angeline Protogere told the Daily Republican Register, "We continue to believe that the court is not the right venue for addressing this issue. We had made a lot of progress when voluntarily agreement had been reached by all the parties," she said, adding "...nothing could have happened in this court today that would change how we operate the station." The Cinergy spokesperson assured, "We will continue to follow the Protocol (Agreement)."

Posted by Marcia Oddi on Thursday, August 26, 2004
Posted to Environmental Issues

Indiana Decisions - Two from Supreme Court today

Lisa Marie Pedraza v. Brian Gasperson (8/26/04 IndSCt) [Family Law]
Dickson, Justice

This appeal challenges the trial court's dismissal of a paternity action for lack of personal jurisdiction over the alleged father. In a memorandum decision, the Court of Appeals reversed in part and remanded. We granted transfer and now affirm the trial court.

The mother, Lisa Marie Pedraza, filed a petition to establish paternity, child support, and parenting time, alleging Brian Gasperson was the biological father of her infant child, A.B. The alleged father filed a motion to dismiss, alleging lack of in personam jurisdiction. In its order granting the motion, the trial court summarized the relevant facts as follows:

The facts are without dispute. Mr. Gasperson has never had contact with the State of Indiana. [A.B.] was not conceived here nor was she born here. She does, however, live here now and has lived here for more than six months. Mr. Gasperson has never visited nor lived in Indiana.
The trial court held that, although it had subject matter jurisdiction to decide paternity cases, and the authority to hear this case because Indiana was A.B.'s home state under the Uniform Child Custody Jurisdiction Law ("UCCJL"), Ind. Code 31-17-3-3, it did not have personal j urisdiction over the alleged father, a non-resident of this state, because of the absence of sufficient minimal contacts required by the Due Process Clause of the Fourteenth Amendment and Indiana Trial Rule 4.4. * * *

In the present case, the trial court concluded:

Before an Indiana court can exercise jurisdiction of a nonresident, a plaintiff must satisfy both the long-arm statute, Ind. Trial Rule 4.4 and due process. The Due Process Clause of the Fourteenth Amendment requires that certain minimum contacts exist between a nonresident defendant and a plaintiff before personal jurisdiction is proper. Although even merely engaging in sexual intercourse leading to conception is a sufficient contact in a paternity suit to confer personal jurisdiction under T.R. 4.4 and due process, a contact even this minimal is lacking here. For this reason, then, Respondent's motion to
dismiss is granted.
The trial court was correct. We affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
Donald Davis v. State of Indiana (8/26/04 IndSCt) [Criminal Law & Procedure]
Shepard, Chief Justice
Appellant Donald Davis assaulted his former girlfriend, and the court found him guilty of criminal recklessness involving serious bodily injury, a class D felony. The question on appeal is whether a lacerated lip and a broken pinky finger constitute serious bodily injury. We hold they do not. * * *

As with all matters of degree, it is difficult to describe in words a bright line between what is bodily injury and what is serious bodily injury. We conclude that even taken altogether, a lacerated lip, abrasion to the knee, and a broken pinky fall below the line.

Accordingly, the evidence was insufficient to sustain the finding of criminal recklessness as a class D felony. We reverse and remand for entry of judgment for the crime of recklessness as a class B misdemeanor.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Posted by Marcia Oddi on Thursday, August 26, 2004
Posted to Indiana Decisions

Indiana Decisions - Three today from Court of Appeals, One from Tax Court

Paul Howard & Paul's Truck and Auto Repair v. Stephen Dravet, et al (8/26/04 IndCtApp) [Procedure]
Sharpnack, Judge

In this interlocutory appeal, Paul Howard (Howard) appeals the trial courts grant of a motion to quash a request for production filed by Great West Casualty Company (Great West), a non-party to the litigation. Howard raises one issue, which we restate as whether the trial court abused its discretion by granting the motion to quash the request for production based upon the attorney-client privilege and the work product doctrine. We reverse and remand. * * *

First, Howard argues that the trial court abused its discretion by instituting a blanket privilege over the documents in the claim file. Blanket claims of privilege are not favored. Petersen v. U.S. Reduction Co., 547 N.E.2d 860, 862 (Ind. Ct. App. 1989). The party seeking to avoid discovery has the burden of establishing the essential elements of the privilege being invoked. Id. The claim of privilege must be made and sustained on a document-by-document basis. * * * Thus, Great West had the burden of establishing privilege as to each document requested by Howard. * * *

Here, the evaluation letter, which contained legal advice to Great West from its counsel, is protected by the attorney-client privilege because it involved confidential communications. Although the evaluation letter was privileged under the attorney-client privilege, the submission of the evaluation letter to the trial court for in camera review was insufficient to establish that any other documents in the claim file were privileged. The evaluation letter does not describe or summarize any other document in the claim file and says nothing about the applicability of the work product doctrine or the attorney-client privilege to other documents in the claim file. * * * In this case, Great West was required to assert the privilege on a document-by-document basis of the contents of the claim file. Therefore, the trial court abused its discretion by granting Great Wests motion to quash based solely upon its in camera review of the evaluation letter. * * *

The vital resource of the trial courts time should be spent on discovery issues rarely and sparingly. It is the responsibility of counsel to avoid, by cooperative effort, imposing on the trial courts for resolution of discovery matters. In those instances when the discovery matters cannot be resolved by the sincere efforts of counsel, the issues presented to the court should be sharply focused in fact, law, and number, so that the trial courts time required is minimal and well spent.

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

Russell W. Carter v. Estate of Everett D. Davis (8/26/04 IndCtApp) [Estates]
Barnes, Judge
Russell Carter appeals the trial courts denial of his motion to dismiss the administration of Everett Davis estate (the Estate) for lack of subject matter jurisdiction. We affirm. * * *

This is not the first time this court has been asked to consider the legal domicile of a snowbird who split his time between Indiana and Florida and eventually died in Florida * * *

Here, we are not faced with the question of the situs of a completely ephemeral property interest in a right of publicity that had no physical connection with any geographic location. Instead, there is no question here that Davis deposited large sums of money with a bank located in Clinton County and, therefore, evidence of the banks indebtedness to Davis is also located in Clinton County and that debt is collectible in Clinton County. * * *

Here, Farmers Bank, as Davis debtor and subject to an action for recovery of the funds on deposit there, was located in Clinton County. Thus, jurisdiction over the administration of Davis estate also properly rested in Clinton County because he possessed property legally located there at the time of his death.

Conclusion. The trial courts denial of Carters motion to dismiss Davis probate proceedings for lack of subject matter jurisdiction is supported either by evidence that Davis was still domiciled in Clinton County at the time of his death, or that he possessed property located in Clinton County at that time. We affirm. Affirmed.
NAJAM, J., and SULLIVAN, J., concur.

Danielle L. Hulfachor v. State of Indiana (8/26/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Danielle Hulfachor appeals the ten-year sentence imposed upon her conviction for Neglect of a Dependent, See footnote a class B felony. Specifically, she argues that the trial court improperly considered evidence outside the record, the trial court did not appropriately weigh the aggravators and mitigators, and her sentence was inappropriate in light of the nature of the offense and the character of the offender. Finding that Hulfacher waived her argument regarding whether the trial court erred in considering evidence outside the record and that her sentence is appropriate, we affirm. * * *

On August 21, 2002, the State charged Hulfachor with battery and aggravated battery. On the day that was set for trial, Hulfachor pleaded guilty to neglect of a dependent. In exchange, the State dismissed the original counts of battery and aggravated battery. At the sentencing hearing, the trial court noted: "I asked the lawyers if they could answer some of my questions which we communicated through e-mail and long story short I was able to go to Juvenile and review the CHINS file in Judge Paynes chambers where I had access to among other things the parenting assessment that was done by the Childrens Bureau ..." * * *

Evidence Outside the Record. Hulfachor first argues that the trial court improperly considered evidence outside the record in determining her sentence. To the contrary, the State contends that Hulfachor waived consideration of this issue by inviting the error. We agree with the State. * * *

Hulfachor did not object when the trial court made its statements regarding the additional information it obtained from the CHINS file from another court. In fact, it appears that Hulfachors attorney helped the trial court obtain this information. Hulfachors attorney agreed to the introduction of this evidence when she participated in unrecorded communications with the trial court over the Internet. Thus, Hulfachor invited the error, and it is waived for our review. Nevertheless, we strongly caution trial courts against looking outside the record for evidence in a sentencing hearing. Obviously, such a practice deprives a defendant of the opportunity to review the information and refute its accuracy. By not placing the information in the record, the trial court created a risk that sentencing would be based on inaccurate or irrelevant information. Therefore, trial courts should look only to evidence properly placed in the record when making sentencing determinations. * * *

In light of the above conclusions, we find that Hulfachers sentence was appropriate and the trial court did not err in its consideration of aggravators and mitigators. We also find that Hulfachor waived her right to argue that the trial court considered evidence outside the record, but strongly admonish trial courts not to do so in the future. The judgment of the trial court is affirmed.
KIRSCH, C.J., and ROBB, J., concur.

Northeast Indiana Chevrolet Advertising Assoc. v. Indiana Dept. of State Revenue (8/25/04 IndTaxCt - NFP) [Gross Income Tax]

"The sole issue for the Court to decide is whether the [Northeast Indiana Chevrolet Dealers Advertising Association, Inc.] received funds from General Motors Corporation (GMC) in an agency capacity."

Posted by Marcia Oddi on Thursday, August 26, 2004
Posted to Indiana Decisions

Indiana Decisions - One today from 7th Circuit

Diallo, Mamadou v. Ashcroft, John D. (On Petition to Review an Order of the Board of Immigration Appeals)

Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Mamadou Diallo, a native citizen of Mauritania, requested that the Immigration and Naturalization Service (INS) grant him asylum. The Agency refused, reasoning that Diallo had not been persecuted in Mauritania, did not have a well-founded fear of future persecution there, and had firmly resettled in Senegal prior to his arrival in the United States. Because the Agency (1) ignored its own regulations regarding the proper factors to consider in a firm resettlement analysis, (2) failed to make a credibility determination, and (3) failed to support its decision on fear of future prosecution with reasonable or substantial evidence, we must remand for further proceedings consistent with this opinion. * * *

In sum, we reverse the finding of the Agency that Diallo was firmly resettled in Senegal and we remand to the Department of Homeland Security for a credibility determination and for subsequent proceedings to determine whether Diallo suffered past persecution or had a well-founded fear of future persecution entitling him to asylum in this country. In view of our criticism of the immigration judge in this matter, we urge the Department of Homeland Security to refer this case to a different immigration judge on remand.

Posted by Marcia Oddi on Thursday, August 26, 2004
Posted to Indiana Decisions

Law - Chief Judge William Young, USDC, District of Mass., on C-Span this morning

Chief Judge William Young, USDC, District of Mass., appeared this morning on C-Span's Washington Journal, from 8:30 to 9:00 a.m., Indianapolis (EST), explaining Blakely v. Washington and answering call-in questions. His explanations and answers were thoughtful and interesting, and surpassed the questions. You can catch the program from the C-Span website. (Go here, then click on the ARROW for the Thursday, August 26th entry titled "Chief Judge William Young.")

Recall that Judge Young declared the U.S. sentencing guidlines "unconstitutional as applied" one week before the Supreme Court's ruling in Blakely, in a 174-page ruling dated 6/18/04, USA v. Green. See a related 6/23/04 ILB entry here.

Posted by Marcia Oddi on Thursday, August 26, 2004
Posted to General Law Related

Wednesday, August 25, 2004

Indiana Decisions - Three from Supreme Court Today

Larry J. Bertoch v. NBD Corporation and U.S. Security, Inc. (8/25/04 IndSCt) [Worker's Compensation]
Boehm, Justice

Larry Bertoch suffered a fatal heart attack while working as a security guard in a building where a fire had occurred. We hold that his death is compensable under the Indiana Workers Compensation Act.

On February 1, 1994, while responding to a fire alarm at the NBD building, members of the Gary Fire Department found Larry Bertochs body on the landing between the tenth and eleventh floors. According to the Fire Department report the fire department found evidence on the twelfth floor of a fire in the elevator-switching panel that had self-extinguished. The fire pull station was engaged and a fire extinguisher was displaced, but had not been used.

Asserting that Bertochs death resulted from his response to the fire, Bertochs widow filed an Application for Adjustment of Claim with the Workers Compensation Board. A Single Member of the Workers Compensation Board heard the claim and awarded Bertoch full death benefits, finding that the death occurred as a result of Bertochs response to the alarm. This produced a psychological shock, which required unusual physical exertion beyond his routine employment. NBD requested review by the Full Board and the Board reversed the decision of the Single Hearing Member, finding that the timing of Bertochs heart attack was coincidence. Bertoch appealed, and the Court of Appeals remanded the case to the Full Board for specific findings supporting its conclusion. The Full Board issued additional findings of fact and again concluded that Bertochs death did not arise out of his employment. Bertoch appealed and the Court of Appeals affirmed the Board in an unpublished decision. We grant transfer and reverse the Board. * * *

A reviewing court will not disturb the findings of fact of the Workers Compensation Board if the findings are supported by substantial evidence. Outlaw v. Erbrich Prods., 777 N.E.2d 14, 26 (Ind. Ct. App. 2002). In this case, we hold that the evidence does lead to a result contrary to the Boards findings. Bertochs doctors statement that stress, such as a fire, could be fatal was supplemented by the coroners report and the death certificate both attributing the death to Bertochs actions in response to the fire. His expected mortality rate in the course of the entire year was twenty percent. He died in the stairwell and was alone at the time. The fire extinguisher was dislodged and the alarm pulled. Although Bertoch suffered from a severe preexisting condition, the expert medical opinions and the circumstances surrounding his death are compelling evidence that the fire and his attempted response to it aggravated his condition and ultimately contributed to his fatal heart attack. We conclude that the Boards finding in this case that Bertochs death did not arise out of and in the course of his employment is not supported by substantial evidence. Bertochs claim is therefore compensable.

Conclusion. The decision of the Board is reversed. This case is remanded to the Board with instructions to affirm the decision of the Single Hearing Member.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.

Global Construction, Inc. v. Daniel T. March (8/25/04 IndSCt) [Worker's Compensation]
Boehm, Justice
While leaving the foundry where he was assigned by his employer Daniel March was injured by strikers. We hold that the Workers Compensation Act covers this injury. * * *

I. Injuries in the Course of Employment. * * * Here, there is no doubt that Marchs injuries were suffered specifically because of his employment at the plant under strike as he left the plant gates. The injury was incurred in a chain of events originating in the course of employment. This is sufficient to support coverage under the workers compensation statute. * * * March acted in response to the actions of the strikers, and the Boards conclusion that he was injured in the course of employment is a reasonable inference from the evidence before it.

II. Injuries Arising Out of Employment. To arise out of employment and therefore be compensable, there must be a causal connection between the injury and the workers employment. * * * There is no doubt that the blows March suffered were the cause of his injuries. The issue is whether the beating was received in the course of employment. For the reasons given in Part I, we conclude that it was. Insofar as this argument is a separate contention as to arising from, as long as a causal connection exists between the injury and the persons employment, an employee may still recover for an injury sustained while performing personal acts. Prater v. Ind. Briquetting Corp., 253 Ind. 83, 88, 251 N.E.2d 810, 812 (1969). The same chain of events that places his injuries in the course of his employment also establishes that his injuries arose from his employment. Indeed, it seems obvious that March was struck because of his employment, and if he were a passing motorist rather than an employee exiting a plant under strike his injuries would never have been sustained.

In sum, the Workers Compensation Board found that Marchs injury arose out of and in the course of his employment. The evidence does not lead clearly and inescapably to the opposite conclusion.

Conclusion. The decision of the Workers Compensation Board is affirmed.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.

Donald Knoy v. Joe W. & Janice Cary (8/25/04 IndSCt) [Worker's Compensation]
Boehm, Justice
Joseph Cary was injured when a tractor driven by his coworker, Donald Knoy, malfunctioned during an after-hours community service project sponsored by his employer, Gemtron Corporation. We hold that the Indiana Workers Compensation Act covers this injury.

Cary and Knoy worked for Gemtron Corporation, a Vincennes manufacturer of tempered glass shelving for refrigerators and other appliances. Gemtron had a customer oriented master plan, one of the goals of which was to participate with applicable local environmental groups or activities. Seemingly in furtherance of this goal, Gemtron sponsored a cleanup project at a Vincennes city park. Notice of the project was posted on a company bulletin board inviting employees to participate. The company sought to publicize the event in the local newspaper and supplied participating employees with work gloves, food, and beverages. Knoy supplied a tractor for use in the project and Gemtron provided a chain for use with the tractor in removing debris from a riverbank. Cary was injured during the cleanup activity, and alleges his injury resulted from Knoys negligent operation of the tractor.

Cary filed suit against Knoy in Knox Superior Court. Knoy moved to dismiss, arguing that the trial court lacked subject matter jurisdiction because Carys exclusive remedy was under the Workers Compensation Act. The trial court denied the motion but certified the order for interlocutory appeal, and the Court of Appeals affirmed. This Court granted transfer. * * *

In the early days of workers compensation, injuries sustained during after-hours work activities were generally not compensable. * * *

Gemtrons interest in fostering goodwill in the community was calculated to confer a business benefit. Even if Gemtrons motives in conceiving and implementing the project were largely altruistic and certainly laudable, it was also in Gemtrons business interest to involve itself in community projects. * * *

As Gemtrons efforts to publicize the cleanup demonstrate, an employers public image is a significant business consideration. Gemtrons sponsorship of and participation in the project served its business interests by enhancing its image, fostering a good relationship with the local community, and team building among its employees. The reputation of a business as a good citizen of the community is important in obtaining and retaining employees as well as in customer relations and in some cases governmental relations. Finally, we certainly do not wish to discourage activities such as Gemtrons by adding to the cost. However, the effect of finding workers compensation to cover such an activity is sometimes to the employers benefit by denying a tort recovery and sometimes to its detriment by awarding workers compensation benefits. The workers compensation law is to be construed broadly. [citations omitted] If that construction is thought to inhibit corporate participation in charitable and community events unduly, that balance is one for the legislature to adjust.

Conclusion. The judgment of the trial court is reversed. This case is remanded with instructions to dismiss the complaint.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Indiana Decisions

Indiana Decsions - One from Court of Appeals Today

Rheann E. Kelly v. State of Indiana (7/14/04 IndCtApp - Initially was NFP) [Criminal Law & Procedure]
Friedlander, Judge

Rheann Kelly appeals her convictions for Felony Murder, a felony, Criminal Confinement, a class D felony, Criminal Gang Activity, a class D felony, and Assisting a Criminal, a class D felony. Kelly presents the following issues consolidated for review: Was the evidence sufficient to support Kellys convictions for felony murder, criminal confinement, criminal gang activity, and assisting a criminal? Did the trial court err in refusing Kellys jury instructions regarding felony murder and criminal confinement? We affirm in part, reverse in part, and remand. * * *

KIRSCH, C.J., and BARNES, J., concur.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit issues five decisions today

USA v. Bradley, Jonathan (ND Ind., Judge Sharp)

Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Jonathan Bradley was indicted for one count of possession of over five grams of cocaine base with intent to distribute in violation of 21 U.S.C. 841(a)(1), and one count of use and carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c). Mr. Bradley pleaded guilty to both offenses but later moved to withdraw the pleas. The district court denied the motion to withdraw the pleas, and Mr. Bradley timely appealed. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand the case for proceedings consistent with this opinion. * * *

Misunderstanding of the nature of the chargeshared by all participants in this change-of-plea hearingis not harmless error. Indeed, the Government does not attempt to defend the validity of the plea in light of this misunderstanding. Given this fundamental misapprehension, Mr. Bradleys guilty plea was not made knowingly and intelligently. * * *

Our review of the record of the plea colloquy leads to the conclusion that no one understood an essential element of the crime with which Mr. Bradley was charged, namely, the specific drug trafficking predicate offense. Consequently, Mr. Bradley has shown a fair and just reason for withdrawal of his plea to the 924(c) offense. * * *

Moreover, Mr. Bradley entered into the plea agreement as a whole, pleading guilty to both counts in exchange for certain promises from the Government. For this reason, Mr. Bradley argues, and the Government concedes, that the defect inherent in the 18 U.S.C. 924(c) plea taints the guilty plea to the 21 U.S.C. 841(a)(1) offense as well. We reach the same conclusion. * * *

Thus, Mr. Bradley is entitled to withdraw his plea to the 841(a)(1) offense as well as to the 924(c) offense.

Conclusion. For the foregoing reasons, the judgment of the district court is vacated and the case is remanded for proceedings consistent with this opinion. VACATED and REMANDED

Barnett, Joanne v. Barnhart, Jo Anne, Comm. Soc.Sec. (ND Ind., Judge Sharp)
Before POSNER, ROVNER, and DIANE P. WOOD, Circuit Judges.
ROVNER, Circuit Judge. Joanne Barnett suffers from nonconvulsive epileptic seizures and seeks disability insurance benefits under 42 U.S.C. 423(a)(1). An administrative law judge (ALJ) concluded that her condition is not severe enough to be presumptively disabling, and that even with the condition, she is not disabled because she can still perform a substantial number of jobs in the local economy. The Appeals Council denied review, rendering the ALJs decision the final decision of the Commissioner of Social Security. 20 C.F.R. 404.981. Barnett then sought review in the district court, 42 U.S.C. 405(g), without success. Because we conclude that the ALJ made significant errors in finding that Barnett is not presumptively disabled, we reverse the judgment of the district court and remand for further proceedings. * * *

Ultimately, though, even apart from the ALJs misapprehension of the evidence, we would conclude that his two sentence consideration of the Listing of Impairments is inadequate and warrants remand. [cites omitted] All that the ALJ ever said is that he disbelieved Barnetts testimony concerning the number of seizures she was experiencing; he never affirmatively determined how many seizures he believed Barnett actually experienced. And, thus, we cannot discern if the ALJ ever considered whether Barnetts impairment equals Listing 11.03 despite her assumed lack of credibility. Moreover, as is evident from the perfunctory discussion of the listing, the ALJ never consulted a medical expert regarding whether the listing was equaled. Whether a claimants impairment equals a listing is a medical judgment, and an ALJ must consider an experts opinion on the issue. * * *

Finally, we cannot discern from the record whether there are truly any jobs in the economy for a person suffering seizures on the level shown by the medical record here. Common sense causes us to question the validity of a finding that a woman suffering multiple seizures in a single day could be employed as a cashier, for example.

CONCLUSION. The judgment of the district court is REVERSED, and the case is REMANDED to the Social Security Administration for further proceedings consistent with this opinion.

USA v. Whitlow, Gary T. (SD Ill.)
Before RIPPLE, MANION and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. A jury convicted Gary T. Whitlow of ten counts of possessing automatic weapons in violation of 18 U.S.C. 922(o). Mr. Whitlow challenges the district courts admission of certain evidence and also challenges the sufficiency of the evidence with respect to his conviction on counts seven through ten. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Gil, Diego v. Reed, James (WD Wis.)
Before RIPPLE, ROVNER and DIANE P. WOOD, Circuit Judges.
ROVNER, Circuit Judge. Diego Gil, a federal prisoner, sued a prison doctor, a physicians assistant and the United States for negligence, malpractice and deliberate indifference to his serious medical needs in violation of his Eighth Amendment rights. The district court declined his request for the appointment of counsel to assist him in his claims and subsequently granted summary judgment in favor of the defendants on all claims. We reverse in part and vacate and remand in part. * * *

In sum, we reverse the district courts denial of the motion for appointment of counsel. We vacate the courts judgment in favor of the defendants and remand for proceedings consistent with this opinion.

Schadel, Douglas v. IA Interstate RR (ND Ill.)
Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Complex questions relating to such issues as claim reduction, the availability of contribution and indemnity in a case governed by the Federal Employers Liability Act (FELA), and the rules of joint and several liability confront us in this case. Specifically, we must decide whether a non-settling railroad should be held liable for all damages suffered by its employee, reduced by an amount attributable to the employees comparative negligence and a settlement with a third party, or alternatively, if the railroad should be responsible only for its proportionate share of damages, taking into account the comparative fault of the employee and that of a settling third party defendant. The district court allowed the jury to find the total damages suffered by the plaintiff, without regard to the settlement; it then reduced those damages by 50%, the amount representing the plaintiffs negligence; and finally, using an Illinois standard, it applied a set-off against the balance owed by the railroad. While our reasons are not identical to those offered by the district court, we conclude that the result was correct, and we therefore affirm the judgment.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Indiana Decisions

Indiana courts - Two interesting Indiana-based cyberlaw cases today

"Outcome of 'cyber-squatting' case remains secret for now" is the headline to this story by Maureen Hayden in the Evansville Courier&Press today. Some quotes:

Back in April, when Evansville's largest real estate company accused an aggressive competitor of pirating its Internet domain, it launched the first federal "cyber-squatting" lawsuit in the state. The case attracted attention, in part because the law applied in the case - the Anticyberpiracy Consumer Protection Act - is only a few years old and not widely known.

But how the case has turned out is a secret, at least for now. Key documents in the case, including a contested settlement agreement, have been sealed at the request of the defendant, Evansville Realtor Janice Miller. She was accused in the suit of "squatting" on the Internet domain of FC Tucker Emge Realty Inc., with the intent of diverting her competitor's customers to her Web site.

Miller's attorneys contend that if the public found out some details of the case, Miller and her company, ERA First Advantage Realty, would suffer "irreparable" harm. But FC Tucker Emge Realty's attorney has argued the public has a right to know those details, and also contends that no settlement agreement was ever finalized. The dispute has prompted the appointment of a new judge in the case, and may even lead to public disclosure of details of the cyber-squatting claim.

Read the entire story, which concludes: "Now the case moves on to U.S. Magistrate Sue Shields of Indianapolis. According to the court docket, Shields will have to decide whether an agreement was ever reached, and if so, whether it should remain secret, and how the agreement will be enforced."

An April 10, 2004 Indiana Law Blog entry on this real estate company case is accessible here.

And for the second Indiana-based cyberlaw dispute, the headline of this South Bend Tribune story today is: "Music company claims cyberpiracy: Federal suit says ex-employees took over Web domain to offer porn." The story begins:

SOUTH BEND -- A local musical instrument dealer has filed a federal suit claiming two former employees acquired its Web domain and started an interactive pornographic site there. The suit seeks a permanent injunction and up to $100,000 in damages, saying the actions are causing injury by tarnishing a retail outlet associated with the store.

The suit was filed last week by Dennis Bamber Inc., doing business as The Woodwind & Brasswind, which is on Technology Drive. Defendants are Richard and Stephen Zapf, and a company they purportedly own, Zinc Properties of Cherry Hill, N.J. The Zapfs formerly worked for the plaintiff. They were terminated in June.

The plaintiff, DBI, also wants its old domain back. (The Tribune has chosen not to publish the address.)

I did a Google search for "Woodwind & Brasswind" and reached what must be the company's new domain name, www.wwbw.com.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Indiana Courts

Law - More on "In the Jury Room"

I watched the third episode of In the Jury Room last evening, after recommending it in this entry yesterday, and thought it was outstanding.

As it turns out, the fourth episode is airing tonight:

The State of Arizona v. Wendy Sue Anderson
Driving in her car one evening, Wendy Anderson was making a turn when she crashed into a motorcycle carrying a father and son. The father was badly injured, but survived. His 18-year-old son did not. Anderson, a single mom with no criminal record, had been drinking that night, but tests also showed that the motorcycle riders had evidence of marijuana in their systems. Public Defender Suzanne Crawford will argue that even though Anderson was intoxicated, she was not at fault for the accident. Prosecutor Mark Diebolt must convince the jurors that the victim is not on trial in this case, and the crash was entirely Anderson's fault. The jury will have to decide if this was a tragic accident or manslaughter.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to General Law Related

Indiana Courts - Fetus-rights case to be heard in IU classroom

"Fetus-rights case to be heard in IU classroom" is the headline to this story today by Maureen Hayden in the Evansville Courier&Press. Some quotes:

Every year, the Indiana Court of Appeals selects one compelling case to go "on the road" to Indiana University's Bloomington campus so law students can witness justice in action.

This year, the justices have picked an Evansville case [Brittany Horn et al vs. Kristi L. Hendrickson, et al] that deals with an emotionally charged and legally complex issue: That is, if a fetus is killed in an accident, was it ever really a child under Indiana law? Lawyers with two Evansville law firms will be arguing that issue Nov. 18, when the state's appellate court sets up shop in a classroom in Bloomington to hear what some are calling a "fetus rights" case. * * *

The oral arguments will deal with only one component of a complex lawsuit that arises from a traffic accident that occurred in July 2001. Evansville resident Brittany Horn, who was six months pregnant, was injured in the two-car accident. Horn survived, but the fetus, whom she already had named Libby Ann, died. Horn held a funeral for the fetus and buried her in a child's casket. Because there were questions about who caused the accident, Horn found herself involved in a legal dispute over who would pay for the cost of the burial, the funeral and other expenses associated with the death.

The first issue to decide, the story continues, is "does Horn's 6-month-old fetus fit the definition of 'child' under Indiana's wrongful death laws." The story makes reference to a Kentucky Supreme Court decision from June holding that a "viable fetus" is considered a person. Access the Indiana Law Blog entry on the Kentucky case and a link to the Kentucky opinion, Commonwealth of Kentucky v. Morris, here.

Some other interesting ILB entries from last year include this one from Oct. 9. 2003. See in particular the quotes from the 2002 Indiana Supreme Court decision in Bolin v. Wingart ("In a case of first impression under Indianas Child Wrongful Death Statute, we address the question whether an eight- to ten-week-old fetus fits the definition of 'child.' We conclude that it does not.").

Also on 9/21/03 the ILB had an entry beginning "A suit filed in federal district court here September 10 'accuses the government and Prudential [Life] of breach of contract for refusing to pay a $10,000 claim Warnock filed after his son, Joshua, was stillborn on April 14, 2002.'" [Unfortunately I can't link directly to this entry right now, but will after a forthcoming ILB upgrade.]

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Indiana Courts

Environment - Stories today

Stormwater. The Muncie StarPress reported here yesterday, in a story headlined "Storm water cleanup plan deadline nearing":

MUNCIE - Delaware County Commissioners, two of whom are lame ducks, are hoping to extend a Jan. 1 deadline to submit a storm-water quality management plan to state officials. In the meantime, the commissioners have stopped working on the plan.

The plan to reduce pollution in storm water carried by roads, curbs, gutters, ditches, drains and sewers could cost homeowners at least $1 or $2 a month. Businesses would likely pay more.

"We have a plan as to how we think we'd like to do it, but there isn't any use us running out there headed in one direction if the county is going to go in another direction," said Mike Rost, administrator of the Muncie Sanitary District. "So the problem we've been having is, commissioners will not make a decision." * * *

Their consultant, Donald Larson, of Commonwealth Engineers, Indianapolis, did attend the meeting. He said commissioners did not want to make a major decision for the new commissioners who will be taking office Jan. 1, so they have asked the Indiana Department of Environmental Management for a deadline extension until April 1 to submit the plan.

What if the extension is denied? "Then we'll have to go ahead and do something," St. Myer said in an interview.

Mercury. The Indianapolis Star reports today that:
WASHINGTON -- Indiana issued more warnings about eating fish caught in state waters last year than every other state but Minnesota. Indiana put out 243 advisories that people should limit or avoid eating fish caught in its rivers. Minnesota was No. 1, with 1,114 warnings about fish from its lakes; Michigan was third with 171 warnings about its lakes. Six other states issued more than 100 warnings. Only Alaska and Wyoming issued no advisories. * * *

The number of advisories nationwide rose to 3,094 from 2,814 in 2002, according to figures released Tuesday. [US EPA administrator] Leavitt said the increase was due to more monitoring, not more pollution.

Indiana officials agreed. The numbers suggest an increase in pollutants in the rivers, but "mercury emissions are actually going down," said Amy Hartsock, a spokeswoman for the Indiana Department of Environmental Management. "Monitoring is getting better."

Indiana has been more open about its pollution problems than many other states, said Tom Neltner, who heads Improving Kids' Environment, an Indianapolis-based environmental group. "Monitoring is better, and they are more honest than most states," Neltner said. However, he said, the state has done a poor job of communicating the dangers of mercury in fish.

Cleanup. "EPA cleanup almost complete: Effort shows how fire at South Bend Stamping could have been worse," is the headline to this story today in the South Bend Tribune, complete with this great photo.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Environmental Issues

Indiana Law - Update on Flag issues again at Muncie campground

Updating yesterday's entry, today the Muncie Star-Press reports "Canan does about-face on American flag ban." Some quotes:

MUNCIE - Admitting he made a mistake, Mayor Dan Canan on Tuesday rescinded a ban on flying American and MIA/POW flags at Prairie Creek Reservoir campsites. * * *

The complete ban, an advised defense of a lawsuit filed by the Indiana Civil Liberties Union over the original ban of Confederate flags and sports banners, set off a storm of criticism and controversy as well as a media frenzy with Fox News, CNN and other networks running national stories about it.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Indiana Law

Indiana Decisions - More on court-ordered East Chicago mayorial election

The Gary Post-Tribune reports today:

EAST CHICAGO All eyes are on the mayors office as two court decisions issued within less than two hours of each other Tuesday cleared the way for an Oct. 26 special election in East Chicago.

The Indiana Supreme Court followed up on its Aug. 6 ruling that threw out the results of the 2003 Democratic mayoral primary [Pabey v. Pastrick] by denying a petition by Mayor Robert Pastrick to have the high court rehear the case. The court, in a 3-to-2 vote, had sided with Special Judge Steven King who found evidence of widespread corruption in the mayoral primary and ordered him to set a new election as soon as their ruling became final.

[Judge] King ruled quickly Tuesday to set the ground rules for a new primary. Following the statute, which calls for special elections to take place nine Tuesdays after a court ruling is issued, King set the new primary date for Oct. 26 one week before the presidential/gubernatorial election.

He also set a tentative date of Dec. 28 for a new general election in East Chicago, but he promised to revisit the issue after the primary. Arthur Santos was the lone Republican in the 2003 mayoral race, garnering just 22 percent of votes cast.

The players in the new primary will be those who participated in the May 2003 Democratic primary Pastrick, former City Councilman George Pabey and former City Judge Lonnie Randolph.

The Post-Tribune has several other stories today on the election (access them today, as the paper does not archive): "Many city voters not surprised by courts decision" is available here; "Election board mulls new elections" is available here; and "Special election Questions & Answers" is available here.

From the Munster Times: "E.C. mayoral primary set for October: State Supreme Court rejects Pastrick's petition to redo mayoral election" is available here. Some quotes:

Save the date of Oct. 26. That's when the new East Chicago election will be held, after the Indiana Supreme Court on Tuesday dashed Mayor Robert Pastrick's hopes of avoiding a new Democratic primary contest. * * *

The justices rejected Pastrick's petition that asked them to reconsider their earlier ruling that ordered a redo of the 2003 primary election. The court also denied the Lake County Board of Elections and Registration's request for a rehearing.

"Mayor Pastrick is disappointed with the Indiana's Supreme Court's order denying his petition for rehearing," said George Patton, Pastrick's appeals attorney. "At this time he is considering all of his options." * * *

Within hours of the state high court's ruling, Special Judge Steven King ordered the new primary to be reheld on the last Tuesday of October, and tentatively scheduled the general mayoral election for Dec. 28.

The primary winner will face Republican Arthur Santos, who was the GOP mayoral candidate last fall. Wedged between the two mayoral contests is the Nov. 2 general election. "Logistically, this will be an incredible challenge for the staff of the election board," said James Wieser, the board's Democratic attorney.

The Times also has this story titled: "New election means new political strategies: Candidates must decide if they have support to win mayor's office." The lead:
The Indiana Supreme Court's decision to hold firm on its order for a new mayoral election has advanced the political ballgame in East Chicago and sent the top political players into their respective dugouts to plot their next strategy.

Posted by Marcia Oddi on Wednesday, August 25, 2004
Posted to Indiana Decisions

Tuesday, August 24, 2004

Indiana economic development

Inside Indiana Business has a story today titled "Steering Committee Named to Lead New State Economic Development Plan." The lead:

INDIANAPOLIS, Indiana, August 24, 2004 Indiana Lieutenant Governor Kathy Davis, Indiana Chamber of Commerce Executive Director Kevin Brinegar and Thomas New, Director of Governmental Affairs for the law firm Krieg DeVault, will jointly chair the statewide steering committee guiding the update of a new strategic economic development plan for Indiana.

The plan will be completed in December 2004, in time for the Indiana General Assembly to utilize during its 2005 session. The Indiana Economic Development Council (IEDC) is required by statute to update the state economic development strategic plan this year. The most recent plan, Break Away Growth, was published in April 1999.

The planning process is beginning with the writing of economic development plans with Indianas 12 Indiana Department of Commerce regions, says IEDC president, Jackie Nytes. IEDC, in partnership with the Indiana Department of Commerce, is managing the planning process for the regions, providing them with research data and planning assistance. Regional plans also are to be completed in December 2004. IEDC will incorporate the 12 regional plans into the state strategic economic development plan.

Hoosier businesses, farmers, educators and economic development professionals, as well as the general public, are being invited to participate in the process of producing the new plan. Regional public input-gathering forums are planned for late September. Dates, times and locations of these forums will be available on the Indiana Economic Development Councils new planning Web site, www.indianaplans.org.

Worth reviewing in the story is the list of the seven subcommittes and their membership.

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to Indiana economic development

Indiana Decisions - One Today from Court of Appeals

Roy Shepard v. Sarah H. Carlin (8/24/04 Ind CtApp) [Statutory Construction; Attorney Fees]
Crone, Judge

Appellant-defendant Roy Shepherd appeals the trial courts award of $1.00 in attorneys fees, costs, and expenses pursuant to Indiana Code Section 34-50-1-6. [IC 34-50-1 deals with offers of settlement] We reverse and remand.

Issue. We restate the issue Shepherd presents as whether a trial court has discretion to enter a nominal award of attorneys fees, costs, and expenses under Indiana Code Section 34-50-1-6. * * *

This case involves a question of statutory interpretation. We note that the interpretation of a statute is a question of law reserved for the courts. Appellate courts review questions of law under a de novo standard and owe no deference to a trial courts legal conclusions. If the language of a statute is clear and unambiguous, it is not subject to judicial interpretation. * * *

Finally, with respect to the statute at issue, we observe that Indiana adheres to the American Rule with respect to the payment of attorney fees and requires that parties pay their own attorney fees absent an agreement between the parties, statutory authority, or rule to the contrary. [cite omitted] As such, Indiana Code Section 34-50-1-6 is in derogation of the common law and therefore must be strictly construed.

When the word shall appears in a statute, it is construed as mandatory rather than directory unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning. The term must carries with it the same meaning. [cite omitted] * * *

Subsection (a) requires a trial court to award attorneys fees, costs, and expenses to the offeror upon the offerors motion. More specifically, subsection (b) provides that an award must consist of attorneys fees at a rate of not more than one hundred dollars ($100) per hour and other costs and expenses incurred by the offeror after the date of the qualified settlement offer but may not total more than $1,000. (Emphases added.) As the emphasized language makes clear, the trial court is required to award the attorneys fees, costs, and expenses actually incurred by the offeror. Put another way, the trial court does not have discretion to enter a nominal award.

Here, Shepherd filed a motion for attorneys fees, costs, and expenses within the requisite thirty days after judgment and submitted the requisite affidavit establishing that he had incurred $3,487.39 in such fees, costs, and expenses after the date of the qualified settlement offer. Given that Carlin did not challenge the reasonableness of this amount, we conclude that the trial court erred in awarding Shepherd less than $1,000. See Ind. Code 34-50-1-6(c) (The affidavit constitutes prima facie proof of the reasonableness of the amount.). We therefore reverse and remand with instructions to award Shepherd $1,000 in attorneys fees, costs, and expenses. Reversed and remanded.
BAKER, J., and BARNES, J., concur.

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to Indiana Decisions

Indiana Decisions - Six from 7th Circuit Today

Cochran, Larry v. Buss, Edward, Superintendent (ND Ind., Judge Sharp)

Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.
PER CURIAM. Larry Cochran, an Indiana state prisoner, filed a pro se petition for a writ of habeas corpus. See 28 U.S.C. 2254. Mr. Cochran challenged a prison disciplinary sanction that he had received for physically resisting a staff member, which resulted in a one-month loss of telephone privileges and a suspended deprivation of sixty-days good time credit. Mr. Cochran claimed that the prison disciplinary board had denied him due process of law because it had refused his requests to continue the hearing and to present an additional witness and because it had found him guilty without sufficient evidence. The district court concluded that Mr. Cochran had failed to assert a cognizable claim under 2254 and dismissed the petition. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand the case with direction to dismiss as moot.
Beach, Randall A. v. Commonwealth Edison (ND Ill.)
Before EASTERBROOK, RIPPLE, and DIANE P. WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. After 31 years on the job, Randall Beach retired from Commonwealth Edison in June 1997 and moved to Idaho. He was 52 at the time. By leaving before age 55, Beach gave up entitlement to future health benefits, though he retained his vested pension. Before taking this extra-early retirement, Beach asked his supervisor, plus ComEds human resources staff, whether there was any immediate prospect that the firm would offer a voluntary separation package in his department, the Transmission and Distribution Organization. Beach knew that ComEd was reorganizing department by department and that it sometimes offered sweeteners, such as severance pay and health benefits, to those who agreed to depart. As Beach remembers these conversations, everybody said absolutely its not going to happen. Youre not going to get the package. The company is not going to offer your department a package. It just will not happen. That was the essence of everything I got. Six weeks after Beachs retirement, however, ComEd did offer a separation package to 240 of the 4,700 employees in his department. Had he been employed on August 7, 1997, Beach would have been eligible for these benefits. When ComEd declined to treat him as if he had departed in August or September rather than May (when he gave notice and stopped working) or June (when he left the payroll), Beach filed this suit under the Employee Retirement Income Security Act. After a bench trial on stipulated facts, the district judge concluded that ComEd had violated its fiduciary duty to a participant in an ERISA plan by giving incorrect advice. Even though no one had intended to deceive BeachComEds senior managers did not begin to consider separation benefits for the Transmission and Distribution Organization until after Beachs retirement, and no one in the human resources staff knew what was comingthe district judge held that ComEd must treat Beach as if he had stayed through August and qualified for all benefits then on offer. * * *

[p. 8] Beach was not the victim of fraud, and ComEd did not have a duty of accurate disclosure in the period preceding the plans adoption. The human relations staff might have been careless, but it did not violate any duty of loyalty owed to Beach. Accordingly, the judgment of the district court is reversed.

[pp. 8-26] RIPPLE, Circuit Judge, dissenting. A single principle controls this case. [A] fiduciary may not materially mislead those to whom the duties of loyalty and prudence described in 29 U.S.C. 1104 are owed. * * *

For all of these reasons, I would uphold the district courts conclusion that ComEd violated its fiduciary obligations to Mr. Beach through its material misrepresentations. I respectfully dissent.

USA v. Montes, Luis (ND Ill.)
Before COFFEY, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Luis Montes pleaded guilty to possessing with intent to distribute more than five kilograms of cocaine. See 21 U.S.C. 841(a)(1). The district court sentenced him to 120 months imprisonment, the statutory minium under 841(b)(1)(A), and to five years supervised release. Mr. Montes appeals his sentence. He submits that the court should have granted him relief from the statutory minimum sentence under the safety valve provision. See 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2. For the reasons set forth in the following opinion, we affirm the judgment of the district court. * * *

The safety valve provision permits a court to sentence certain first-time, non-violent drug offenders who were not organizers of criminal activity and who made a good faith effort to cooperate with the Government to a sentence under the federal guidelines instead of the applicable statutory mandatory minimum sentence. * * *

In sum, the district court did not clearly err in finding that Mr. Montes had not provided completely truthful information and, thus, did not qualify for relief from the statutory minimum sentence under 3553(f) and U.S.S.G. 5C1.2.

Jet, Incorporated v. Shell Oil Company (ND Ill.)
Before RIPPLE, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. Several independent franchisees of Shell-branded filling stations (the franchisees) alleged that Shell Oil Company, Equilon Enterprises, Incorporated, and Equiva Services, LLC, violated 15 U.S.C. 2805(f), a provision of the Petroleum Marketing Practices Act (PMPA), by presenting them with a new set of franchise agreements in a take it or leave it manner and thus committing wrongful nonrenewal under the PMPA. The franchisees also alleged, however, that they actually had renewed their franchise agreements. The district court concluded that the PMPA does not permit claims for constructive nonrenewal and therefore dismissed the claim under Federal Rule of Civil Procedure12(b)(6). We affirm.
Muhur, Yordanos M. v. Ashcroft, John (On Petition for Review of an Order of
the Board of Immigration Appeals)
Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Yordanos Muhur, who succeeded in obtaining from us a reversal of her removal order and the remand of her case for asylum to the immigration service, 355 F.3d 958 (7th Cir. 2004), now seeks an award of attorneys fees and costs under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A). The Act provides that a court shall award the prevailing party his attorneys fees and other expenses unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

The petition presents several issues. The first is whether Muhur was a prevailing party, since all she got from us was a remand for reconsideration of her asylum application; we did not order that she be granted asylum. * * * [The panel rules yes.]

The next question is whether the governments position, in defending the denial of asylum to Muhur, was substantially justified or . . . special circumstances make an award unjust. * * *

The last question is the amount of attorneys fees and court costs to which Muhur is entitled. The amounts sought, after certain adjustments properly urged by the government, are modest: $9,439 in attorneys fees and $459.52 in costs. However, the EAJA caps hourly rates at $125 unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee, 28 U.S.C. 2412(d)(2)(A), and Muhur seeks reimbursement at rates ranging from $60 to $225 an hour. Pierce v. Underwood, 487 U.S. 552, 572 (1988), held that the statutory ceiling can be pierced for attorneys having some distinctive knowledge or specialized skill needful for the litigation in question and gave as examples attorneys having a practice specialty such as patent law and attorneys who use a knowledge of foreign laws or languages in their practice. * * *

[T]he cases pierce the ceiling for immigration lawyers who bring relevant expertise to a case, such as knowledge of foreign cultures or of particular, esoteric nooks and crannies of immigration law, in which such expertise is needed to give the alien a fair shot at prevailing. [cites omitted]. The immigration laws are immensely complex (perhaps second only in complexity to the law of postconviction remedies) [emphasis added] and their application often requires knowledge of foreign cultures unfamiliar to most Americans, as in this case. The top rate sought here, $225 an hour for Herbert Igbanugo, is modest by current standards of attorney compensation and the government does not object to his rate, noting the extensive argument in support of the claimed rate for him. It does object to the $190 an hour sought for the lawyer, Riddhi Jani, who put in the most hours on the case. We cannot find anything in the papers submitted by Muhur concerning Janis qualifications, experience, special knowledge, standard billing rates, or anything else that might bear on her entitlement to a fee in excess of the statutory ceiling. We shall therefore reduce her hourly fee to the ceiling. With this adjustment, the petitioner is awarded attorneys fees of $7,053.50 along with costs of $459.52, for a total of $7,513.02.

USA v. Rogers, Kelvin (SD Ill.)
Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Kelvin Rogers believes that the district court improperly handled the question of further supervised release in connection with his second revocation proceeding. Briefly, the court took the position that it was entitled to impose a term of supervised release up to the amount that it originally imposed at Rogerss first sentencing proceeding. Rogers argues that the courts conclusion was wrong, and rather, that the sentence imposed at his first revocation hearing created a cap on any subsequent proceedings in his case. Complicating matters is the question whether Rogers properly objected to the district courts action, and if not, whether he waived or forfeited this point. We conclude that Rogers did not waive the point, but that his objections were too vague properly to preserve it. Thus, he did forfeit his objection to the district courts action, and he may argue only plain error before this court. Finding no such error, we affirm the new sentence.

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to Indiana Decisions

Indiana Decisions - Updating "Overview of Blakely in the 7th Circuit and in Indiana State Courts"

At the end of July the Indiana Law Blog published a two-part entry titled an "Overview of Blakely in the 7th Circuit and in Indiana State Courts." Part I dealt with 7th Circuit courts; Part II with Indiana state courts.

I plan to update these entries by Labor Day at the latest. Those who follow this blog regularly know that there have been several recent Indiana Court of Appeals decisions referencing Blakely. And perhaps there will be more by Labor Day.

In the federal courts, as a result of the Booker decision, the circuit court has been remanding with this statement: "Thus, in light of the analysis set forth in Booker, we remand these cases to the district court for resentencing." But what happens then? And what of initial sentencing decisions at the district level, post-Blakely/Booker?

District courts from Wisconsin have issued several interesting decisions. Indiana's district courts have made several rulings, but none of them seem to be written. And I haven't yet looked into Illinois.

Readers are invited to contribute any information they may have. (Be sure to let me know whether or not I may use your name.)

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to Indiana Decisions

Indiana Law - Prohibit a Donkey After the Fact?

"Neighbor tolerated horse, but says donkey is too much" is the headline to this story today in the Evansville Courier&Press. Some quotes:

Hugh Ralph didn't like it when a horse appeared in the back yard of his neighbor's East Side home last year. But things got worse Sunday. Ralph was awakened by the braying of a donkey. "It was really loud," Ralph told the Evansville City Council on Monday. * * *

Ralph said he complained about the horse being in a city neighborhood, but found that is possible if the owner has a permit. He said he complained that Miller didn't have a permit for the horse, but the city animal control office granted the owner's request for a permit. Ralph said he expected the officer will grant a permit for the donkey.

Ralph asked the council to revise the ordinance and prevent large animals from being allowed within city limits. The law allows cows, horses, donkeys, swine, poultry and other animals, he said. Council President Steve Bagbey asked the council attorney to look into the case. * * *

Councilman Joe Kiefer, who stopped by the Miller house after the council meeting, said no one answered the door. Kiefer said he saw the animals, adding, "That mule is huge."

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to Indiana Law

Indiana Courts - Judge dismisses juror in Hammond gun trial

"Judge dismisses juror in Hammond gun trial" is the headline to this story today in the Gary Post-Tribune, where the employer of a juror may have exerted influence to have the juror removed from a case. Here are some quotes:

HAMMOND The federal judge presiding over a capital murder trial Monday said a company may have influenced one of the jurors and he may hold the company in contempt of court.

U.S. District Judge Charles Norgle excused one of the alternate jurors from service on the first day of the trial of a murdered Hammond gun shop owner. The judge received a letter from the jurors boss on the first day of the trial requesting Michael OSullivan be dismissed from jury duty due to the economic hardship it could cause him.

Norgle ordered the court should have National Credit Systems Inc. send a written response to claims it may have influenced a juror who already took a sworn oath to serve on a jury. The company could be held in contempt of court, the judge said. * * *

The judge read a letter sent to him by the vice president of the company, Jeffrey Ewald, requesting OSullivan be excused. The letter stated the company had an important project coming up and they needed OSullivan available to work on it.

Norgle said it was inappropriate for OSullivan to talk about this case with anyone outside the court. The juror stated he never discussed any specifics about the case with this employer.

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to Indiana Courts

Law - Tonight's "In the Jury Room" Episode

On Sunday we reported on ABC's In the Jury Room, where, as reported on the ABC site:

ABC News producers were ... granted total access to five homicide cases through special orders from the Arizona and Colorado supreme courts. During each hour of In the Jury Room, ABC News cameras are there as prosecutors build and try a homicide case in court. Public defenders and defense attorneys also allowed ABC News to go inside the confidential lawyer-client relationship as they work to establish their defense. And cameras were allowed to observe juries evaluating the evidence and trying to come to a consensus in what often proves to be a contentious process.
On tonight's show:
The State of Colorado v. Bryson Knight
Tuesday, Aug. 24 (10:00-11:00 p.m. ET):
Twenty-year-old college student Bryson Knight is charged with first-degree murder and faces the possibility of spending the rest of his life in prison. He admits he fatally shot a man, but claims he acted in self-defense. Knight got into a fistfight with Lewis Carl Morris and lost. The next day, Knight went to Morris' girlfriend's house, he says, to have another one-on-one fight with Morris. The defense says Morris pulled out a gun and fired at Knight. They will argue that their client had no choice but to shoot back. Mitch Morrisey, one of the most experienced prosecutors in the Denver DA's office, says that this is not self-defense but a cold blooded killing. Knight will have to take the stand in his own defense. If the jury believes his story, he will walk free.

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to General Law Related

Indiana Law - Flag issues again at Muncie campground

Last May the Indiana Law Blog posted an entry headed "Muncie bans confederate flags from campground."

Today's Muncie StarPress reports, in a story that begins:

MUNCIE - In an extraordinary move, Mayor Dan Canan on Monday ordered all flags, including the American and MIA/POW flags, removed from Prairie Creek Reservoir campsites. And Canan reiterated a earlier policy that seasonal campers must remove all trailers and equipment after Nov. 1.

"It is a sad commentary that it is an either or situation of allowing everything or nothing," said Canan, who banned Confederate battle flags and other banners last spring. That action resulted in the Indiana Civil Liberties Union suing Canan and the city, alleging the initial policy was unconstitutional and violated the First Amendment.

Canan came up with the new policy banning all flags last week after consulting city attorneys. While indicating the new policy was a better defense of the lawsuit, Canan declined to say how the city intended to settle it.

Some campers and veterans were quick to criticize Canan's action as several campers refused to lower their American flags. The ICLU plans to amend its suit, seeking a preliminary injunction to stop the city from banning flags. And a representative of the Indiana American Legion said Canan was overreacting to the lawsuit.

Posted by Marcia Oddi on Tuesday, August 24, 2004
Posted to Indiana Law

Monday, August 23, 2004

Indiana Decisions - Three from Court of Appeals Today

Clinton Branham v. State of Indiana (8/23/04 IndCtApp) [Criminal Law & Procedure]
Ratliff, Senior Judge

The following issue is presented in this appeal: whether a reservation of the right to appeal a pre-trial motion to discharge survives the Defendants guilty plea. * * *

Defendant argues that a reservation of the right to appeal the trial courts denial of his motion for discharge, contained within the plea agreement, and reflected in the judgment of conviction, preserves his right to raise the issue by way of direct appeal. Yet, within that same plea agreement, and reflected in the judgment of conviction, Defendant acknowledged that by accepting the plea he was waiving his right to appeal and to post-conviction relief. * * *

Defendant is not entitled to specific performance of the reservation of the right to appeal his pre-trial motion for discharge. The issue became moot upon his plea of guilty to the instant charges. Further, we do not address the issue of whether Defendants plea was induced by the alleged promise thereby rendering his plea involuntary because that issue is not before us. Last, even if Defendant were entitled to a direct appeal, he could only challenge issues relating to his sentencing. Affirmed.
BAKER, J., and VAIDIK, J., concur.

Terry Severs v. Marjorie Severs (8/23/04 IndCtApp) [Family Law]
Garrard, Senior Judge
In 2002 husband had a heart attack. As a result he was receiving social security disability benefits. He also received VA disability benefits as a result of his exposure to Agent Orange in the Vietnam War. In its final order the court determined that husbands veterans benefits were not marital assets because the [husband] never made a financial payment or contribution from marital assets. The court found, however, that husbands social security disability payments were marital property and ordered that the wife be granted forty percent of all future social security disability payments due the husband. The determination that the social security disability payments were marital property is the sole issue presented in this appeal. We agree that they were not, and we therefore reverse and remand.

Neither party has addressed the potential application of Section 407(a) of the Social Security Act, 42 USCA 407(a), to the facts at bar. [Set out in ftnote. Because we are loath to decide cases on grounds not raised by the parties, and an adequate basis exists to decide the issue correctly under our prior decisions, we do not rely on 407 to reach our result.

While we find no prior Indiana cases considering social security disability payments, several decisions occur in the general area of disability payments which may constitute marital property. We briefly review them sequentially. * * *

From all this we conclude that during the marriage the husbands social security taxes were simply taxes imposed on all covered employees by the federal government. They did not, in any proper sense, constitute a voluntary contribution by him of money to secure a benefit, that thereby depleted the marital pot. [See footnote]

It follows that the social security disability benefits received by the husband were not marital property and the court erred in awarding a portion of them to the wife. We, therefore, reverse and remand with instructions to the trial court to determine the marital estate and the division thereof with the exclusion of husbands disability pensions.
SHARPNACK, J., and CRONE, J., concur.

Ftnote: To the extent that language in Lawson v. Hayden, 786 N.E.2d 756 (Ind. Ct. App. 2003) (considering the Railroad Retirement Act) would support a different conclusion, we disapprove it.

Larry Roberts v. Dr. Peggy Sankey, et al. (8/23/04 IndCtApp) [Medical Malpractice; Tort; Statutory Construction]
Vaidik, Judge
Larry Roberts, personal representative of the estate of Nell Roberts, appeals the trial courts grant of summary judgment in favor of Dr. Peggy Sankey. Because we find that Indiana Code 16-21-2-7 does not create a private right of action, we conclude that the trial court properly granted summary judgment in favor of Dr. Sankey.

In 1994, Nell died while she was a patient in the Vermillion County Hospital (VCH). An investigation by the Indiana State Police subsequently revealed that during the time period that Nell was a patient at VCH, the death rate in the four-bed Intensive Care Unit (ICU) had increased dramatically. Specifically, during a 22-month period, 147 patients died in the ICU at VCH. Orville Lynn Majors, a licensed practical nurse at VCH, was working when 121 of those patients died. Majors was eventually charged with and convicted of the murder of six of those patients. Majors v. State, 773 N.E.2d 231 (Ind. 2002). Nell was not one of the patients whom Majors was convicted of murdering. * * *

On appeal, Roberts neither disputes this authority nor asserts that Dr. Sankey and Nell had a physician-patient relationship. Instead, Roberts argues that Indiana Code 16-21-2-7 creates a duty from Dr. Sankey to Nell even in the absence of a physician-patient relationship. * * *

Roberts asserts that because Dr. Sankey, who was a member of the medical staff at VCH, did not review the professional practices at VCH for the purpose of reducing morbidity and mortality, she breached the statutory duty; therefore, he can maintain an action against Dr. Sankey pursuant to the Indiana Medical Malpractice Act. Although Dr. Sankey may have had a duty under Indiana Code 16-21-2-7, it does not necessarily follow that Roberts may enforce this duty in a private cause of action.

When a civil cause of action is premised upon violation of a duty imposed by statute, the initial question to be determined by the court is whether the statute in question confers a private right of action. * * *

We cannot glean any apparent legislative intent to authorize a private right of action for the failure of a physician to follow any of the medical staff responsibilities set out in Indiana Code 16-21-2-7. We are unwilling to go beyond the intent of the legislature in providing a private remedy under this statutory scheme.

Nevertheless, Roberts argues that Winona Memorial Hospital, Limited Partnership v. Kuester, 737 N.E.2d 824 (Ind. Ct. App. 2000), which is the only case that addresses Indiana Code 16-21-2-7, creates a duty from Dr. Sankey to Nell. In effect, Roberts argues that Kuester already determined that Indiana Code 16-21-2-7 confers a private right of action for breach of the statutes duties. However, Roberts reads too much into Kuester. In Kuester, the court did not create a duty from a physician to a patient under Indiana Code 16-21-2-7. Rather, the court looked to the statute to determine whether the legislature intended that negligent credentialing of a physician falls within the ambit of the Indiana Medical Malpractice Act. The court ultimately concluded that negligent credentialing of a physician is subject to the Medical Malpractice Act. Roberts is wrong that Kuester determined that Indiana Code 16-21-2-7 creates a private right of action upon which a patient can sue a physician.

Because the statutory scheme contains a comprehensive enforcement mechanism that addresses the States responsibility to license and regulate hospitals for the protection of hospital patients, we conclude that Indiana Code 16-21-2-7 does not create a private right of action. Further, we did not find such a private right of action in Kuester. Accordingly, the trial court properly granted summary judgment in favor of Dr. Sankey. Affirmed.
SULLIVAN, J., and MAY, J., concur.

Posted by Marcia Oddi on Monday, August 23, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit Issues Two Today

Harding, Linnell v. Sternes, Jerry, Warden (ND Ill.)

Before RIPPLE, KANNE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Linnell Harding was convicted by a jury of armed robbery and possession of a stolen motor vehicle in relation to an armed carjacking. The Illinois Appellate Court rejected his appeal, and the Supreme Court of Illinois summarily denied his petition for leave to appeal. Mr. Harding then filed a petition for post-conviction relief in the state court that was unsuccessful. Mr. Harding then petitioned for federal habeas corpus relief. See 28 U.S.C. 2254. The district court appointed counsel and granted leave to file an amended petition. In this amended petition, Mr. Harding focused on two claimsineffective assistance of counsel and the exclusion of evidence. The district court denied the petition. For the reasons set forth in this opinion, we affirm the judgment of the district court.
McKenzie, Kerri v. Milwaukee County (ED Wis.)
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Kerri A. McKenzie, a Milwaukee County sheriffs deputy, sued her employer alleging employment discrimination and violations of her Equal Protection and First Amendment rights. The district court granted summary judgment to her employer, and McKenzie appeals. We affirm.

Posted by Marcia Oddi on Monday, August 23, 2004
Posted to Indiana Decisions

Sunday, August 22, 2004

Law - Stories about the TV/Reality Overlap

"TV's 'reality' becomes real problem in courtroom" is the headline of this story that ran August 15th in the Evansville Courier&Press. It talks about the expectations the TV show, CSI, implants in the minds of real jurors. A quote:

As it happens, not every maggot-covered crime is solved with DNA analysis, mass spectrometers and chemical tests that cause invisible traces of blood or semen to emit an eerie blue glow. What real-life prosecutors are stuck with, then, is having to explain to a jury pool about why such tests weren't done, or couldn't be done, in their investigations.
On the same day, the Munster Times ran this story, headlined "Legal dramas relate to real life." Here is a quote in the story from Lake County Prosecutor Bernard Carter:
"One thing I find to be real true is the dialogue between police and prosecutors," he said. "That is so true. In every case, there is a question of whether the defendant is willing to accept these terms. That part is very realistic."

Ever wonder how true to life "Law and Order" and TV's other legal dramas are? Do cops and trial lawyers watch the shows? How do they measure up with real life? Carter says you'd be surprised. "Law and Order," in particular, is very popular with prosecutors.

"I talked to many of my peers and they watch it, too," he said. "You think they would get tired of it after dealing with it every day. But for me, it's one of my favorite programs."

Based on his experience in Lake County, the investigative parts of the show are accurate, Carter said. The main difference is the show's creators must condense their cases to fit into a one-hour TV show. "The version you get on TV is not as thorough," Carter said. "It's more or so cleansed, if you will, than in real life. But they take real-life situations and develop them for presentation. They do a real good job, in my opinion."

I can vouch for the fact that Indianapolis prosecutors are also Law & Order fans.

The Denver Post today has an editorial expressing mild concern about the ABC show, "In the Jury Room":

The seven-part documentary, which began airing this month, takes viewers where cameras have never been before - into the jury room. * * *

It's gripping television, yes, but could it damage or distort the justice system? * * *

ABC received special permission from Colorado's Supreme Court, along with Arizona's and Ohio's, to send cameras into jury rooms.

Prosecutor Helen Morgan, who was featured in last week's installment on Trujillo, says the cases her department agreed to have taped were so serious that jurors easily forgot they were being watched by cameras. A routine DUI case may have been different, she suggests.

"The facts of the case are so compelling I really don't think any juror after 10 or 15 minutes into opening statements remembered the cameras were there," she said. "When you're talking about the death of a 2-year-old child, I don't think there's anyone there who won't do what their heart and head tells them."

The ABC "In the Jury Room" site includes materials such as: Jury Instructions; Sentencing Phase Instructions; Transcript: Jury Deliberations; and Transcript: Jury Deliberations During Penalty Phase. Here is a review of the first show from Slate, headlined "ABC's fascinating In the Jury Room deglamorizes the legal process."

Posted by Marcia Oddi on Sunday, August 22, 2004
Posted to General Law Related

Environment - Two important editorials

This sensible economic development / environment editorial appeared in the Saturday Indianapolis Star. It begins: "Our position is: Questions of adequate water resources in Boone County need to be addressed before massive growth takes place."

"Saving the Oceans" is the heading to this editorial today in the Washington Post that begins:

OVER THE PAST year and a half, two blue-ribbon panels -- the Pew Oceans Commission and the U.S. Commission on Ocean Policy -- have put together major reports on the state of America's coastal waters. The reports, broadly speaking, agree on a depressing reality: This country's oceans are in trouble and absent dramatic policy changes will be irreversibly damaged. Both groups make extensive recommendations for averting such a catastrophe, which would both devastate major economic interests and constitute a fundamental betrayal of society's stewardship of its natural treasures. Over the past century this country has developed a commitment to preserving forest and desert wilderness, protecting air quality and safeguarding land-based species. The message of the two commissions is that policymakers must show a similar commitment to America's territorial waters, which comprise an area larger than the land mass of the United States.

Posted by Marcia Oddi on Sunday, August 22, 2004
Posted to Environmental Issues

Saturday, August 21, 2004

Environment - Stories Today

$56 Million Settlement. There are a number of stories today on the Grand Calumet River cleanup in NW Indiana:

"Companies to pay to help clean river" - AP story in Courier-Journal.

"8 firms OK deal to clean Calumet: Decontamination method debated" in the Chicago Tribune.

"Grand Cal set for $56M facelift" and "Nature nudging its way back to Grand Cal river", in the Gary Post Tribune (which doesn't archive its stories).

"Almost $56 million to restore Grand Cal River: Settlement considered among nation's largest resource-damage agreements" and "Record pollution settlement breath of fresh air for governor" in the Munster Times.

CAFO (concentrated animal feeding operation) - Two stories from the Muncie Star-Press: "Dairy CAFO neighbors warn of problems" is here; "Farm Bureau supports dairy CAFO" is here.

Landfill. The Evansville Courier&Press reports today:

BOONVILLE, Ind. - A developer seeking to build a 635-acre landfill near Elberfeld, Ind., has withdrawn a rezoning request for the property. Warrick County commissioners were to have considered final approval of the request at a Sept. 8 meeting. The request cannot be refiled for six months, said Area Plan Director Sherri Phillips.

Posted by Marcia Oddi on Saturday, August 21, 2004
Posted to Environmental Issues

Friday, August 20, 2004

Indiana Decisions - Four today from the Court of Appeals

Truck City of Gary v. Schneider National Leasing, et al. (8/20/04 IndCtApp) [Agency; Contract; Equity]
Bailey, Judge

* * * Truck City raises two issues, which we expand and restate as: [1] Whether the trial court erred by considering parol or extrinsic evidence in making its determination that neither Schneider nor Salem was responsible for the costs associated with the repairs at issue because a representative of Truck City made an oral promise to Salem that such repairs were covered by warranty; [2] Whether the trial courts judgment in favor of Salem and Schneider is contrary to law because Salemacting as Schneiders agentconsented to the repair work at issue and, therefore, both are responsible for the cost of such repairs; and [3] Whether the trial courts judgment in favor of Schneider is contrary to law because Schneider is financially responsible for the repairs at issue under the equitable theory of quantum meruit. * * *

After conducting a bench trial, the small claims court determined that: (1) Salem was Schneiders agent because, by advertising its name on the Tractor, Schneider gave third parties reason to believe that Salem had apparent authority to bind Schneider; and (2) Salem and Schneider are not liable for the gasket repairs because Truck City promised Salem that such repair work would be covered by warranty. Accordingly, the trial court entered judgment in favor of Salem and Schneider. It is from this judgment that Truck City now appeals. * * * [Interesting, fact-based, analysis follows]

For the foregoing reasons, we affirm the trial courts judgment in favor of Salem and Schneider. Affirmed.
SHARPNACK, J., and MAY, J., concur.

Jason Carson v. State of Indiana (8/20/04 IndCtApp) [Criminal Law & Procedure]
Opinion on Rehearing
Vaidik, Judge
* * * Carson asks this Court to findpursuant to the recently-decided Blakely v. Washington, 124 S. Ct. 2531 (2004)that his sentence violates his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury. [See footnote] Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. See Ind. Post-Conviction Rule 1(a)(1). Waiver notwithstanding, after considering the merits of Carsons challenge, we find that Blakely has no effect on his enhanced sentence. * * *

Indiana courts have not yet considered what effect, if any, the Blakely opinion may have on Indianas sentencing scheme.

Carson urges us to find that his enhanced sentence is improper because the trial court made factual findings and entered an enhanced sentence upon those findings without requiring that a jury make those findings beyond a reasonable doubt. Those factual findingsor aggravating circumstancesconsisted of the following: a history of criminal and delinquent activity, which includes multiple convictions; a need for corrective or rehabilitative treatment that can best be provided by incarceration in a penal institution or in a work release facility; and the strong likelihood that, based upon his criminal history, he will commit battery again. As to the first aggravator, the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely. See Blakely, 124 S. Ct. at 2536. The other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. In any event, a single aggravating circumstance is adequate to justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Therefore, even if our supreme court were to find that Indianas sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carsons sentence. Petition for rehearing denied.
SULLIVAN, J., and MAY, J., concur.

[Ftnote] In Blakely, Justice OConnor writes, [A]ll criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack. Blakely, 124 S. Ct. at 2549 (OConnor, J., dissenting). Carsons sentence was imposed in September 2003. Nonetheless, given todays decision, we need not reach the question of Blakelys retroactivity.

Auto Owners Insurance Company v. Jon Harvey, et al. (8/20/04 IndCtApp) [Insurance]
Baker, Judge
[Auto-Owners] appeals the denial of its motion for summary judgment in its case against appellees-plaintiffs Jon Harvey and Misty Johnson, the co-personal representatives for the estate of Brandy Nicole Harvey (Brandy). Though Auto-Owners raises five issues for appeal, we need only address one: was there an occurrence upon which to predicate liability coverage under the insurance policy? We hold that there was not and, thus, reverse the trial court and remand with instructions to enter summary judgment in favor of Auto-Owners. * * *

On May 5, 2003, Auto-Owners filed a motion for summary judgment wherein it argued that no genuine issue of material fact remained for trial and that it was entitled to judgment as a matter of law. Specifically, Auto-Owners contended that because Gearheart intentionally pushedas demonstrated by his convictionBrandy into the water, there was no coverage under the insurance policy because there was not an occurrence, defined by the policy as an accident. Auto-Owners noted that public policy was served by such a requirement in the insurance policy to avoid a situation wherein insurance coverage would be provided to an intentional tortfeasor. * * *

Public policy. We would be remiss if we failed to mention the ramifications of Harvey and Johnsons arguments. A consequence of Harvey and Johnsons claims is the abandonment of the rationale that a person should not be permitted to insure against harms he may intentionally and unlawfully cause others, and thereby acquire a license to engage in such activity. Home Ins. Co. v. Neilsen, 165 Ind. App. 455, 451, 332 N.E.2d 240, 244 (1975). Gearhearts case is particularly applicable inasmuch as he admitted that he intentionally battered Brandy.

Conclusion. In light of the issues discussed, we conclude that there is no genuine issue of material fact as to Gearhearts mental state inasmuch as Gearheart pleaded guilty to involuntary manslaughter, a predicate offense of which was battery. Because, then, there was no question that Gearheart committed the act that led to Brandys death knowingly or intentionally, summary judgment should have been entered in favor of Auto-Owners. The judgment of the trial court is reversed, and this cause is remanded with instructions that summary judgment be entered in favor of Auto-Owners.
FRIEDLANDER, J., and BAILEY, J., concur.

Halifax Financial Group v. Margaret Nance, et al. (8/20/04 IndCtApp) [Real Property; Tax]
Bailey, Judge
[Halifax Financial Group] appeals an order of the trial court denying its petition for a tax deed to real property purchased at a tax sale and ordering the Floyd County Auditor to permit Appellee-Respondent Regional Bank to redeem the tract outside the one-year redemption period of IC 6-1.1-25-4. We reverse and direct judgment for the tax purchaser.

Issue. Halifax presents a single issue for review: whether the trial court determined the tax sale to be invalid because of its misinterpretation of the notice requirements of IC 6-1.1-25-4.6. * * *

Previously, the statute provided that an interested person could redeem the tract at any time before the date when the auditor was required to issue a tax deed; thus a redemption could occur after the one year redemption period expired if the trial court had not yet entered the order for a tax deed. See Wildwood Acres Trust v. First Citizens State Bank, 671 N.E.2d 1199 (Ind. Ct. App. 1996). Consistent with that version of IC 6-1.1-25-1, Regional Bank contended that, because no tax deed had issued before the second notice, it was still within the redemption period and should be advised accordingly.
However, effective July 1, 2001, IC 6-1.1-25-1 was amended to provide for a definitive time for redemption, dependent upon the expiration of the statutory period specified in section 4, rather than upon the time of a court order for a tax deed. IC 6-1.1-25-4(a) provides in relevant part: The period for redemption of real property sold under IC 6-1.1-24 is one (1) year after the date of sale. Contemporaneously, the legislature amended IC 6-1.1-25-2(b) to delete an escalated rate of payment applicable to tracts redeemed after a one-year redemption period. The redemption statutes, construed together, clearly contemplate a fixed one-year redemption period. See footnote We find no ambiguity.

Accordingly, advice in the second notice of a continuing right to redemption would have been contrary to law. As such, the trial court erroneously concluded that the tax sale was invalid because of the omitted advice. Halifax complied with the statutory requirements and is entitled to a tax deed. We reverse the trial courts order and direct judgment for the tax purchaser.
SHARPNACK, J., and MAY, J., concur.

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to Indiana Decisions

Environment - Stories Today

Water Quality. An interesting story Thursday in the Fort Wayne News Sentinel reported:

For years, public-health officials and environmental regulators have thought that human sewage and waste from agricultural operations played the biggest part in increasing the levels of fecal bacterial in the states surface water. Now a long and thorough research project in the St. Joseph River and its tributaries casts considerable doubt on that assumption.

The results are so unexpected that it ought to influence the way water pollution is analyzed far beyond northeast Indiana. * * * The biggest culprits appear to be horses and geese, according to her findings.

[Deborah Ross, a professor of biology at IPFW] and the studys sponsor, the St. Joseph Watershed Initiative, suggested that changes in landscaping could go a long way toward keeping the excrement of geese and horses out of the river. Neatly mowed grass adjoining rivers, lakes and ponds attracts geese, so letting vegetation grow higher around surface water ought to keep them away. That would have the secondary benefit of slowing and filtering run-off from farther away, too. Similarly, horse owners ought to take care to ensure that their animals wastes cant be washed easily into ditches or creeks, either.

Superfund. The Gary Post Tribune reports:
Eighteen months ago, the U.S. Environmental Protection Agency was ready to scoop up and haul away contaminated soil at the defunct Calumet Container property in Hammond. Today, there isnt a bulldozer in sight.

Uncooperative polluters, bureaucratic red tape, missing records and fighting among stakeholders have allowed the 11-acre site straddling the Illinois-Indiana state line to remain a public health risk and potential environmental disaster. Nearby wetlands, wildlife and Wolf and Powderhorn lakes are being threatened by the sites groundwater and storm water runoff, studies warn. But the EPAs use of out-of-court negotiations hasnt persuaded alleged polluters to clean up the mess.

The EPA which has $1.7 million in Superfund money set aside for a cleanup may step up pressure later this year on companies and individuals who are possibly responsible for the pollution.

Odor. The Munster Times reports:
HAMMOND -- City Environmental Director Ron Novak spent about four hours in a hospital emergency room Wednesday following an inspection of a chemical treatment facility he traced as the origin of foul odors in north Hammond. Novak said the business, ProLiquids, located at 3 141st St., may be subject to severe penalties. ProLiquids owner Jerry Dykstra was unavailable for comment Thursday.

Hammond City Councilman Mark Kalwinski, D-1st, said he received several calls from residents Wednesday, particularly those in the Pulaski Park neighborhood, complaining of a foul odor. He then contacted Novak.

Novak said it was hard to determine the type of odor permeating about a half-mile-wide area bordered roughly by 141st Street to the north and 138th Street to the south and between Grover Avenue and Johnson Street. He said the odor smelled somewhat fishlike.

As Novak and Kalwinski drove around the area together, the odor led them to the doorstep of ProLiquids, Novak said. "As soon as I took two steps inside I got hit by an absolute overwhelming odor of ammonia," Novak said. "I ran out of the building all the way to my car 30 to 40 feet away. I can't believe I got exposed to that stuff. It absolutely stunned me."

He said an overhead garage door was open and releasing the odors outside. He said he ordered employees to close all open doors and vents. Novak said he became further troubled when employees were unable to produce the materials handling data sheet, which is required to be in a fireproof lock box on the premises. He then dispatched a fire rescue squad to the scene to secure any other release areas and conduct testing.

Stormwater. An update today in the Munster Times on the Porter County Jail story, where native plants and grasses are being planted "to draw stormwater into the ground instead of becoming runoff in the Stimson Drain area south of U.S. Route 30."

Landfill. The Evanville Courier&Press reports today from Elberfeld that: "Residents concerned about a proposed 635-acre landfill near this northeastern Warrick County town met Thursday to begin organizing against it."

Grand Calumet River Settlement. The Gary Post Tribune has a story this morning; the actual announcement is at 2:00 p.m. today. Check back here for details.

[Update] Here is the story posted at 4:13 p.m. CDT by the Munster Times. The headline: "Industries to pay $56 million for river cleanup."

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to Environmental Issues

Law - State of Kentucky help sought on drug use by miners

An interesting story today in the Louisville Couier Jounral reports:

PRESTONSBURG, Ky. Kentucky coal operators told state mining regulators yesterday that they are struggling with widespread drug abuse in mines, and that the state needs to help them combat the problem.

Some miners who are fired from one mine for using drugs just get a job at another mine to make enough to buy more drugs, while mine operators could face legal problems if they disclose a fired miner's drug history, the Kentucky Mining Board was told.

"I've never seen nothing as bad as the drug problem," said Linton Griffith, an official with Dags Branch Coal Co. in Pike County.

"If there's not something done, it'll only get worse."

Donna Johnson, another mine operator, said companies are so desperate for workers "we have to take whoever comes." If a miner fails a company's drug test, she said, they "know how to get past the system." * * *

Drug and alcohol use at mines is illegal, but state and federal agencies have no authority to test miners for drugs. The state Department of Mines and Minerals last year considered asking state legislators for such authority but didn't, for reasons that were never made clear.

The Mining Board is examining ways to require drug tests after all accidents and when "reasonable suspicion" exists of drug use, said Tony Oppegard, general counsel of the Kentucky Office of Mine Safety and Licensing.

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to General Law Related

Indiana Decisions - Six 7th Circuit Decisions Today

Johnson, Gregory v. McBride, Daniel R. (SD Ind., Judge Young)

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * The Supreme Court of Indiana affirmed on direct appeal, 584 N.E.2d 1092 (Ind. 1992), and rejected Johnsons collateral attack. 693 N.E.2d 941 (Ind. 1998). That decision became final on June 26, 1998, so Johnson had until June 28, 1999, to seek federal collateral review. 28 U.S.C. 2244(d)(1). (June 26, 1999, the end of the statutory year, was a Saturday; the deadline therefore rolled forward to the following Monday.) Johnsons lawyer waited until June 25 to mail the petition to the district court, which received and filed it on June 29. Eventually the judge dismissed the petition as untimely. * * *

A desire to see more information in the hope that something will turn up differs from the factual predicate of [a] claim or claims for purposes of 2244(d)(1)(D). The district judge therefore was right to use 2244(d)(1)(A) to identify the last day Johnson had to get a collateral attack under way. Counsel bungled the job in two ways. First, she waited until the final business day of the statutory year. Prudent lawyers act sooner, so that Murphys Law will not undermine a clients interests. Second, counsel used first-class mail rather than Federal Express or another service that guarantees next-business-day delivery, or (better still) sending a messenger to the courthouse to file in person. Apparently counsel believed that use of the mails would add three days to the time available. Yet Fed. R. Civ. P. 6(e) applies only to documents served on opposing counsel, not to documents such as complaints or notices of appeal that must be filed in court. Nothing in the Rules Governing Section 2254 Cases in the United States District Courts treats any document as filed before actual receipt by the district courts clerk. Johnson concedes that his lawyer erred in supposing that use of the Postal Service adds to the time available for filing a petition. What he contended in the district court, and repeats here, is that lateness should be excused because delay was counsels fault. * * *

He wants us to treat his own lawyer as the source of interference, but lawyers are agents. Their acts (good and bad alike) are attributed to the clients they represent. * * * The sixth amendment creates an exception to this principle for criminal prosecutions. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). Once trial and direct appeals have run their course, however, neither the sixth amendment nor federal law guarantees effective assistance of counsel for collateral proceedings, not even in a capital case. * * * So it is as if Johnson himself had made the decisions that led to the delay.

Modrowski v. Mote, 322 F.3d 965 (7th Cir. 2003), illustrates the point. Counsel filed a collateral attack one day late, and the prisoner insisted (just as Johnson does) that counsels shortcomings should be treated as an excuse. Modrowski contended that his (former) lawyer experienced a series of physical and mental ailments [that] prevented him from working on the petition and filing it on time. We replied that "attorney incapacity is equivalent to attorney negligence for equitable tolling purposes. We will not revisit our long-standing determination that petitioners bear ultimate responsibility for their filings ...". * * * Johnsons situation is the result of a simple gaffe by counsel; he has less claim to extra time than Modrowski did. * * *

Johnson enjoyed thorough consideration by the Supreme Court of Indiana on both direct appeal and collateral attack. To obtain another round of review in federal court, Johnson had to meet the statutory criteria. He did not do so, and we are not authorized to excuse his non-compliance. The statute itself holds out one last opportunity, however: if exculpatory evidence should emerge, distinct enough to create a separate claim, then 2244(b)(2)(B) could allow Johnson to file a successive petition. * * * Affirmed.

USA v. Redditt, Lynn M. (ND Ill.)
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found former postal worker Lynn Redditt guilty of one count of stealing mail, 18 U.S.C. 1709, and one count of opening mail, id. 1703(a). On appeal Redditt challenges two evidentiary rulings. Any evidentiary errors made by the district court were harmless, so we affirm.
Tropp, Geraldine v. Western-Southern Life (ND Ill.)
Before BAUER, KANNE, and DIANE P. WOOD, Circuit Judges.
KANNE, Circuit Judge. On September 27, 2002, Geraldine Tropp, administrator of her mothers estate, filed a classaction complaint against Western-Southern Life Insurance Co. in the Circuit Court of Cook County, Illinois. After Western-Southern removed the case to federal court, Tropp filed an amended class-action complaint. The amended complaint included her original claim that Western-Southern violated the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1, et seq. The district court, finding that the interests of the estate were governed by a prior class-action settlement approved by an Ohio state court, granted summary judgment to Western-Southern on that count. Tropp also alleged (as claims in the alternative) that Western-Southern improperly administered the class-action settlement. The district court, after ensuring that the estate was paid an undisputed amount under the settlement, dismissed the remaining counts. We affirm in all respects.
Brucaj, Viollca v. Ashcroft, John D. [Petition for Review of an Order of the Board of Immigration Appeals.]
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner Viollca Brucaj seeks review of an adverse decision of the Board of Immigration Appeals (the BIA or Board) that denied her request for asylum. * * *

In sum, the precise basis for the BIAs decision cannot be gleaned from the single-sentence explanation included in the Boards order. As set forth above, it may be that the BIA was exercising its discretion within its statutory and regulatory authority when it denied Ms. Brucajs claim. It appears, however, that in considering Ms. Brucajs claim, it erected artificial barriers to relief that are not grounded in statute, regulation or case law. At a minimum, a more plenary consideration is certainly appropriate. We therefore grant Ms. Brucajs petition and remand the case to the BIA for clarification regarding the basis for denying Ms. Brucajs humanitarian asylum claim.

USA v. Jones, Darrell (SD Ill.)
Before FLAUM, Chief Judge, and MANION and KANNE, Circuit Judges.
KANNE, Circuit Judge. On October 19, 2001, a federal grand jury returned a four-count indictment charging Darrell Jones with three counts of distributing over five grams of crack cocaine and one count of possessing with the intent to distribute more than five grams of crack cocaine and cocaine powder. See 21 U.S.C. 841. On December 12, Jones pled guilty to all four counts of the indictment, pursuant to a written plea agreement in which he waived his right to appeal his sentence. The next day, Jones attempted to withdraw his guilty plea. The district court, on December 17, denied Joness motion without holding an evidentiary hearing. The district court proceeded to sentence Jones to 360 months in prison under the United States Sentencing Guidelines. We affirm the district courts decision to deny Joness motion to withdraw his guilty plea without an evidentiary hearing, and we decline to review Joness sentence as his plea bargain included a valid waiver of his right to appeal.
Here, from the opinion, is the text of the plea agreement:
The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the Defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The Defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack[.]
Laszcz, Barbara v. Ashcroft, John [Petition for Review of an Order of the Board of Immigration Appeals.] Denied for lack of jurisdiction.

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to Indiana Decisions

Law- More on Florida Building Codes

On Tuesday (8/17/04) we had an entry quoting a Washington Post story titled "Federal Regs and State Code for Mobile Homes Tested in Florida Devastation." Today the NY Times has a story headlined "After Hurricane Charley, a New Look at Stiffer Building Codes." Some quotes:

Prompted by reports of widespread shoddy construction in Miami after Hurricane Andrew in 1992, the Legislature adopted a statewide building code in 2001 that replaced a patchwork of county and municipal codes.

The code toughened requirements on new buildings for roofing, siding and other construction components, all to reduce flying debris in a storm. New buildings must also be able to withstand wind speeds that vary by region, from 100 miles an hour inland to about 150 m.p.h. in Key West.

The state code allows counties to adopt even stricter standards. But only Miami-Dade and Broward Counties, at the southeastern tip, did so. They had in fact adopted the most stringent hurricane code in the nation in 1994.

Those two counties require hurricane shutters or impact-resistant windows on every residential building, as well as stronger reinforcement of roofs and walls, windows and door openings. * * *

Whether or not regulations are tightened, mobile homes are thinning in Florida, partly because of changing environmental regulations and a voracious real estate market that is enticing owners of parks for mobile homes to sell to high-end developers. The industry will lobby the Legislature not to change any rules that might increase costs, Mr. Pistorino said, as will the powerful building industry, many of whose leaders are close to Mr. Bush, a former developer himself, and to lawmakers.

Builders resist stiffer codes because they increase construction costs, said Charles Danger, head of the Miami-Dade Building Department. The building lobby, he noted, persuaded Mr. Bush and the Legislature to delay enacting the new code until March 2002, almost year after they had approved it.

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to General Law Related

Indiana Decisions - Transfer Lists

No transfer list last week or this week. I'm told the Court will resume conferences next week.

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to Indiana Transfer Lists

Indiana Decisions - Blakely ruling by U.S. District Judge Richard L. Young

The Evansville Courier&Press reported yesterday, in a story by Maureen Hayden (who also reported this excellent early Indiana/Blakely story), headlined "Sentencing ruling works to benefit of Posey County defendant," that:

A Posey County, Ind., man charged with a gun crime was the benefactor Wednesday of a sweeping U.S. Supreme Court decision on mandatory sentencing guidelines. Todd Perry Redman, 33, of Mount Vernon, Ind., saw his expected prison term reduced by three years, after U.S. District Judge Richard L. Young set aside the restrictive sentencing formula that has been in place for more than 20 years.

In doing so, Young joins a growing number of federal judges tossing out a sentencing system that favored prosecutors and virtually stripped federal judges of their ability to make discretionary decisions about the criminal penalties they hand down. Young stopped short of declaring the guidelines unconstitutional - a ruling made recently by some of his peers, including the former chief federal judge for Southern Indiana, U.S. District Judge Sarah Evans Barker. * * *

Earlier this year, Redman pleaded guilty to a federal charge of being a felon in possession of a gun. Under the complicated, points-based federal sentencing guidelines, he faced a minimum prison term of 7 years, plus three months.

Young's decision Wednesday to set aside those mandatory guidelines reduced the maximum penalty Redman faced to 4 years, 9 months.

A brief AP story also appears today in the Louisville Courier-Journal.

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to Indiana Decisions

Indiana Decisions - Update on 7th Circuit ruling from yesterday

An item in How Appealing caused me to look again at Judge Easterbrook's opinion yesterday in Reiser v. Residential Funding Corporation. As a result, I have modified yesterday's entry.

Posted by Marcia Oddi on Friday, August 20, 2004
Posted to Indiana Decisions

Thursday, August 19, 2004

Law - Allegedly crooked Brooklyn judge on trial

The NY Times local section reports today, in a story titled "Played in Court, Tapes Show Judge Coaching Lawyer and Taking Cash," that:

Surveillance tapes made last year in a Brooklyn matrimonial judge's office and played publicly by prosecutors for the first time yesterday show the judge, Gerald P. Garson, offering a lawyer detailed instructions on how to argue a case before him. He also assures the lawyer that if he follows them, "The worst possible scenario is a win."

In the tapes, Justice Garson tells the lawyer, Paul Siminovsky, that he will award his client in a divorce case the rights to a house and uses an expletive to describe how the decision would affect the client's estranged wife. Justice Garson also dictates to Mr. Siminovsky the exact language he should use in a memo to the judge and urges him to charge his client extra for the memo.

The tapes were played yesterday in State Supreme Court in Brooklyn in the criminal trial of Justice Garson's former clerk and a court officer, who are charged with taking bribes to steer Mr. Siminovsky's cases to Justice Garson.

Posted by Marcia Oddi on Thursday, August 19, 2004
Posted to General Law Related

Law - 9th Circuit overturns 3-judge panel in Kincade DNA case

There are a number of reports today on this ruling yesterday. Here is the Boston Globe story, headlined "Ruling OK's mandatory DNA tests for parolees: Federal court reverses panel's earlier opinion." Some quotes:

SAN FRANCISCO -- Federal parolees may be required to provide blood samples for a national DNA database used to solve crimes, the US Court of Appeals for the Ninth Circuit ruled yesterday.

The 6-to-5 decision, which overturned a three-judge panel's ruling last October, brings the Ninth Circuit in line with other appellate courts around the country that have examined the four-year-old federal DNA law.

The law requires federal prisoners, parolees, and probationers convicted of a variety of crimes, including murder, sexual abuse, and burglary, to provide blood samples for a national DNA bank monitored by law enforcement. * * *

The ruling last October concluded that the federal DNA program violated a parolee's right to privacy. Generally, law enforcement officers must have probable cause or some suspicion of criminal behavior before conducting a search, which includes taking a blood sample.

But yesterday's decision held that parolees' privacy rights are limited and they can be forced to give blood samples even if there is no specific reason to suspect they were involved in additional crimes.

Thomas Cameron Kincade, a decorated Navy seaman and convicted bank robber, challenged the law after his probation officer sought a blood sample from him.

Judge Alex Kozinski, who also dissented yesterday, said Kincade's Fourth Amendment right to be free of unreasonable searches would be violated by the placement of his DNA in a databank that law enforcement will monitor long after Kincade has completed parole.

Monica Knox, a public defender who represented Kincade, said the ruling establishes the legal groundwork for the government to take DNA samples of the general population in the future.

The 7th Circuit ruled on this question in January. This 1/9/04 Indiana Law Blog entry reports on the 7th circuit opinion that day in Green v. Berge, upholding the Wisconsin law compelling felons in Wisconsin prisons to submit a DNA sample for analysis and storage in a data bank. Particularly interesting is Judge Easterbrook's concurring opinion, where he posits that there are at least four major categories: prisoners, persons on conditional release; felons whose terms have expired; and those who have never been convicted of a felony. Judge Easterbrook references the 3-judge panel's decision in Kincaide. He concludes:
This appeal does not present the question whether DNA could be collected forcibly from the general population, and I understand the courts reference to [Indianapolis v. Edmond] and [Ferguson v. City of Charleston] to mean no more than that these decisions are compatible with collecting and preserving DNA from persons in the first two categories, and likely from those in the third. There will be time enough to address the fourth if and when a more general statute about the collection and use of medical information should be enacted.
Here is the 40-page 3-judge panel's ruling in USA v. Kincade (10/2/03). Here is the 108-page opinion filed 8/18/04.

For more stories, the San Franscisco Chronicle has a report here, with this lead:

A federal appeals court reversed itself Wednesday and ruled that the government can draw blood from federal parolees for a DNA databank used to investigate crimes -- a decision that dissenters called an invitation to repression. * * *

Wednesday's ruling contained strong language on both sides of the case.

Under the court's rationale, "all Americans will be at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace,'' where it could someday be used "to repress dissent, or, quite literally, to eliminate political opposition,'' said dissenting Judge Stephen Reinhardt, author of the panel's October ruling.

Judge Diarmuid O'Scannlain, who wrote the lead opinion Wednesday, said Reinhardt was invoking "dramatic Hollywood fantasies'' and using an "alarmist tone'' to greatly exaggerate the scope of the ruling. O'Scannlain noted that the federal law applies only to convicted criminals and said courts were capable of protecting the privacy of law-abiding citizens.

Posted by Marcia Oddi on Thursday, August 19, 2004
Posted to General Law Related

Law - Federal Courts Funding Crisis

"FEDERAL COURTS: Funding crisis looms" is the title to this article in the new National Law Journal. A quote:

Judges warn that, before long, without additional funding, they will have to suspend all civil jury trials because there will be no money to pay jurors. Creditors and debtors will experience uncertain delays in the closing of bankruptcy cases. If Congress follows through on its threat of a hard freeze on overall federal spending next year and fails to provide the necessary increases in spending for federal courts, the judicial branch will be decimated by the resultant firing or furloughing of an additional 2,000 to 5,000 employees.
Listen to the earlier NPR story here; read the stories on federal courthouse budgetary issues here.

Posted by Marcia Oddi on Thursday, August 19, 2004
Posted to General Law Related

Indiana Decisions - Attorney Disciplinary Rulings

Here is the link to the Indiana Supreme Court's Orders of Final Resolution in Attorney Disciplinary Cases, showing those issued so far in 2004. Included on the list are several names I recognize.

Posted by Marcia Oddi on Thursday, August 19, 2004
Posted to Indiana Decisions

Indiana Decisions - One Court of Appeals Decision Today

Paternity of AGR, Frank Conflenti v. Alice Huff (8/19/04 IndCtApp) [Family Law]
Kirsch, Chief Judge

Frank A. Conflenti (Father) appeals the trial courts order in his dispute with Alice I. (Robbins) Huff (Mother) over the custody of the parties child, A.G.R. He raises the following issues for review: [parenting time issues, retroactive support calculation, attorney fees, medical care and treatment information, additional contact information]. * * *

Affirmed in part, reversed and remanded in part.
NAJAM, J., and RILEY, J., concur.

Posted by Marcia Oddi on Thursday, August 19, 2004
Posted to Indiana Decisions

Indiana Decisions - Three Today from 7th Circuit

Reiser, Edward v. Residential Funding (SD Ill.)
[Updated 8/20/04: This entry has been revised by the addition of three new paragraphs after the first. In addition, the Court posted a correction to this opinion late yesterday afternoon - the change is incorporated.

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. After denying a motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), the district court certified its order for interlocutory appeal under 28 U.S.C. 1292(b). Defendant has filed the necessary petition, which we grant in part and summarily reverse so that the remainder of the suit may proceed without delay. * * *

Residential Funding contends that the complaint does not state a claim under Illinois law because 815 ILCS 205/4.1a was repealed in 1981 by another statute lifting the cap on mortgage interest rates. We agreed with this position in Currie v. Diamond Mortgage Corp., 859 F.2d 1538, 1542-43 (7th Cir. 1988), holding that it would be so odd to limit points, when straight interest rates are unlimited, that Illinois must be understood to have repealed the points cap implicitly. Both the Attorney General of Illinois and the agency that regulates banking under Illinois law have issued advisory opinions to the same effect. But in this case the district judge refused to follow Currie. The judge wrote that he found two decisions by one of the states five intermediate appellate courts more persuasive than Currie and elected to follow them instead. See U.S. Bank N.A. v. Clark, 807 N.E.2d 1109 (Ill. App. 1st Dist. 2004); Fidelity Financial Services, Inc. v. Hicks, 214 Ill. App. 3d 398, 574 N.E.2d 15 (Ill. App. 1st Dist. 1991). Recognizing that other district judges in this circuit continue to enforce Currie, and that many suits similar to this one are pending elsewhere, the district judge sensibly concluded that a prompt decision under 1292(b) could accelerate the disposition of many pieces of litigation. We agree with that conclusion and therefore grant the petition for permission to appeal.

By treating Currie as having no more than persuasive force, the district court made a fundamental error. In a hierarchical system, decisions of a superior court are authoritative on inferior courts. Just as the court of appeals must follow decisions of the Supreme Court whether or not we agree with them, see State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989), so district judges must follow the decisions of this court whether or not they agree. See United States v. Ramsey, 785 F.2d 184 (7th Cir. 1986). A decision by a states supreme court terminates the authoritative force of our decisions interpreting state law, for under Erie our task in diversity litigation is to predict what the states highest court will do. Once the states highest court acts, the need for prediction is past. But decisions of intermediate state courts lack similar force; they, too, are just prognostications. They could in principle persuade us to reconsider and overrule our precedent; assuredly they do not themselves liberate district judges from the force of our decisions.

We see little point in reexamining Currie. It represents an educated guess about how the Supreme Court of Illinois will rule. Instead of guessing over and over, it is best to stick with one assessment until the states supreme court, which alone can end the guessing game, does so. Illinois has an internal division on this issue, with two judicial decisions set against the views of two executive officials. The state must resolve this conflict internally; restlessness at the federal level serves no useful purpose. * * *

The petition for leave to appeal is granted, limited to the claim under the Illinois Interest Act. With respect to that subject the decision is reversed, and the case is remanded with instructions to dismiss the complaint to the extent it relies on 815 ILCS 205/4.1a. The petition for leave to appeal otherwise is denied.

USA v. Stevens, Lawrence (CD Ill.)
Before CUDAHY, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Lawrence Stevens was charged in a three-count indictment with possession with intent to distribute five or more grams of crack, 21 U.S.C. 841(a)(1) (Count 1), possession of a firearm by a felon, 18 U.S.C. 922(g)(1) (Count 2), and possession of a firearm during and in relation to a drug trafficking crime, id. 924(c) (Count 3). A jury found Stevens guilty on all three counts, and he was sentenced to concurrent 327-month terms of imprisonment on Counts 1 and 2 and a consecutive sentence of life imprisonment on Count 3. Stevens has appealed, and we affirm.
Trejo, Jose v. Hulick, Donald (ND Ill.)
Before POSNER, ROVNER, and DIANE P. WOOD, Circuit Judges.
POSNER, Circuit Judge. Jose Trejo was convicted in an Illinois state court of murder, and after exhausting his state remedies sought federal habeas corpus, lost in the district court, and appeals. He argues that no reasonable trier of fact could have found that there was enough evidence to support a finding of guilt beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307 (1979), and that the state appellate court was unreasonable to suppose there was and so he is entitled to relief under 28 U.S.C. 2254(d)(1) (unreasonable application of a rule of federal law clearly established by the U.S. Supreme Court). * * *

There was enough evidenceif barely enough, given the well-known vagaries of eyewitness identification, see, e.g., Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 Ann. Rev. Psych. 277 (2003)to support Trejos conviction. The denial of habeas corpus relief is therefore AFFIRMED.

Posted by Marcia Oddi on Thursday, August 19, 2004
Posted to Indiana Decisions

Environment - Major settlement to be announced tomorrow

The Munster Times reports today, in a story headlined "Industries to pay millions to clean Grand Cal: EPA settlement to be announced Friday," that the governor will announce Friday:

a multimillion dollar settlement Friday by several area industries to clean up the polluted Grand Calumet River.

The settlement, according to a government source, would be among the largest since the $150 million fine paid by Exxon Mobile Corp. after the oil tanker Exxon Valdez ran aground in 1989, spilling 11 million gallons of oil into Alaska's Prince William Sound. * * *

A source said a number of corporations will contribute to the settlement including the following: USX, which owns the Gary Works steel mill; the bankrupt LTV Steel mill in East Chicago; and Atlantic Richfield, which owned a now-abandoned refinery in East Chicago and recently was merged into BP, which runs the larger and still-active refinery in Whiting.

A source said no lawsuit was filed in the matter, but the settlement is related to one the Indiana Attorney General's office won last year when it obtained $1.65 million from LTV Steel.

The settlement is designed to reverse decades of abuse by industries that have dumped a brew of toxic wastes into the river, which courses through Gary, East Chicago and Hammond and Chicago's south suburban communities.

Here is a copy of the press release.

Posted by Marcia Oddi on Thursday, August 19, 2004
Posted to Environmental Issues

Wednesday, August 18, 2004

Indiana Decisions - Three today from the Court of Appeals

Tyson J. Wilkie v. State of Indiana (8/18/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

In October 2003, Tyson Wilkie pleaded guilty to two counts of Causing Death When Operating a Motor Vehicle With a Schedule I Controlled Substance in the Body, both as Class C felonies. The trial court sentenced Wilkie to the maximum sentence of eight years on each count and ordered him to serve those sentences concurrently. Wilkie now appeals and raises the following issues for review: 1. Whether the trial court abused its discretion when it imposed the eight-year sentence. 2. Whether Wilkies eight-year sentence is inappropriate in light of the nature of the offense and his character. 3. Whether the trial court abused its discretion when it denied Wilkies request that he be given pre-trial credit for 299 days he spent on home detention prior to sentencing. We affirm. * * *

The trial court identified two aggravating factors: (1) the risk that Wilkie would commit another crime, and 2) he was in need of rehabilitation best provided by incarceration. The court identified no mitigating factors. The court then sentenced him to eight years on each count and, consistent with the plea agreement, ordered Wilkie to serve those terms concurrently. See footnote Wilkie now appeals.

Issue One: Aggravators and Mitigators. * * * A single aggravating factor is sufficient to justify an enhanced sentence. Lewis v. State, 759 N.E.2d 1077, 1087 (Ind. Ct. App. 2001), trans. denied. See footnote. * * *

A. Mitigating Factors. * * * The trial court is not obligated to find mitigating factors or explain why it has chosen not to do so. * * *

B. Aggravating Factors. * * * [T]he trial courts statements during the sentencing hearing clearly set forth the evidence on which it relied in determining the presence of the two aggravating factors. The information contained in the Pre-Sentence Investigation Report, in addition to the testimony at the sentencing hearing, supports the aggravating factors identified by the court. The trial court did not abuse its discretion when it found two aggravating factors, and those aggravators justify the courts imposition of an eight-year sentence. * * *

[Under the heading "Issue Two: Indiana Appellate Rule 7(B)" the Court has a very interesting discussion of plea agreements which should be read in full by those interested in sentencing. Some quotes:

Initially, the State asserts that because he pleaded guilty pursuant to a plea agreement, Wilkie is barred from challenging the appropriateness of his sentence. In support, the State directs us to our recent decision in Gist v. State, 804 N.E.2d 1204, 1206 (Ind. Ct. App. 2004). * * * Gist is distinguishable because unlike the plea agreement in that case, the agreement here did not contain a provision in which the State (1) agreed to limit its sentencing recommendation to the presumptive term, and (2) acknowledged that the defendant was induced to enter into the agreement based on that sentencing recommendation. Rather, Wilkies plea agreement provides in relevant part that [t]he defendant understands a person who commits a [C]lass C felony shall be imprisoned for a fixed term of four years with not more than four years added for aggravating circumstances or not more than two years subtracted for mitigating circumstances. In other words, Wilkies plea agreement contained boilerplate language regarding the possible sentencing range for the class of offense to which he was pleading guilty. By signing an agreement in which he attested only that he understood the range of sentences which the trial court could impose by law, Wilkie did not in any way agree that a maximum sentence was appropriate.

Further, we disagree with the decision in Gist to the extent that it suggests that anytime a defendant voluntarily enters into a plea agreement, that defendant is thereafter barred from challenging his sentence as inappropriate.]

Issue Three: Pre-Trial Credit. * * * The trial court did not abuse its discretion when it refused to give Wilkie pre-trial credit for the 299 days he spent on home detention. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.

Footnote: A person who commits a Class C felony shall be imprisoned for a fixed term of four (4) years, with not more than four (4) years added for aggravating circumstances or not more than two (2) years subtracted for mitigating circumstances. Ind. Code 35-50-2-6(a).

Footnote: On June 24, 2004, after briefing was completed in this case, the United States Supreme Court issued its opinion in Blakely v. Washington, -- U.S. --, 124 S. Ct. 2531 (2004). We are mindful of that decision, but we leave for another day whether and, if so, to what extent Blakely may affect a trial courts finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B).

In the Matter of the Supervised Administration of the Estate of Ada K. Goldman (8/18/04 IndCtApp) [Estates; Attorney Fees]
May, Judge
Dwight Goldman (Goldman), the sole beneficiary of a 1996 will by Ada Goldman (decedent), appeals the trial courts grant of attorney fees to Jerry McCain, granddaughter of decedent, who successfully contested the validity of the 1996 will in order to have decedents 1975 will probated instead. Goldman raises two issues, which we consolidate and restate as whether the trial courts grant of attorney fees was erroneous. * * *

Because neither of Goldmans arguments warrants reversal of the trial courts award of attorney fees to McCain, we affirm.
SULLIVAN, J., and VAIDIK, J., concur.

Jason D. Wilder v. State of Indiana (8/18/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
May, Judge
Jason Wilder appeals the denial of his motion to correct error. Wilder raises one issue on appeal, which we restate as whether his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated because his jury venire included only one African-American . We affirm in part and vacate in part. * * *

While we find no error in the selection of Wilders jury venire, we must address the trial courts merger of Wilders felony murder conviction with his murder conviction. Wilder has not presented this issue; however, it is well established that a violation of double jeopardy protections is fundamental error and must be addressed upon appeal sua sponte. Dixon v. State, 772 N.E.2d 110, 115 (Ind. Ct. App. 2002). At the sentencing hearing the trial court considered argument of counsel with respect to the issue of double jeopardy and stated: [the court] now finds the offense of Felony Murder as charged in Count II is merged with and becomes a part of the Murder charged in Count I. (Appellants App. at 138.) The trial court then went on to sentence Wilder on the Count I murder and Count III attempted robbery.

A double jeopardy violation occurs when judgment of convictions are entered and cannot be remedied by the practical effect of concurrent sentences or by merger after conviction has been entered. Jones v. State, 807 N.E.2d 58, 67 (Ind. Ct. App. 2004). In appropriate circumstances, a defendant may be convicted and sentenced for both intentional murder and the felony that serves as the predicate for a felony murder charge so long as the felony murder conviction is vacated. Henson v. State, 707 N.E.2d 792, 794 (Ind. 1999).

The felony murder conviction should have been vacated instead of merged. [cites omitted] Accordingly, although we affirm the murder and the attempted robbery convictions, we instruct the trial court to vacate the felony murder conviction. For the forgoing reasons, we affirm in part and vacate in part.
SULLIVAN, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Wednesday, August 18, 2004
Posted to Indiana Decisions

Indiana Decisions - Two from 7th Circuit Today

USA v. Silva, Juan J. (ND Ind., Judge Lozano)

Before POSNER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. Juan Silva was the subject of an extensive undercover operation that included a confidential informant, ground and aerial surveillance, and tape-recorded conversations. A jury convicted Silva of conspiracy and possession with intent to distribute methamphetamine. Sentenced to 121 months imprisonment, he argues on appeal that he was convicted on the basis of hearsay and is entitled to a new trial.

A few examples of the evidence to which he objected will suffice. * * *

The district judge overruled hearsay objections and instructed the jury that the evidence was not being offered for the truth of the matter. Thats surprising, for the evidence directly inculpated Silva. See Fed. R. Evid. 801(c). Perhaps its admission could have been justified under the co-conspirator exception to the hearsay rule. See Fed. R. Evid. 801(d)(2)(E). Yet this is not what the prosecutor contended, and the judge did not find that the speakers were Silvas confederates and that the declarations had been in furtherance of a joint enterprise. * * *

Perhaps all of this could be dismissed as harmless. The record has plenty of admissible evidence, and the judge did tell the jury that the contested evidence had not been admitted for a substantive use. Come the closing argument, however, the prosecutor explicitly used some of the hearsay as evidence of Silvas guilt. Defense counsel objected to the violation of the courts rulings that the evidence was not to be used to show Silvas culpability. * * *

Silvas brief complained at length about the closing argument and the judges failure to stop the prosecutor in his tracks. The brief for the United States, by contrast, ignored the subject. The prosecutor has not attempted to justify the closing argument or the judges perplexing instruction. And by ignoring the subject the United States has forfeited any opportunity to contend that the error was harmless. We decline to exercise our discretion to invoke the harmless- error doctrine on our own. [cites omitted] Far too much use was made of hearsay in this trial. Silva is entitled to another.

USA v. Johnson, Antoine (ND Ill.)
Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The defendant, convicted of drug and counterfeiting offenses in separate proceedings later consolidated, appeals only from the denial of his motion to suppress evidence that he contends was seized in violation of the Fourth Amendment. The appeal requires us to consider the scope of the independent source and inevitable discovery doctrinesdoctrines that are so similar that were not sure which one rules this case. The independent source doctrine allows the government to use evidence that it obtained both illegally and legally, as when evidence first found in an illegal search is later rediscovered in a legal one. Murray v. United States, 487 U.S. 533, 537 (1988). The inevitable discovery doctrine allows the government to use evidence that it obtained illegally but would have obtained legally in any event. The question in this case is whether it matters if the evidence seized illegally from the defendant had an alternative source in another illegal search but one that the defendant could not have challenged directly.

Proliferation of legal categories is a chronic problem for American law, as it deflects attention from practical to definitional concerns. The independent-source and inevitable discovery doctrines are easily collapsed into the familiar rule of tort law that a person cant complain about a violation of his rights if the same injury would have occurred even if they had not been violated. To punish a person for an act that does no harm is not required in order to deter harmful acts. But this is in general, not in every case; the defendant, Antoine Johnson, is arguing in effect for an exception to the tort rule. [What follows is a terse analysis not readily summarized, including this: "The First Circuits analysis is at once complex and spongy, as well as inconsistent with the logic of the independentsource/
inevitable-discovery doctrine."]

Because our decision creates an intercircuit conflict, it was circulated to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). No judge voted to hear the case en banc.

Posted by Marcia Oddi on Wednesday, August 18, 2004
Posted to

Environment - Stories Today

Power Plants. This story today in the Louisville Courier-Journal reports:

New controls on coal-fired power plants, including some operated by LG&E Energy, are dramatically reducing a pollutant that causes smog. The reductions in nitrogen oxides by more than 90 percent on some smoke stacks may help explain cleaner air in Louisville and throughout the Southeast, officials said. And they are prompting questions by environmentalists about whether the new pollution controls should operate year-round, instead of only for five months.
Odor problem. In the contining story of the New Castle odor problem the Muncie Star-Press has this story today: "Prof says odor is machining fluids."

Flood-plain buyouts. The Fort Wayne Journal Gazette reports today that "Flood-plain buyouts under way in Decatur." A quote:

More than 50 homes suffered significant damage in last summers flooding along the St. Marys River in Decatur and now stand vacant. Sixteen of those homes have been targeted for purchase and demolition, in an effort to mitigate future flood damage. The more than $717,000 to buy the homes comes from a federal grant administered through the State Emergency Management Agency.
Gas and oil drilling. The Washington Post reports today:
Interior Department officials announced this week they will delay some new oil and gas projects on public lands until they can evaluate drilling's effects on wildlife. Some hunters' and anglers' groups hailed the initiative, though several environmentalists said that it meant little in light of the administration's push for energy development on federal property.
More? Possibily more stories later.

Posted by Marcia Oddi on Wednesday, August 18, 2004
Posted to Environmental Issues

Indiana Decisions - School textbook fees

The Indianapolis Star today has an opinion piece on school textbook fees. Some quotes:

For more than a decade, the Indiana General Assembly has discussed eliminating the fee, but has been deterred by budgetary constraints. It would cost more than $75 million to fund all textbooks of K-12 students.

The courts may beat lawmakers to the punch. A case on appeal to the Indiana Supreme Court raises the question: Do such fees violate the state constitution's guarantee of free tuition? To paraphrase a former president, it depends on what the meaning of "tuition" is.

Indiana's Constitution of 1851 guarantees "a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all."

The case arose because of:
a $20 student activity fee imposed in the 2003-04 school year by the Evansville-Vanderburgh School Corp. Faced with a big budget deficit and wanting to avoid cuts in programs and staff, the district imposed the fee on all students in kindergarten through 12th grade. It was to help pay for a variety of things, including counselors, nurses, extracurricular activities and athletic programs. * * * A Vanderburgh Superior Court * * * said students in the free/reduced-price lunch program shouldn't have to pay the fee.

On appeal, a panel of the Indiana Court of Appeals said no family should. "Although the fee being charged by the EVSC is currently 'only' 20 dollars, nothing in the logic of the (school district's) argument would prohibit public schools from charging a student a $200 fee, or for that matter even a $2,000 fee. This logic would permit our system of public schools to be priced out of reach in order to avoid raising local taxes."

The court added, "It is absurd to suggest that public schools may not charge for the services of a teacher, but may charge students a fee for things as essential to teaching and instruction as the services of the teacher, such as school buildings, maintenance, heating and cooling, electricity, or textbooks."

The case is Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation (5/28/04 IndCtApp). Access the May 28th Indiana Law Blog entry here (5th case down), along with links to, and quotes from, newspaper reports at the time.

The Star column also refers to a 2001 Official Opinion by Attorney General Stephen Carter: "In a similar case in June 2001, Attorney General Stephen Carter concluded that a Health Services Fee imposed in 1995 by the Eagle-Union Community School Corp. to pay for nurses was unconstitutional. Carter's opinion came at the request of a state legislator and carried no legal force." Access the AG's 2001 opinion here.

Posted by Marcia Oddi on Wednesday, August 18, 2004
Posted to Indiana Decisions

Tuesday, August 17, 2004

Indiana Decisions - Three from Court of Appeals today

James Childers v. State of Indiana (8/17/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

Appellant-Defendant James Childers (Childers) appeals his convictions of four counts of Check Fraud, Class D felonies, and one count of Attempted Theft, a Class D felony. We affirm.

Issue. Childers presents for review three issues, which we have consolidated and restated as a single issue: whether there is insufficient evidence to support his convictions because the State failed to establish that: (a) Childers acted with intent to defraud Fifth Third Bank; (b) Fifth Third Bank is a financial institution as defined in the check fraud statute; or (c) Childers presented checks. * * *

In light of the foregoing, there is sufficient evidence to support Childers convictions of Check Fraud and Attempted Theft. Affirmed.
SHARPNACK, J., and MAY, J., concur.

Ryan Beall v. Mooring Tax Asset Group (8/17/04 IndCtApp) [Attorney Malpractice]
Sullivan, Judge
Appellant, Ryan Beall, appeals from the judgment awarded against him in an attorney malpractice claim brought by Appellee, Mooring Tax Asset Group (Mooring). Beall presents four issues for our review, which we restate as: (1) whether the evidence was sufficient to establish that an attorney-client relationship existed between himself and Mooring; (2) whether certain tax sale notices sent on behalf of Mooring were legally defective; (3) whether Mooring properly established that its damages were caused by Bealls negligence; and (4) whether the trial court properly denied Bealls motion to correct error. * * *
The judgment of the trial court is affirmed.
MAY, J., and VAIDIK, J., concur.
William Tate v. State of Indiana (8/17/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
William Tate appeals from the sentence he received following his admission that he violated the conditions of his probation and his plea of guilty to a separate charge for operating a vehicle after being adjudged an habitual traffic offender, a Class D felony. He presents one issue for our review, whether the trial court erred in failing to credit the time he was incarcerated prior to sentencing against the sentence he received. We reverse and remand. * * *

Given the clear mandate set forth in I.C. 35-38-3-2 that the trial court must provide a copy of the judgment of conviction and sentence to the receiving authority and that it must include the amount of credit time earned for time spent in confinement before sentencing, in addition to case law which has consistently held that the pretrial credit must arise from pretrial confinement for the criminal charge for which the defendant is sentenced, we conclude that the trial court erred in failing to award Tate his credit time when he was sentenced. Thus, we remand to the trial court to revise the sentence so that Tate receives the credit time which he earned. In so doing, we recognize that we do not know whether any subsequent action has been taken in regard to the third charge which was pending at the time of Tates sentencing. If Tate has been sentenced upon that charge, it may very well be that the credit time was applied to that charge. If such is the case, the sentence upon that charge will have to be amended to reflect any changes made to the prior sentence so that Tate does not receive double credit, which was appropriately the trial courts concern based upon Tates initial request to save the credit time.

We reverse, and the cause is remanded to the trial court to revise the sentence which Tate received to reflect that he is entitled to pretrial detention credit.
MAY, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Tuesday, August 17, 2004
Posted to Indiana Decisions

Law - Illinois to Help Residents Buy Drugs From Canada, and Afar

"Illinois to Help Residents Buy Drugs From Canada, and Afar" is the headline to this story today in the NY Times. Some quotes:

Opening a new front in the fight over the cost of prescription drugs, Gov. Rod R. Blagojevich of Illinois is preparing to help residents of his state buy cheaper medicines from Britain and Ireland, as well as Canada.

Aides to Mr. Blagojevich, a Democrat, said he would announce on Tuesday that Illinois would create a program, accessible on the Internet, so people could buy 100 of the most common drugs for 25 percent to 50 percent less than in most American drugstores.

Federal authorities say it is illegal to buy drugs from outside the United States, but since early this year, officials in at least four other states - Minnesota, New Hampshire, North Dakota and Wisconsin - have set up Web sites that link residents to Canadian pharmacies. Expanding the market to Britain and Ireland, Mr. Blagojevich's aides said, will spread demand beyond Canada, where some suppliers have reported shortages of certain drugs.

"The drug companies have pretty aggressively been shutting supplies to Canada, and we want to ensure that the supply will meet the demand," Abby Ottenhoff, a spokeswoman for Mr. Blagojevich, said. "Ultimately, they can't shut down supplies to the world to keep prices high in the United States."

Posted by Marcia Oddi on Tuesday, August 17, 2004
Posted to General Law Related

Indiana Decisons - One Today from 7th Circuit

Liu, Mei D. v. Ashcroft, John (Petition for Review of an Order of
the Board of Immigration Appeals)

Before FLAUM, Chief Judge, and DIANE P. WOOD and EVANS, Circuit Judges.
FLAUM, Chief Judge. * * * The BIA dismissed Mei Dans appeal of the Immigration Judges (IJ) decision. Mei Dan then petitioned this Court for review of her asylum claim. For the reasons stated in this opinion, we deny the petition for review and affirm the decision of the BIA. * * * The BIA found that even if it accepted Mei Dans testimony as true, she failed to establish her eligibility for asylum.

Posted by Marcia Oddi on Tuesday, August 17, 2004
Posted to Indiana Courts

Law - Final part of Post series on Bush administration regulatory policy

The final report in the Washington Post three-part series on the Bush administration's regulatory policy was published today. The headline: "Appalachia Is Paying Price for White House Rule Change." Some quotes:

BECKLEY, W.Va. -- The coal industry chafes at the name -- "mountaintop removal" -- but it aptly describes the novel mining method that became popular in this part of Appalachia in the late 1980s. Miners target a green peak, scrape it bare of trees and topsoil, and then blast away layer after layer of rock until the mountaintop is gone.

In just over a decade, coal miners used the technique to flatten hundreds of peaks across a region spanning West Virginia, eastern Kentucky and Tennessee. Thousands of tons of rocky debris were dumped into valleys, permanently burying more than 700 miles of mountain streams. By 1999, concerns over the damage to waterways triggered a backlash of lawsuits and court rulings that slowed the industry's growth to a trickle.

Today, mountaintop removal is booming again, and the practice of dumping mining debris into streambeds is explicitly protected, thanks to a small wording change to federal environmental regulations. U.S. officials simply reclassified the debris from objectionable "waste" to legally acceptable "fill."

The "fill rule," as the May 2002 rule change is now known, is a case study of how the Bush administration has attempted to reshape environmental policy in the face of fierce opposition from environmentalists, citizens groups and political opponents. Rather than proposing broad changes or drafting new legislation, administration officials often have taken existing regulations and made subtle tweaks that carry large consequences.

There is much more in this lengthy story. For links to Parts I and II, see this Indiana Law Blog entry.

Posted by Marcia Oddi on Tuesday, August 17, 2004
Posted to General Law Related

Law - Federal Regs and State Code for Mobile Homes Tested in Florida Devastation

The Washington Post reports today:

Though Hurricane Charley's devastation was extensive, it may have been blunted by tough new federal regulations designed to make mobile homes less vulnerable to violent storms, experts said yesterday.

In addition, a new state building code may also have helped prevent some damage -- although probably to a lesser extent, because it took effect only two years ago.

After Hurricane Andrew devastated Florida in 1992, federal regulators began reviewing trailer park construction regulations and Florida launched a major review of the state's overall preparedness. They led to measures designed to minimize damage from future natural disasters, including the new building code intended to make structures less vulnerable to high winds. * * *

Still, the code has affected only those buildings constructed in the past two years.

Later in the report:
Another issue that the state has failed to fully address, some experts said, is the continued explosive development on the most vulnerable real estate.

"One issue in Florida is that there has been a tremendous buildup in the most at-risk areas of the state -- the east and west coasts," said Robert P. Hartwig of the Insurance Information Institute. "These are the growth areas for the state, and there is tremendous pressure to allow building there."

Posted by Marcia Oddi on Tuesday, August 17, 2004
Posted to General Law Related

Monday, August 16, 2004

Environment - Lack of Superfund Money Threatens Cleanups

The NY Times today, in a story titled "Polluted Sites Could Face Shortage of Cleanup Money," reports:

With about six weeks left in the federal government's fiscal year, dozens of Superfund sites that are eligible for cleanup money are likely to be granted nothing or a fraction of what their managers say is needed because of a budget shortfall that could exceed $250 million, according to a survey by the Democratic staff of the House Energy and Commerce Committee.

The list of sites was compiled from information provided privately by officials at the Environmental Protection Agency, according to a letter sent on Friday to Michael O. Leavitt, the agency's administrator, from Representative John D. Dingell of Michigan, the ranking Democrat on the committee.

The letter and an attached list indicate that at sites like Atlas Tack, a company that made tacks and nails in Fairhaven, Mass., Omaha Lead in Omaha and Woolfolk Chemical Works, in Fort Valley, Ga., cleanup managers are likely to fall behind in clearing toxic residue like lead particles, cyanide and arsenic in soil or groundwater.

The 8/13/04 letter referred to above (my emphasis) may be found here. Pages 6-7 list the sites by state. Indiana has one, Continental Steel: funds requested, $35 million; Funds allocatied, $0.

However, this is not new information. Stories cited in the past include this AP story in the Fort Wayne Journal Gazette, dated 4/14/04, and headlined "Superfund cleanup not easy to pay for Kokomo." Also, this AP story from early January of this year, headlined "Superfund shortfall delaying clean-ups,".

Posted by Marcia Oddi on Monday, August 16, 2004
Posted to Environmental Issues

Indiana Decisions - Court of Appeals posts four, late this afternoon

Kenton Bennett v. State of Indiana (7/19/04 IndCtApp] [Criminal Law & Procedure]
[This opinion was issued as Not for Publication 7/19/04; the docket shows "7/23/04 APPELLEE'S VERIFIED MOTION FOR PUBLICATION OF MEMORANDUM DECISION." On 8/6/04 the court granted to motion for publication.]
Baker, Judge

Appellant-defendant Kenton R. Bennett appeals his conviction for Operating While Intoxicated, a class D felony, and Driving While Suspended, a class A misdemeanor. Specifically, Bennett argues that his sentence was manifestly unreasonable. Finding no error, we affirm. * * *

In May 2003, Bennett attempted to resolve this case by entering into a plea agreement in which he agreed to plead guilty to the charges at issue here in exchange for the dismissal of the charges in the first case and an eighteen month suspended sentence. The trial court rejected the plea because the sentence was not severe enough in light of Bennetts extensive criminal record.

In October 2003, Bennett entered into a plea agreement that the trial court accepted. Pursuant to the agreement, Bennett pleaded guilty to operating while intoxicated and driving while suspended, and the State dismissed the charges that arose out of Bennetts other two arrests for operating while intoxicated. The plea agreement provided that sentencing was to be left to the discretion of the trial court.

The trial court found Bennetts prior criminal history as an aggravating circumstance. * * * The trial court found as a mitigating circumstance that Bennett had started attending a substance abuse program, but did not give much weight to that factor because he did not seek out this treatment until shortly before his plea was entered, nearly ten months after he was charged in this case. Bennett admitted to consuming alcohol on one occasion even after entering the program. The trial court imposed a three-year sentence for the operating while intoxicated conviction and a concurrent one-year sentence for the driving while suspended conviction, and Bennett now appeals. * * *

Our inquiry does not end here inasmuch as Bennett also contends that the length of his sentence was inappropriate. We note that when a defendant is sentenced in accordance with a plea agreement, he has implicitly agreed that his sentence is appropriate. Gist v. State, 804 N.E.2d 1204, 1207 (Ind. Ct. App. 2004); Mann v. State, 742 N.E.2d 1025, 1026 n. 1 (Ind. Ct. App. 2001), trans. denied. Moreover, when no term is specified in the plea bargain recommendation, sentencing falls within the ambit of the trial courts discretion upon acceptance of the agreement. State ex rel. Goldsmith v. Marion County Superior Court, Criminal Division No. 1, 419 N.E.2d 109, 114 (Ind. 1981).

Although Bennett was given the maximum sentence for each count, this was still within the purview of the plea agreement, and he may not now complain. Furthermore, Bennetts sentence is appropriate in this case. He had numerous prior convictions, his BAC was two and one-half times the legal limit when he was arrested, he knew that his license had been suspended yet continued to drive, and he continued to use alcohol after his arrest. Given these circumstances, Bennetts sentence was appropriate. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Cheryl Sanford v. Castleton Health Care Center (8/13/04) [Arbitration; Contracts; Torts; Medical Malpractice]
Bailey, Judge
[Cheryl Sanford], as Personal Representative of the Estate of Dortha Bagley (the Estate) appeals the trial courts order compelling arbitration of the Estates survival and wrongful death claims against [Castleton Health Care Center] (Castleton Center). We affirm. * * *

The Estate argues that the trial courts order compelling it to arbitration was erroneous because: (1) the Contract is an unconscionable adhesion contract; (2) the arbitration clause of the Contract conflicts with the Federal Arbitration Act; (3) Sanfords waiver of Bagleys constitutional right to a jury trial was unknowing and involuntary; and (4) Sanford, as personal representative of the Estate, was not a party, nor in privity with a party, to the Contract. We address each argument separately. * * *

[T]he Estate has failed to show that Sanford signed the Contract containing the arbitration clause unwillingly and without being legally aware of its terms. Consequently, the trial court did not err by compelling the Estate to arbitrate the survival and wrongful death claims.

Further, the amici curiae [including AARP and the National Senior Citizens Law Center] caution that the potential for abuse surrounding the inclusion of arbitration clauses in nursing home admission contracts, such as the one at issue, is great because admittees are typically older, suffer diminished physical and/or mental health, and enjoy reduced mobility. In addition, in most cases, the family members have resorted to seeking admission to the nursing home because they are no longer able to care for their loved ones. We are mindful that the decision to place a family member or loved one in a nursing home is a difficult one. We note, however, that the arbitration clause at issue does not limit the Estate, in any way, from seeking to recover for the alleged negligent acts of Castleton Center. Moreover, the arbitration agreement does not prevent admittees from challenging the validity of any of the remaining contractual provisions. Rather, the only limitation imposed on an admittee by virtue of the arbitration clause is the forums wherein the issues may be raised, i.e., mediation followed by arbitration, if necessary. * * *

Here, because the claims asserted in Count II of the amended complaint arose out of or related to the Contract or any tort claim, they are governed by the arbitration clause of the Contract. As such, regardless of whether these claims were asserted by Bagley, while alive, or the Estate, upon her death, they are not justiciable in a court of law, except as a review of an arbitral award. Accordingly, the trial court did not err when it compelled the Estate to arbitrate the wrongful death claims alleged in Count II of the amended complaint.

For the foregoing reasons, we affirm the trial courts order compelling the Estate to arbitrate its survival and wrongful death claims. Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.

Ftnote. In light of exclusive arbitration clauses, like the one at issue, we query whether qualified medical health care providers retain the ability to avail themselves of the provisions and attendant benefits of the Medical Malpractice Act, including a limitation on the amount of the providers liabilityi.e., Indiana Code Section 34-18-14-3and review of the plaintiffs claim by a medical review paneli.e., Indiana Code Section 34-18-8-4. Thus, these qualified providers need to be cognizant that, should they include these exclusive arbitration clauses in their contracts, they might be relinquishing not only their rights to a jury trial and to a broader review on appeal, but also their right to avail themselves of the Medical Malpractice Act.

David Westenberger v. Patricia Westenberger (7/27/04 IndCtApp) [Family Law]
[This opinion was issued as Not for Publication 7/27/04; the docket shows "7/28/04 APPELLEE'S MOTION TO PUBLISH."]
Barnes, Judge
David Westenberger appeals the trial courts decision that his petition to modify custody of his children should be heard in Arkansas, where the children now live with their mother, instead of Indiana. We affirm.

Issue. The sole issue is whether the trial court abused its discretion in concluding that Arkansas would be a more convenient forum to hear Davids petition to modify custody. * * *

David points to some facts that arguably weigh in favor of Indiana maintaining jurisdiction over this proceeding, such as that he did not consent to it being litigated in Arkansas, that he would wish to call a number of Indiana residents to testify on his behalf in an evidentiary hearing on the matter, and that Indiana had fairly recently been the childrens home state and that they had spent significant time in Indiana, even after formally moving to Arkansas. These facts might have supported a decision not to relinquish jurisdiction in this particular case. However, they do not invalidate the decision the trial court did make. In order to find an abuse of discretion, we must conclude that the trial courts action was clearly against the logic and effect of the facts and circumstances before it, or that it misinterpreted the law. We cannot say that the trial courts decision here meets those criteria.

Conclusion. The trial court did not abuse its discretion in concluding that Indiana was an inconvenient forum and that it would be more appropriate to litigate Davids petition to modify custody in Arkansas instead of Indiana. We affirm.
CRONE, J., and BAKER, J., concur.

Douglas M. Mitchell v. State of Indiana (8/16/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Douglas Mitchell appeals his convictions for battery with injury to a child as a Class D felony and disorderly conduct as a Class B misdemeanor. We affirm both convictions, finding that Mitchells conduct exceeded his legal authority to discipline his child; that Mitchell did not have to be asked to stop making unreasonable noise by a law enforcement officer in order to be convicted of disorderly conduct; that his constitutional right to free expression was not implicated because there was no state action; and that it was harmless error for the trial court to determine that Dr. An, Mitchells wife, could not qualify as an expert witness. * * * Affirmed.
SULLIVAN, J., and MAY, J., concur.

Posted by Marcia Oddi on Monday, August 16, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit issues two today

Earls, Fairly W. v. McCaughtry, Gary (ED Wis.)

Before BAUER, KANNE, and DIANE P. WOOD, Circuit Judges.
BAUER, Circuit Judge. This habeas corpus appeal arises from Fairly W. Earls 1999 convictions for first-degree sexual assault of a child pursuant to Wisconsin Statute 948.02. Earls appeals, claiming he was denied effective assistance of counsel in violation of his Sixth Amendment rights. We agree and remand this case to the District Court to issue Earls writ, unless the State elects to retry him within 120 days.
Richardson, Thomas v. USA (ND Ill.)
Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
PER CURIAM. * * * Richardson correctly argues that he did not procedurally default his ineffective-assistance claim because Massaro v. United States, 538 U.S. 500 (2003), holds that a federal defendant can always wait and raise ineffective-assistance claims on collateral attack. However, we nonetheless affirm the district courts denial of his 2255 motion because Richardson has failed to show that his trial counsel was ineffective.

Posted by Marcia Oddi on Monday, August 16, 2004
Posted to Indiana Decisions

Sunday, August 15, 2004

Law - Attorney sits in what remains of his Florida law office

The caption to this photo in the Washington Post today is: "David J. Migneault sits in what remains of his law office in the Professional Building in Punta Gorda. The hurricane ripped off an outside wall of the building." The photo shows him sitting at his computer in the lower righthand corner of the office building. There does not appear to be electricity. The picture illustrates the incredible violence of the storm and, perhaps, the shock of its impact.

Posted by Marcia Oddi on Sunday, August 15, 2004
Posted to General Law Related

Indiana Courts - More on federal court budget woes

A story Saturday in the Terre Haute Tribune-Star reported that: "Instead of building a new federal building in downtown Terre Haute, a chief federal judge is considering moving part of the court's responsibility to Indianapolis." More:

"Right now it is a budgetary concern," said Chief U.S. District Judge Larry J. McKinney. "The problem is to find a reasonable budgetary figure that would allow both the district and bankruptcy courts to stay in Terre Haute."

Asked if the two courts could be divided, McKinney said "that is a possibility. We are looking at everything. The courts all over the country are reassessing their budget in terms of outlying areas where we sit without a permanent judge. It is all budgetary. We are at a standstill right now in the process."

Terre Haute's federal court now operates with a part-time judge. The historic federal building at Cherry and Seventh Street has been identified as a security risk, prompting the need for a new federal court facility.

If criminal and civil cases are moved to Indianapolis, all criminal and civil trials would be set and heard in Indianapolis, McKinney said. Then the court would have to find space outside the Terre Haute federal building for the bankruptcy court.

"We're trying to balance the need for fiscal responsibility of the court with the convenience and service of the court that is now in the Terre Haute area. That balance may not be as easy as it looks," McKinney said. * * *

McKinney said there is a need for a bankruptcy court in Terre Haute. Bankruptcy cases far outnumber criminal and civil cases in Terre Haute. There were 2,356 bankruptcy petitions in 2002 and 2,460 in 2003. Through June of this year, there had been 1,239 bankruptcy petitions, according to court records.

The Terre Haute federal court oversaw 50 criminal cases in 2002 and 38 in 2003, according to court records. There have been eight criminal cases so far this year. The court oversaw 195 civil cases in 2003; 63 in 2003 and 128 cases so far this year, records show.

A proposed new federal building and courthouse, which could cost more than $16 million, would result in the judiciary paying up to $1 million annually in rent, McKinney said. The judiciary now rents its court space from the U.S. Postal Service for about $220,000 a year, McKinney said.

"Right now, we are looking at having our judicial budget the same or up just a little. In either case, we have to make cutbacks. I can't look at a budget with cutbacks and quadruple the rent for Terre Haute," McKinney said.

Federal courts are bracing for a budget crisis nationwide, said Dick Carelli, spokesman for the Administrative Office of the United States Courts.

An earlier entry on Indiana federal courthouses was published in the ILB on 6/13/04. In addition, we reported last Thursday on the NPR story titled "Federal Courts Face Budgetary Crisis."

State courthouses. Indiana state courthouses are also facing some problems. This Sunday story in the Evansville Courier&Press reports:

MOUNT VERNON, Ind. - A Posey Circuit Court judge has grown tired of waiting for county officials to make improvements to the local courthouse, so he has requested outside involvement in the matter.

Judge James Redwine has asked the Indiana Supreme Court to appoint a special judge to hear arguments for a mandate Redwine issued directing the Posey County Council and County Commissioners to include the needed funds - which could total more than $4 million - in their planning for the 2005 budget. * * *

Redwine filed an order for mandate of funds on June 2. After no action was taken by the commissioners at their most recent meeting, Redwine asked the Indiana Supreme Court to appoint a special judge for the case. No appointment has been made so far.

Indiana law provides a procedure for a mandate of funds. If a judge orders a mandate, the Indiana Supreme Court will appoint a special judge to hear the case. County officials can file a written waiver, saying they will comply with the mandate, or they can do nothing - at which time a hearing is set. * * *

Redwine's request sets the stage for what could be a costly dispute between the longtime judge and the county's two governing bodies. A similar battle in Tippecanoe County, Ind., in 2000-02 ran up $210,000 in legal fees for attorneys and court costs.

A judge at Tippecanoe County's courthouse in Lafayette, Ind., mandated that the county spend money to close most of the building's entrances to the public and install X-ray scanners and metal detectors. That dispute was declared a "moot issue" in 2002 by the Indiana Supreme Court after the county implemented most of the judge's requests following after a series of post-Sept. 11, 2001, bomb threats.

In the Posey courthouse case, the county will be responsible for paying the fees for Redwine's attorney, as well as to the law firm of McFadin Higgins & Folz, which will represent the county council, and Bamberger Foreman Oswald & Hahn, the firm representing the county commissioners.

Meanwhile, "Courthouse ills force judges to camp out" is the headline to a continuing story about problems in the Morgan Conty courthouse. Some quotes:
A mysterious smell inside the Circuit Court chambers July 28 was the first hint that something was amiss at the Morgan County Courthouse. Since then, county employees -- primarily in Craney's Superior Court 3 and Circuit Court -- have battled illness and moved to temporary quarters.

County Commissioners closed the courthouse for two days earlier this month, so state health officials could conduct air tests. Those tests revealed nothing, and the commissioners reopened the building.

State tests did rule out perchloroethylene -- or PCE -- a contaminant that has polluted groundwater south of the square where a dry-cleaning business used to be. However, that is only one of many theories circulating around the courthouse as to the cause of the problems.

Some people are convinced it is mold that developed after a sewer backup this spring. Others have blamed bats in the attic, and county officials say they'll investigate concerns that the problem might be related to recent spraying to control the bird population near the courthouse.

Other departments, including three other courts, have not felt the effects enough to relocate their operations.

Posted by Marcia Oddi on Sunday, August 15, 2004
Posted to Indiana Courts

Law - More on Bush administration regulatory policy

The Washington Post today begins a three-part series analyzing the Bush administration's regulatory policy. Today's story is headlined "Bush Forces a Shift In Regulatory Thrust: OSHA Made More Business-Friendly." As detailed within today's story, which focuses on OSHA:

The changes within OSHA since George W. Bush took office illustrate the way that this administration has used the regulatory process to redirect the course of government.

To examine this process, The Washington Post explored the Bush administration's approach to regulation from three perspectives. This article about OSHA traces the impact on one regulatory agency. Tomorrow's story will look at a lobbyist's 32-line, last-minute addition to a bill that created a tool for attacking the science used to support new regulations. Tuesday's article will document a one-word change in a regulation that allowed coal companies to accelerate efforts to strip away the tops of thousands of Appalachian mountains.

The Post also analyzed a database from the Office of Management and Budget containing the 38,000 regulatory actions considered by agencies over the past two decades.

The analysis, combined with the more detailed look at specific regulatory decisions, shows how an administration can employ this subtle aspect of presidential power to implement far-reaching policy changes. Most of the decisions are made without the public attention that accompanies congressional debate. Under Bush, these decisions have spanned logging in national forests, patients' rights in government health insurance programs, tests for tainted packaged meats, Indian land transactions and grants to religious charities.

Three entries down you will find a NY Times story, also on this topic.

[Update 8/16/04] Today's (Monday's) story is titled "'Data Quality' Law Is Nemesis Of Regulation.". A Quote:

The Data Quality Act -- written by an industry lobbyist and slipped into a giant appropriations bill in 2000 without congressional discussion or debate -- is just two sentences directing the OMB to ensure that all information disseminated by the federal government is reliable. But the Bush administration's interpretation of those two sentences could tip the balance in regulatory disputes that weigh the interests of consumers and businesses.

John D. Graham, administrator of the OMB Office of Information and Regulatory Affairs (OIRA), who has directed implementation of the Data Quality Act, said the law will keep the federal government hewing to "sound science." He said the act, which allows people and companies to challenge government information they believe is inaccurate, is equally accessible to "a wide diversity of interests, both in the business community and in the consumer, environmental and conservation communities."

But many consumers, conservationists and worker advocates say the act is inherently biased in favor of industry. By demanding that government use only data that have achieved a rare level of certainty, these critics maintain, the act dismisses scientific information that in the past would have triggered tighter regulation.

A Washington Post analysis of government records indicates that in the first 20 months since the act was fully implemented, it has been used predominantly by industry. Setting aside the many Data Quality Act petitions filed to correct narrow typographical or factual errors in government publications or Web sites, the analysis found 39 petitions with potentially broad economic, policy or regulatory impact. Of those, 32 were filed by regulated industries, business or trade organizations or their lobbyists. Seven were filed by environmental or citizen groups. Some environmental groups are boycotting the act, adding to the imbalance in its use.

Tuesday's story, the last in this three-part series, will be headlined "A Word Accelerates Mountaintop Mining." Check back here for the link. A preview:
By changing the word "waste" to "fill" in a regulation covering coal mining, Bush appointees have allowed an increase in the destruction of mountaintops in Appalachia.

Posted by Marcia Oddi on Sunday, August 15, 2004
Posted to Administrative Law & Decisions | General Law Related

Indiana Law - Corruption in Lake County "Far Too Rampant"

Today's Louisville Courier Journal has an AP story headlined "Lake County's rampant corruption is under scrutiny." Some quotes:

In 1962 then-Attorney General Robert Kennedy called Lake County one of the most corrupt in the nation. In 1992 the 7th U.S. Circuit Court of Appeals wrote in an opinion that county commissioners had a history of awarding contracts to friends for kickbacks.

Indiana Attorney General Steve Carter, a Republican who grew up in the southern part of the county, said the Lake County cases the past two years have uncovered the most widespread corruption he knows of in the last 50 years. "The corruption is just far too rampant," he said. * * *

The question doesn't seem to be so much why corruption exists in Lake County but why it proliferates.

"The whole idea of public trust doesn't exist in northwest Indiana, not just in the politician but the people who elect them," said Maurice Eisenstadt, an associate professor of political science at Purdue University Calumet in Hammond.

Posted by Marcia Oddi on Sunday, August 15, 2004
Posted to Indiana Law

Indiana Decisions - Court of Appeals affirms enhanced sentence awarded to defendant who has faced more than 400 criminal charges during the past five decades

The Fort Wayne Journal Gazette has this brief paragraph today in its "Cheers & Jeers" column:

CHEERS to the Indiana Court of Appeals for upholding the enhanced sentence awarded to Virldeen Redmon, a resident of Madison County who has faced more than 400 criminal charges during the past five decades. Redmon had appealed his 17-year aggregate sentence for a conviction of drunken driving while he was on a permanently suspended license.
This decision has not been posted on the Court's website. A check of the Clerk of the Court's online docket discloses two appellate cases involving Virldeen Redmon. In the first, an opinion was issued by the Court of Appeals 10/27/97, affirming the trial court, and denominated "Not for Publication."

In the second case, the one refered to by the Fort Wayne paper, the record shows that a decision by Judge Mathias, with Judges Barnes and Crone concurring, was issued 8/11/04, and denominated "Not for Publication."

[Update 8/15/04] A friend, Ed Feigenbaum of Indiana Daily Insight, who picked up a paper copy of the opinion Thursday from the Clerk's office, has faxed me a copy: Virldeen Redmon v. State of Indiana (8/11/04 IndCtApp - NFP).

Posted by Marcia Oddi on Sunday, August 15, 2004
Posted to Indiana Decisions

Saturday, August 14, 2004

Law - Out of Spotlight, Bush Overhauls U.S. Regulations

"Out of Spotlight, Bush Overhauls U.S. Regulations" is the headline to this lengthy story that begins on the front page of today's NY Times. A quote:

Allies and critics of the Bush administration agree that the Sept. 11 attacks, the war in Afghanistan and the war in Iraq have preoccupied the public, overshadowing an important element of the president's agenda: new regulatory initiatives. Health rules, environmental regulations, energy initiatives, worker-safety standards and product-safety disclosure policies have been modified in ways that often please business and industry leaders while dismaying interest groups representing consumers, workers, drivers, medical patients, the elderly and many others.

And most of it was done through regulation, not law - lowering the profile of the actions. The administration can write or revise regulations largely on its own, while Congress must pass laws. For that reason, most modern-day presidents have pursued much of their agendas through regulation. But administration officials acknowledge that Mr. Bush has been particularly aggressive in using this strategy.

The Times article also has two interesting graphics. This one, which is quite astonishing, is labeled "Calculating the Cost of New Regulation" and explains:
The Bush administration has imposed lower costs on industry through regulation than any other administration since the government began keeping records in 1987. While some of the costs of regulation are borne by state and local governments, about 90 percent of the burden falls on private companies.
The graphic compares each year of the terms of the past four presidents, from 1997 to 2003, via lines in a bar graph. The source cited is the OMB.

This one is titled "Regulatory Proposals" and lists "some examples of regulatory actions proposed by the Bush administration."

Posted by Marcia Oddi on Saturday, August 14, 2004
Posted to General Law Related

Friday, August 13, 2004

Indiana Decisions - Four today from 7th Circuit

Lamers Dairy Inc v. USDA (ED Wis.)

Before RIPPLE, ROVNER and DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Lamers Dairy (Lamers) sought an exemption from Milk Marketing Order No. 30, promulgated under the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. 601 et seq. After the Secretary of the United States Department of Agriculture (the USDA) denied the petition in a final administrative order, Lamers sought review in the district court. The USDA counterclaimed for enforcement of the Secretarys decision and for a judgment against Lamers in an amount equal to the unpaid monetary assessments due under the terms of the marketing order. The district court granted summary judgment to the USDA on Lamers complaint and on the USDAs counterclaim. It ordered further proceedings on the amount due. Subsequently, the district court denied a motion for reconsideration by Lamers and entered an amended judgment awarding the Government $850,931.26. Lamers appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Bressner, Kermit J. v. Ambroziak, Shrilee (ND Ill.)
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Over twenty years ago, Kermit J. Bressner sold his business to Dennis Ambroziak for cash and a note for $342,000 for the balance due. * * *

Dennis Ambroziak owes Kermit Bressner a significant sum of money. The facts we have been presented (which we must here accept as true) show that Dennis has manipulated his way out of paying this debt for two decades. We, like the district court, do not find his conduct admirable. The district court did not err, however, in dismissing the Bressners complaint. Further, the district court did not abuse its discretion in denying a post-judgment motion to amend. The district court is AFFIRMED.

Leyva, Crisanto v. Ashcroft, John [Appeal from the Board of Immigration Appeals]
Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Crisanto Leyva, an illegal alien, appeals from the Attorney Generals final judgment to deny his application for cancellation of removal. Because we lack jurisdiction over this appeal, we dismiss.
Snyder, James R. v. Nolen, Jack T. (SD Ill.)
Before EASTERBROOK, RIPPLE and KANNE, Circuit Judges.
PER CURIAM. James Snyder filed this action pursuant to 42 U.S.C. 1983 against Jack Nolen, Clerk of the Circuit Court of Saline County, Illinois. The complaint alleged that Mr. Nolen had violated Mr. Snyders constitutional right of access to the courts when Mr. Nolen prevented Mr. Snyder from prosecuting a domestic relations action for dissolution of marriage and a temporary restraining order in the state court. The district court dismissed Mr. Snyders complaint on the alternate grounds that it did not state a constitutional claim, that Mr. Nolen was entitled to absolute quasi-judicial immunity and that Mr. Nolen was entitled to qualified immunity. Mr. Snyder appealed, and this court now affirms.

It is the unanimous opinion of the court that Mr. Nolen is not protected by absolute quasi-judicial immunity. Nevertheless, it is the opinion of the majority of the panel that Mr. Snyder has not stated a claim for a constitutional violation of right to access to the courts; the individual judges, however, differ with respect to how they arrive at that determination. A third member of the panel is of the opinion that Mr. Snyders complaint states a constitutional violation and that Mr. Nolen is not entitled to qualified immunity on that claim.

This per curiam opinion sets forth the procedural background of the case and articulates the courts holding with respect to the issue of absolute quasi-judicial immunity. The separate opinions of the panel majority follow, as does that of the panels dissenting member.

Judge Easterbrook, "concurring in part and concurring in the judgment,' begins at p. 21; Judge Kanne, also "concurring in part and concurring in the judgment,' begins at p. 24; Judge Ripple, dissenting, beings at p. 27. The opinion is 43 pages long, was argued Sept. 20, 2002, and decided Aug. 13, 2004. I'm sure there is an interesting history to this case, but I don't know it.

Posted by Marcia Oddi on Friday, August 13, 2004
Posted to Indiana Decisions

Environment - Stories today

Wetlands. Yesterday I reported on a Washington Post story about an new report charging "The administration has allowed developers to drain thousands of acres of wetlands under a policy adopted last year". Today I have a link to the report; access it here.

RCRA. In May the Post ran a story on an EPA rule that allegedly favored a Bush donor. See the ILB entry here. Today the Post has another story, reporting:

Four Democratic members of Congress have requested an investigation into the Environmental Protection Agency's writing of a hazardous-waste rule that would benefit industrial laundries, including a company controlled by the family of one of President Bush's top fundraisers.
Stormwater. Two stories yesterday on stormwater and smaller Indiana communities. The Linton Daily Citizen reports here the Bloomfield Town Council had received an "early warning notification" from the Indiana Department of Environmental Management "alerting the local officials that the amount of runoff is approaching unsatisfactory levels. The level has not exceeded the treatment plant's capacity, but during heavy storms is putting a strain on it. * * * [Street/Sewer Department head Don Lawless] said the sewer system operator was aware of the problem and would continue to monitor it as requested by IDEM."

Meanwhile, the Bedford Times-Mail had an opinion piece headlined "Mitchell needs to heed IDEM." It begins:

Officials in Mitchell would be wise to heed the Indiana Department of Environmental Management's warning that says the city's wastewater treatment plant is reaching capacity.

Mitchell Mayor Morris "Butch" Chastain is having trouble accepting the IDEM numbers that say the treatment system operated at 90 percent in 2002, at 101 percent in 2003 and this year, so far, is at 97 percent.

Chastain's skepticism is not unfounded. He said that when he took office in 2000, he had the capacity tested because Spring Mill State Park wanted to hook on, and at the time, capacity was running at 45 to 48 percent. If Spring Mill had hooked on, the numbers would have gone high, Chastain said. But the park didn't go that route and no other major hook-ups were added. Chastain, consequently, said he just can't imagine that the numbers have jumped so dramatically in only four years.

While Chastain has sound reasoning for questioning the numbers, it still is critically important that the city administration pay close attention to what IDEM Deputy Commissioner Timothy Method called an early warning notification. Method said last week in Mitchell, "The early warning notification is intended to alert municipalities to potential problems and provide a period of time to evaluate conditions, plan for possible solutions and arrange funding in the event capital improvements are required."

Waste tires. Terre Haute's Action News 10 has an interesting story about the dangers of a waste tire dump and the costs of cleaning it up.

Posted by Marcia Oddi on Friday, August 13, 2004
Posted to Environmental Issues

Law - Grandparents' rights in Illinois

There have been a number of Indiana decisions on grandparents' visitation rights and I plan to do an article on this at some point in the near future. For instance, in June there was a much-reported Indiana Court of Appeals decision denying visitation rights to a step-grandfather. See ILB entry here. A week or so before that opinion, another appeals court ruling permitted grandparent visitation in different circumstances. See entry here. In that decision, the Court of Appeals quotes the Indiana law:

Ind. Code 31-17-5-1 (1998) governs grandparent visitation rights, and provides that: (a) A childs grandparent may seek visitation rights if: (1) the childs parent is deceased; (2) the marriage of the childs parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock. (b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the childs father has not established paternity in relation to the child.
Further, I recall reporting on a number of decisions from 2003 (that is why the article is planned). All this is an introduction to a story today in the Chicago Sun-Times about a new Illinois law. The story, headlined "New law enables grandparents to file for visitation rights," reports:
Grandparents in Illinois have an explicit legal right to file for visitation rights to their grandchildren under a new law signed Thursday. Sen. John Cullerton (D-Chicago), a co-sponsor of the bill, said Illinois was the only state without a grandparent visitation law.

"This law puts the best interest of children first and helps clear a path for grandparents to see their grandchildren,'' said Gov. Blagojevich in signing the measure. According to Blagojevich's office, grandparents can now ask judges for visitation if the parent has made "an unreasonable denial of visitation'' and one of the following conditions exist:

* A parent is incompetent, deceased or has been sentenced to jail for more than one year.

* The parents are divorced or separated for three months and one parent does not object to visitation.

* The child is illegitimate, the parents are not living together and the grandparent is related to the mother.

* The grandparent is related to the father and paternity has been established.

* * * In the 1970s, state legislatures began to pass grandparent visitation statutes, partly due to lobbying efforts of senior citizen groups. Those laws came under greater scrutiny after a 2000 U.S. Supreme Court decision on a Washington state case that overturned broad child visitation rights for grandparents. That decision was based on lack of standards in the Washington state law. Under the new Illinois law, standards are spelled out that will survive court tests, Blagojevich's office said.

Posted by Marcia Oddi on Friday, August 13, 2004
Posted to General Law Related

Law - More on Poletown overturn

"A Michigan Supreme Court Decision Supports Private Landowners' Rights:
Its Reasoning and Possible Nationwide Ramifications,"
is the title to this analysis piece by Professor Marci Hamilton, Benjamin N. Cardozo School of Law, Yeshiva University.

Background: The Indiana Law Blog posted this entry titled "Law - Michigan Supreme Court Strikes Down 1981 Poletown Decision," on July 31st. And here is the link to the 7/30/04 Michigan Supreme Court decision reversing Poletown: County of Wayne v. Hathcock.

Posted by Marcia Oddi on Friday, August 13, 2004
Posted to General Law Related

Thursday, August 12, 2004

Indiana Decisions - Is the election of county commissioners in Washington County, Indiana illegal?

Is the election of county commissioners in Washington County, Indiana illegal? That was the question posed in a federal suit filed in May by a resident of Salem, Indiana (located in Washington County). Access the May 9th Indiana Law Blog entry here. According to an Indianapolis Star story published at the time: "Mead cites an Indiana law that required all counties to perform redistricting in 2001. The suit claims that Washington County has not done so and that the populations of its districts are not equal. The commissioners said redistricting is not required for Washington County."

The answer, according to a ruling by federal district court Judge David F. Hamilton, Angela Mead v. Washington County Commissioners, issued 8/2/04, is that the election is valid:

Plaintiff Angela Mead is a voter in Washington County, Indiana. She alleges that the defendants, the County Commissioners of Washington County, Indiana, have violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as well as Indiana law, by failing to adopt proper election districts for the commissioners themselves and for the county council. Mead alleges that Washington Countys three county commissioner districts have a total deviation of 90.93 percent between the most and least populated districts. She alleges that Washington Countys four single-member county council districts were also unequal with a total deviation of 50.30 percent. According to Mead, both sets of districts violate the one person, one vote principle outlined in Reynolds v. Sims, 377 U.S. 533 (1964). She seeks to have both the county commissioner and county council districts declared unconstitutional and redrawn. She also alleges that the county commissioners failed to comply with state laws requiring periodic redistricting and districts of nearly equal populations. * * *

[Mead] alleges only that the district lines have not been redrawn at all and that the districts have unequal populations. However, this practice does not violate the one person, one vote principle under the Equal Protection Clause.

This court has supplemental jurisdiction over Meads state law challenge to the county commissioner districts. Her challenge is based on a simple misreading of the applicable statute. The requirement in Indiana Code 36-2-2-4(d) that county commissioner districts contain, as nearly as is possible, equal population, applies only to counties with populations of more than 200,000 and less than 300,000 or of more than 400,000 and less than 700,000. Because the state law claim is clearly without merit, the court can spare state courts the trouble of deciding the question by exercising supplemental jurisdiction under 28 U.S.C. 1367, and dismissing the claim. See Van Harken v. Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997).

Posted by Marcia Oddi on Thursday, August 12, 2004
Posted to Indiana Decisions

Indiana Decisions - Two More Today from the 7th Circuit (including the first Blakely decision impacting an Indiana federal district court ruling)

The 7th Circuit website has posted two additional opinions today, in addition to the three in my earlier entry. The second is a Blakely opinion.

LIAN, YI-TU v. ASHCROFT, JOHN (On Petition for Review of an Order of the Board of Immigration Appeals)

Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Lian, a Chinese citizen, asks us to set aside an order issued by an immigration judge and affirmed without opinion by the Board of Immigration Appeals removing him to China. He claims that sending him back to China would violate Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (1984). * * *

The order of removal is vacated and the case remanded. As in a number of recent cases, the inadequate performance by the immigration judge leads us to recommend that the case be reassigned to another immigration judge. E.g., Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir. 2004); Niam v. Ashcroft, supra, 354 F.3d at 660-61; Arulampalam v. Ashcroft, 353 F.3d 679, 688-89 (9th Cir. 2003).

USA v. SHEARER, KENNETH (ND Ind., Judge Lee)

Before FLAUM, Chief Judge, and DIANE P. WOOD and EVANS, Circuit Judges.
FLAUM, Chief Judge. On June 20, 2002, Kenneth Shearer was convicted of dealing in display fireworks without a license issued by the Bureau of Alcohol, Tobacco & Firearms (ATF), placing false labels on cases of display fireworks, and knowingly receiving display fireworks in interstate commerce. He now appeals his conviction and sentence. For the reasons stated herein, we affirm the judgment of conviction and remand the case for resentencing. * * *

Shearer next contends that his sentence was improper. Specifically, Shearer challenges several enhancements to his sentence based upon the district judges factual findings that: (1) Shearers offense involved more than 1,000 pounds of explosive materials; (2) Shearer was the organizer or leader of a criminal organization that involved five or more participants or was otherwise extensive; (3) Shearer used a minor to commit the offense; and (4) Shearer committed perjury by denying virtually every fact material to his guilt at trial. Additionally, Shearer believes that he merited a sentence reduction for acceptance of responsibility.

Although such challenges to the application of the Sentencing Guidelines would have presented us with little difficulty a few weeks ago, the Supreme Courts decision in Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004) and our reading of Blakely in United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004), demonstrate that the constitutional validity of the Guidelines is in doubt. See also 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 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 Booker, we must remand this case to the district court for resentencing.

Note: Unless I've lost track, this is the first Indiana federal district court sentencing ruling sent back by the 7th Circuit based on "Blakely as interpreted by Booker." Interestingly, another 7th Circuit panel today affirmed a sentencing case [USA v. Garcia-Vasquez, Miguel (ED Wis.) - scroll two entries down] with no mention of Blakely. There were enhancements, albeit based on prior criminal history: "The sentencing guidelines provide that a defendants criminal history score is to be increased by two points if he 'committed the instant offense while under any criminal justice sentence ....' U.S.S.G. 4A1.1(d). The district court added two points to Garcia-Vasquezs criminal history score because of the outstanding warrant for his California probation violation."

To quote Judge Posner from Booker: "(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." [my emphasis]

The Shearer panel today reiterates the Booker statement that the constitutional validity of the Guidelines is in doubt. The Garcia-Vasquez panel does not, and in fact, includes no reference to Blakely/Booker. For the sake of orderliness during this period of disorder, I'd like the Garcia-Vasquez panel to have noted, at least in a footnote, that the reliance on Guideline references will not stand in the event the Guidelines are found to be invalid in their entirety (i.e not severable) rather than invalid only insofar as determination of factual issues relating to enhancements is involved.

Posted by Marcia Oddi on Thursday, August 12, 2004
Posted to Indiana Decisions

Indiana Decisions - Five today from Court of Appeals

Mark Martin v. State of Indiana (8/12/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge

Appellant, Mark Martin, challenges the trial courts revocation of his probation. Upon appeal, Martin presents three issues for our review, one of which we find dispositive: whether the evidence is sufficient to support the trial courts revocation of his probation.
We reverse.
Howard County Board of Commissioners v. Kellie Lukowiak (8/12/04 IndCtApp) [Opinion on Petition for Rehearing]
Sullivan, Judge
Kellie Lukowiak brings this petition for rehearing, requesting that we clarify our opinion to specifically permit recovery for pain and suffering and personal injuries. We grant this petition for rehearing solely for the purpose of clarifying what damages Kellie may seek to recover. * * *

[W]e grant the Petition for Rehearing for the sole purpose of clarifying that the notice given to the Board was adequate to advise that a medical expense claim with regard to Kellies personal injuries was probable. The notice, however, was not adequate for purposes of permitting personal injury damages in excess of medical expenses.
ROBB, J., and HOFFMAN, Sr.J., concur.

Donnie Ray Dunaway, et al. v. Allstate Insurance Company (8/12/04 IndCtApp) [Insurance]
Najam, Judge
[The Dunaways] appeal the trial courts entry of summary judgment in favor of Allstate Insurance Company (Allstate) and present the following issues for review: 1. Whether the trial court properly granted summary judgment in Allstates favor on the Dunaways breach of contract claim based on the policys one-year limitations clause. 2. Whether the one-year limitations clause bars the Dunaways claims for breach of the duty of good faith and unjust enrichment. * * *

Here, we cannot conclude as a matter of law that Allstate did nothing to cause the Dunaways to reasonably believe that Allstate would not insist upon compliance with the limitations provision. Rather, given the fact that Allstate failed to comply with certain time provisions in the policy, whether it was reasonable for the Dunaways to believe that Allstate would not require strict compliance with the one-year limitations provision is a question of fact that must be determined by the trier of fact. Consequently, whether the Dunaways breach of contract claim is barred by the limitations clause is an issue left for another day. We conclude that the trial court erred when it granted Allstates motion for summary judgment on the Dunaways breach of contract claim. * * *

We conclude that there is a genuine issue of material fact whether Allstate impliedly waived reliance on the one-year limitations clause. Further, even if Allstate did not waive reliance on that clause, the limitations clause does not bar the Dunaways tort claim for breach of the duty of good faith. However, the Dunaways have waived their arguments regarding their claim for unjust enrichment. Therefore, we affirm the trial courts summary judgment on the unjust enrichment claim and reverse summary judgment on the breach of contract and the duty of good faith claims. We remand for further proceedings consistent with this opinion. Affirmed in part, reversed and remanded in part.
KIRSCH, C.J., and RILEY, J., concur.

Brian Chism v. State of Indiana (8/12/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Brian Chism appeals the trial courts finding that he violated his probation and the modification of the conditions of his probation. Chism raises three issues, which we consolidate and restate as: Whether the trial courts findings that Chism violated his home detention by being absent from his home without permission and by failing to pay home detention fees are supported by substantial evidence; and Whether the trial court abused its discretion by modifying the conditions of Chisms probation to allow the use of monitoring by a global positioning satellite (GPS) system. * * *

We recognize that the trial court may modify a probationers conditions of probation as a result of violations. See Ind. Code 35-38-2-3(g). However, because the trial court did not have the statutory authority to order an offender to be monitored by the GPS system and because Chism did not qualify as a violent offender, the trial court abused its discretion by modifying Chisms conditions of probation to include monitoring by the GPS system.
For the foregoing reasons, we affirm the trial courts findings that Chism violated his probation, reverse the trial courts modification of Chisms probation to include monitoring by the GPS system, and remand for resentencing on Chisms probation violations. Affirmed in part, reversed in part, and remanded.
DARDEN, J. and ROBB, J. concur

Julie Ann Lovell v. State of Indiana (8/12/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Julie Lovell appeals her convictions for dealing in methamphetamine as a class B felony and possession of chemical reagents or precursors with intent to manufacture as a class D felony.Lovell raises four issues, which we partially consolidate and restate as: Whether the trial court abused its discretion by admitting evidence obtained as a result of the police search of Lovells garbage bags into evidence; Whether the trial court properly denied Lovells motion for judgment on the evidence; and Whether the evidence is sufficient to sustain Lovells convictions for dealing in methamphetamine as a class B felony and possession of chemical reagents or precursors with intent to manufacture as a class D felony. We affirm in part and reverse in part. * * *
DARDEN, J. and ROBB, J. concur

Posted by Marcia Oddi on Thursday, August 12, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit issues three today

USA v. Garcia-Vasquez, Miguel (ED Wis.)

Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Mexican citizen Miguel Garcia-Vasquez pleaded guilty to illegally reentering the United States after having been deported, 8 U.S.C. 1326, and was sentenced to 57 months imprisonment. The district court added two criminal history points because it found that Garcia-Vasquez committed the offense while under a criminal justice sentencespecifically an unexecuted 1998 California warrant for a probation violation. See U.S.S.G. 4A1.1(d). Garcia-Vasquez challenges the addition of the two criminal history points, arguing that California authorities were unreasonably dilatory in executing the warrant. We affirm. * * *

The sentencing guidelines provide that a defendants criminal history score is to be increased by two points if he committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. U.S.S.G. 4A1.1(d). The district court added two points to Garcia-Vasquezs criminal history score because of the outstanding warrant for his California probation violation. * * *

The district court properly imposed the two criminal history points under 4A1.1(d). Garcia-Vasquezs sentence is AFFIRMED.

Hall, Christopher S. v. Bennett, Allen (SD Ind., Chief Judge McKinney)
Before CUDAHY, RIPPLE, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. After receiving a severe electrical shock while working as an electrician at the Correctional Industrial Facility in Pendleton, Indiana, inmate Christopher Hall sought to hold supervisors Stan Russell and Allen Bennett liable under 42 U.S.C. 1983 and state law. Concluding that Hall lacked evidence that the defendants had knowingly placed him in a dangerous situation, the district court granted summary judgment on the federal deliberate-indifference claim and then relinquished supplemental jurisdiction over the state-law negligence claim. We vacate the district courts judgment and remand for further proceedings. * * *

In sum, we conclude it was error to grant summary judgment for the defendants on this record. Accordingly, we VACATE the district courts grant of summary judgment and REMAND for further proceedings. In view of our resolution of the deliberate-indifference claim, our remand necessarily encompasses Halls state-law negligence claim as well.

Brooks, Eddie L. v. McCaughtry, Gary R. (ED Wis.)
Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.
POSNER, Circuit Judge. Eddie Brooks was convicted in a Wisconsin state court of first-degree murder of a policeman, and related crimes, and was sentenced to life in prison plus 109 years. After exhausting his state remedies in State v. Brooks, 607 N.W.2d 290 (Wis. 1999), he sought federal habeas corpus, lost in the district court, and appeals, contending that the Wisconsin trial court deprived him of his federal constitutional right to represent himself. Faretta v. California, 422 U.S. 806 (1975). * * * Affirmed.

Posted by Marcia Oddi on Thursday, August 12, 2004
Posted to Indiana Decisions

Environment - Recent stories

Air pollution. The Evansville Courier&Press has an editorial today on the Mount Carmel (Illinois) / (Indiana) Gibson Generating Plant situation covered here in a number of earlier entries. Titled "The Issue: Mount Carmel case demonstrates flaw in sanctioning individual counties. Our View: Pollution does not recognize political boundaries," the editorial begins:

Nowhere is the flaw in the Environmental Protection Agency's system of sanctioning individual counties for clean-air violations better demonstrated than in the case of Cinergy/PSI and Mount Carmel, Ill. What this situation exposes is the obvious: that pollution does not respect political boundaries. * * *

Earlier this summer, the Gibson Power Plant, owned by Cinergy Power Generation Services and PSI Energy, began emitting bluish clouds of sulfuric-acid gas that drifted across the Wabash River and into Mount Carmel. As a result, citizens in the Illinois town suffered burning eyes, sore throats and breathing problems.

This occurred because the company had installed a device to reduce nitrogen oxide emissions, but instead, the plant began producing sulfur trioxide. This turned into an acidic mist when it mixed with moisture in the atmosphere, and drifted from Indiana to Illinois. * * *

As we said, what should not be lost here is how this situation demonstrates that pollution honors no boundaries. County and state lines mean nothing to pollution and can do nothing to stop its movement. Yet, were EPA procedures applied to this situation, as they are to ozone regulation, the Illinois city of Mount Carmel might be penalized.

Superfund Site Management. The Lafayette Courier and Journal has an intereesting story today on the continuing costs of a Superfund landfill that begins:
The board in charge of the Superfund site at the former Tippecanoe County Sanitary Landfill rehired for another two years the environmental company that maintains and operates the site.

Keramida Environmental, Inc. has overseen remedying the polluted, 79-acre landfill site, at 2801 N. Ninth St., since the Tippecanoe County Local Environmental Response Financing Board, or TERF, was created in 1998. Since 2002, Keramida has been in charge of channeling and burning methane gas and collecting ad disposing of contaminated rainwater known as leachate.

"You have done a fine job," said TERF board member Dennis Probasco, who was impressed with how well the collection operation worked even during intense rainfalls this summer. By design, the site now includes a wetlands area that is clean enough to be home to an increasing number of beavers, birds, rabbits and deer.

Wetlands. The Washington Post has a story today that begins:
The administration has allowed developers to drain thousands of acres of wetlands under a policy adopted last year, according to a report issued yesterday by four environmental groups.

The study, based on Freedom of Information Act requests, represents the first accounting of how the administration's interpretation of a 2001 Supreme Court decision affected isolated wetlands in states from New Mexico to Delaware. The court ruled that isolated wetlands that do not cross state boundaries and are not navigable do not enjoy the same federal protections as other wetlands just because they serve migratory birds.

However, I have been unable to locate the report cited.

Posted by Marcia Oddi on Thursday, August 12, 2004
Posted to Environmental Issues

Indiana Decisions - More on Lake County election ruling

"Election board seeks Supreme Court rehearing: County wants justices to clarify issues with absentee ballots," reports the Munster Times today. More:

CROWN POINT -- Lake County's election board decided Wednesday to delve into East Chicago's election fray.

The board voted unanimously to petition the Indiana Supreme Court for a rehearing of its ruling that ordered a new 2003 primary mayoral election in East Chicago.

The Board of Elections and Registration is not challenging the high court's Friday decision. Instead, board attorneys want a technical clarification on how to handle a specific type of absentee ballot.

"We need some guidance," said James Wieser, Democratic attorney for the board. "But we will honor the Supreme Court's decision, and respect the decision, and we will go forward (with the new election)." * * *

At issue in the election board's petition is how Lake County should handle voters who cast absentee ballots because they expected to be gone on election day, but ended up being present.

In LaPorte County Judge Steven King's original trial court ruling, he cast aside 55 such ballots as fraudulent because he said voters who did that made a "false representation." Lake County's election board appealed King's decision, and said those votes should be counted.

The Supreme Court did not rule on that portion of King's decision, saying that its determination "does not rest on the mathematical comparison of votes invalidated to Pastrick's final victory margin."

But in the dissenting opinion, Justice Theodore Boehm said King erred in discarding the 55 votes, and that as long as every voter only votes once, he or she should not be "disenfranchised."

"In today's commercial world, many people are unsure of their schedules and vote absentee to be sure they exercise their franchise, even if they know they may indeed be present on election day," Boehm wrote.

Wieser told the board they needed a definitive answer, either way. "We need to know what to do, as a practical matter, for all 92 (Indiana) counties," he said. "We need to know what to do in the future."

The Gary Post-Tribune also reports today:
While Special Judge Steven King invalidated 155 absentee ballots after finding pervasive fraud, tampering or misconduct in the election, Wieser said county officials were unable to identify any indications of malfeasance in 55 cases.

These were cases where the voters simply said they needed an absentee ballot because they wouldnt be in the county on election day, then it turned out they were here, Wieser said.

We need to find out from the court what our responsibility will be in future elections in terms of making sure these people arent in the county on the day of the election after they request absentee ballots for this reason. Every county around the state is watching to see what happens here.

Here is the initial ILB entry on the East Chicago (Lake County) decision: Pabey v. Pastrick.

Posted by Marcia Oddi on Thursday, August 12, 2004
Posted to Indiana Decisions

Law - Important NPR Story Today on Funding Federal Courts

NPR's Nina Totenberg had an important story today on Morning Edition titled "Federal Courts Face Budgetary Crisis." The description:

The nation's federal court system is facing severe budget cuts that may hinder its ability to function properly. The courts' shrinking funding comes as caseloads soar.
Listen to it here.

Posted by Marcia Oddi on Thursday, August 12, 2004
Posted to General Law Related

Wednesday, August 11, 2004

Indiana Decisions - Two Posted by Court of Appeals Today

Lawrence Primus v. State of Indiana (8/11/04 IndCtApp) [Criminal Law & Procedure]
Kirsch, Chief Judge

Lawrence Primus brings this interlocutory appeal of the trial courts denial of his motion to suppress, raising the following issue for review: whether the trial court erred in determining that the drug evidence was admissible because it was the result of a consensual search where his roommate, who was at a different location, gave consent for the search but he did not. * * *

Primus makes much of the fact that he was located at the search scene, while Labroi was not. He apparently contends that his right to refuse consent, as the party present, should outweigh Labrois right to give consent. We acknowledge that our supreme court has stated that the consent of one who possesses common authority over a premises or its effects is valid as against the absent, non-consenting person who shares the authority. Overstreet v. State, 783 N.E.2d 1140, 1159 (Ind. 2003), cert denied, 124 S. Ct. 1145 (2004); Trowbridge, 717 N.E.2d at 144 (emphasis added). However, ones authority to give consent is not dependent upon ones location. Either a party has authority to consent to a search, through common control of a premises, or he or she does not. The physical location of the person giving consent is irrelevant. We can envision circumstances in which the location of the consenting party may be of some relevance to the question of apparent authority. That is, where the consenting party is located may be a circumstance that tends to support a reasonable belief that the party has authority to consent to a search. However, here, Labroi, as a resident of the house with common authority over it, had actual authority to consent to the search, and the respective locations of Labroi and Primus are of no consequence. Affirmed.
NAJAM, J., and RILEY, J., concur.

Bruce Walker v. State of Indiana (7/20/2004 IndCtApp - May originally have been NFP) [Criminal Law & Procedure]
Mathias, Judge
Bruce Walker (Walker) was convicted of Class D felony operating while intoxicated, Class A misdemeanor resisting law enforcement, and Class B misdemeanor public intoxication in Marion Superior Court. Walker appeals, presenting the following restated issues: Whether Walker received effective assistance of counsel; and Whether sufficient evidence supports Walkers resisting law enforcement conviction.

Concluding Walker received effective assistance of counsel but the State failed to prove Walker resisted law enforcement, we affirm in part, reverse in part, and remand. * * *

Crimes are statutory and must be proved according to their elements. Our conclusion that the State failed to prove the law enforcement officer element of resisting law enforcement does not mean a park ranger is not a law enforcement officer as a matter of law. We stress this is an issue of the evidence presented, not an issue of fact or law. In future trials, the State may present evidence indicating a park ranger is considered an adjunct of a law enforcement agency. However, such evidence was not presented in the case at bar, and Walkers resisting law enforcement conviction must be vacated.

Conclusion. Walker received effective assistance of counsel, but the State failed to present sufficient evidence to prove he resisted law enforcement. Affirmed in part, reversed in part, and remanded.
BARNES, J., and CRONE, J., concur.

Posted by Marcia Oddi on Wednesday, August 11, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit Posts Four Today

Ballinger, Jay S. v. USA (SD Ind., Judge Barker)

Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. From 1994 to 1999 Jay Scott Ballinger and his girlfriend Angela Wood traveled around the United States setting at least 26 churches on fire in eight different states. Ballinger was ultimately charged with offenses in 11 different federal districts and his appointed counsel negotiated a plea agreement in which all of the charges except those from the Northern District of Georgia were transferred to the Southern District of Indiana. In July 2000 Ballinger pleaded guilty to six counts of arson under 18 U.S.C. 844(i), 20 counts of intentionally destroying religious real property under 247(a), two counts of conspiracy to commit arson, and two counts of the use of fire in the commission of a felony, 844(h). He did not appeal his conviction but instead filed a motion under 28 U.S.C. 2255 arguing that his plea was involuntary and that his attorney was ineffective. The district court concluded that Ballinger procedurally defaulted those arguments by failing to raise them in a direct appeal. Although the court was correct that Ballinger procedurally defaulted his due process argument, Ballinger has not procedurally defaulted his claim of ineffective assistance of counsel. Since the district courts decision, the Supreme Court has clarified that claims of ineffective assistance of counsel can be raised for the first time in a 2255 motion. We therefore remand this case to the district court so that Ballinger may develop the record and the district court may decide his claim of ineffective assistance in the first instance.
McPherson, Leslie D. v. City of Waukegan (ND Ill.)
Before CUDAHY, POSNER and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. While she was employed by the City of Waukegan (the City), Leslie McPherson alleges that she was sexually harassed, battered and subjected to intentional infliction of emotional distress by her supervisor, Randall Copenharve, and that the City forced her to resign. McPherson appeals the district courts grant of summary judgment on her Title VII claim of sexual harassment against the City, her claims that the City was liable for Copenharves torts under a respondeat superior theory and her demand that the City indemnify any judgment against Copenharve. After considering all of the evidence in the light most favorable to McPherson, we affirm.
Sims-Madison, Johnni v. Inland Paperboard (SD Ind., Judge Young)
Before CUDAHY, RIPPLE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Johnnie Sims-Madison is an African-American woman who was employed at Inland Paperboard and Packagings Evansville, Indiana, plant until early 2000, when she was fired for fighting with another employee. Sims-Madison brought a Title VII action, and the district court granted summary judgment to Inland. At the same time, the district court also said that it was enforcing a purported settlement agreement the parties had previously reached. Sims-Madison appeals, and we vacate and remand.
Hegna, Edwena A. v. Islamic Republic (ND Ill.)

"Having concluded that the Hegnas forfeited any right that they may have had under 201(a) of TRIA to attach the Chicago properties in aid of execution of their judgment, we need not reach the issue of whether those properties were subject to attachment as 'blocked assets' within the meaning of 201(d)(2) of TRIA."

Posted by Marcia Oddi on Wednesday, August 11, 2004
Posted to Indiana Decisions

Indiana Decisions - News today

Several stories today on recent Indiana decisions.

The Indianapolis Star and a number of other news sources report on the Court of Appeals decision yesterday that:

threw out the murder conviction and 195-year prison sentence of a former State Police trooper found guilty of killing his wife and two children in 2000.

David R. Camm, 40, can be retried for the crimes, the three appeals court judges said Tuesday. They ruled that extensive testimony about Camm's extramarital affairs tainted the jury, had virtually nothing to do with the crime and should have been excluded. The court reiterated that evidence of someone's extramarital affairs isn't always admissible at trial.

See also the WNDU16 (South Bend) story here and the News 15 (Ft. Wayne) story here. The decision is David Camm v. State of Indiana (8/10/04 IndCtApp). Access the ILB entry here (2nd item).

"Police absolved in killings by man wrongly freed: St. Joseph County police not liable for crimes of suspect who didn't post bond, court rules," is the headline to this story today in the Star. Some quotes:

In what the Indiana Court of Appeals deemed a "tragic mistake," the St. Joseph County Police Department let Phillip Stroud out of jail without posting bond because someone typed the wrong information into a computer.

Two months later, in September 2000, Stroud killed three construction workers. He is now on Death Row.

Tuesday, a panel of the appeals court unanimously ruled that the Police Department cannot be held liable for mistakenly releasing Stroud because it is protected under government immunity laws.

The decision is St. Joseph County Police Department v. Estate of Wayne Shumaker, et al. (8/10/04 IndCtApp). Access the ILB entry here (3rd item).

The Munster Times reports today that East Chicago Mayor Robert Pastrick will ask the Indiana Supreme Court to reconsider its ruling last week. Some quotes:

Pastrick will petition the Indiana Supreme Court for a rehearing of Friday's ruling, which ordered a new 2003 Democratic mayoral primary in East Chicago.

"I'm drafting it as we speak," said George Patton, one of Pastrick's Indianapolis-based attorneys. "We plan to file it on Monday."

A petition for the rehearing of a Supreme Court ruling asks the justices to reconsider their decision.

At a special meeting today, Lake County's election board also will decide whether to appeal for a rehearing before the high court. The county's potential appeal could either seek clarification of the ruling or challenge its merits.

The decision is George Pabey v. Robert A. Pastrick (8/6/04 IndSCt). Access the ILB entry here.

Posted by Marcia Oddi on Wednesday, August 11, 2004
Posted to Indiana Decisions

Indiana Decisions - Trial Court Decides Bingo Rulemaking Flawed [Updated]

"Rules to aid bingo charities are overturned" is the headline to this story today in the Indianapolis Star. For starters, some quotes from the story:

Bingo halls across Indiana hit the jackpot Tuesday when a judge quashed new state regulations that would have required them to give more money to charity.

Marion Superior Court Judge David J. Dreyer threw out the rules, which were enacted last year but had not yet been enforced, on a technicality.

The Indiana Department of Revenue should have followed state law and submitted the rules to the nonpartisan Legislative Services Agency to determine the financial effect on bingo halls, Dreyer ruled. That's required by state law if the estimated economic impact of a new rule is greater than $500,000.

But Department of Revenue officials didn't think there was a financial impact, so they didn't submit the rules to the legislative agency. Wrong decision, Dreyer ruled. * * *

With the amount of money involved, Tuesday's injunction is a big victory for bingo supporters, said Marilyn Moores, an Indianapolis attorney representing bingo halls. "In a lot of towns in Indiana, bingo is the hub of social life for a lot of senior citizens," said Moores, who expects state officials to appeal.

The Indiana Law Blog last reported on this case over a year ago, on June 28, 2003. Access it here (the Star link no longer available). At that time the "the Revenue Department and the Indiana attorney general's office agreed to stop enforcing the new regulations until a July 25 [2003] court hearing, said Kenneth L. Miller, commissioner of the Revenue Department."

I haven't seen any of the documents in the bingo case (but would like to), but the decision is reminiscent of the Indiana Supreme Court's ruling in Indiana Family & Social Services Adm. v. Walgreen (Ind.S.Ct. 5/28/02) (access the ILB summary/analysis here). There, in considering an FSSA rulemaking, the Supreme Court stated:

We agree with the trial court, therefore, that FSSA should have obtained an LSA fiscal analysis. The question then becomes, what is the proper remedy. Per IC 4-22-2-44, A rulemaking action that does not conform with this chapter is invalid, and a rule that is the subject of a noncomplying rulemaking action does not have the effect of law until it is adopted in conformity with this chapter. Before the permanent rule may take effect, therefore, FSSA must obtain LSAs fiscal analysis.

Because the requirement does not attach until after preliminary adoption, FSSA need not go all the way back to square one. Rather, once it has obtained and properly considered an LSA fiscal analysis, it may resubmit the proposed rule to the Attorney Generals office and proceed toward permanent adoption should it so choose.

[More] Thanks to Marilyn Moores at Cohen & Malad, here is a copy of Judge Dreyer's 7-page order: Veterans of Foreign Wars v. Indiana Dept. of Revenue (8/9/04 Marion Superior Ct 10).

In addition, the Fort Wayne Journal Gazette also reported on the ruling today. Some quotes:

The biggest thing is, we won, said Gahan, whose post brought in $2.68 million from bingo in fiscal 2003. I think its big that they did this illegally and they were telling (people) they did everything right.

Gahan, whose organization was among six bingo operators that sued the state revenue department, cautioned that the fight is not over.

Revenue department deputy commissioner Larry McKee acknowledged the department could either appeal the decision or start the rules process anew. He spoke Tuesday shortly after learning about the court ruling and said no decision had been made on what steps might be taken. * * *

The new rules that were struck down this week would have regulated the percentages that parlors give to charities. They took effect in May and mandated that:

Organizations holding bingo licenses that generate less than $150,000 a year give 5 percent to either themselves, outside community groups, or both.

Organizations that generate between $150,000 and $500,000 give 8 percent.

Organizations generating more than $500,000 must give 10 percent.

The rules applied to the overall money a parlor made, not what it reported after taking expenses into account.

Posted by Marcia Oddi on Wednesday, August 11, 2004
Posted to Administrative Law & Decisions | Indiana Decisions

Tuesday, August 10, 2004

Law - Dealing with Sprawl

The Washington Post concludes today a three-part series on the problem of spreading sprawl. Although focusing on growth in the Washington region, the problem exists nationwide.

Part I, The Role of Government (County policies deflect growth rather than control it), was published in the Sunday Post.

Part II, The Price Commuters Pay (To live in housing they can afford, many people drive a long way to work), appeared Monday.

Part III, The Limits of Smart Growth (To planners, density is a good thing. But not to everyone), is in today's Post.

Posted by Marcia Oddi on Tuesday, August 10, 2004
Posted to General Law Related

Indiana Decisions - Five from Court of Appeals Today

Tom Richard Daggett, et al. v. Indiana State Police (8/10/04 IndCtApp) [Tort Claims Act]
Sullivan, Judge

Tom and Karen Daggett appeal from the trial courts grant of summary judgment in favor of the Indiana State Police (ISP). They present one issue for our review: whether the trial court erred in determining that the ISP was entitled to governmental immunity under the Indiana Tort Claims Act (ITCA). We affirm. * * *

Granting immunity to law enforcement officers who assist emergency medical professionals in restraining combative individuals who need medical treatment is within the scope of the enforcement provision of the ITCA. Law enforcement officials cannot be expected to arrive at the scene where medical professionals are attempting to provide treatment to an individual and determine whether that person is committing an act which is punishable as a crime or whether that person is involuntarily resisting treatment because they have no control over their physical capacities. Thus, we must conclude that when law enforcement officers respond to a request to assist in restraining combative patients, the officers are enforcing the law to the extent that they are preventing the patient from injuring himself and/or the medical professionals. As a consequence, they receive the protections of the enforcement immunity found in the ITCA. Holding otherwise would likely prevent the officers from performing a routine part of their job. The judgment is affirmed.
MAY, J., and VAIDIK, J., concur.

David Camm v. State of Indiana (8/10/04 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge
David R. Camm appeals his three convictions for the murder of his wife and two children. We reverse.

Issues. The dispositive issue we address today is whether the trial court committed reversible error by allowing the State to present extensive evidence of extramarital sexual activity by Camm. For retrial purposes, we also address other issues that Camm has raised. * * *

We need not address any more issues in this case in detail. However, we do trust that some of the claimed instances of prosecutorial misconduct were unintentional and will not be repeated in any retrial, such as (1) questioning the defense blood spatter expert as to why his opinion conflicted with five other experts, when only two experts had testified for the State; (2) asking Camm why he did not think domestic violence was a big deal when there was no evidence that Camm had ever battered Kim; and (3) representing that a certain witness would be called later and could be questioned directly by defense counsel, then failing in fact to call that witness and protesting when defense counsel sought to do so.

Conclusion. Camm was unfairly prejudiced by the introduction of extensive evidence and argument regarding his poor character, where the evidence regarding his philandering was not reasonably related to any proper purpose under Indiana Evidence Rule 404(b), including proof of motive. We reverse his three convictions for murder. Reversed.
CRONE, J., and BAKER, J., concur.

St. Joseph County Police Department v. Estate of Wayne Shumaker, et al. (8/10/04 IndCtApp) [Tort Claims Act]
Sillivan, Judge
[The St. Joseph police department brings this interlocutory appeal from the trial courts denial of their motion for summary judgment in a suit brought by Plaintiffs. Issue: whether the trial court erred in determining that the Department was not entitled to governmental immunity under the Indiana Tort Claims Act (ITCA).] We reverse and remand.

* * * [H]ere we have not only the failure of the Department to follow the applicable laws, rules, and regulations itself (as was the case in Tittle), but also the failure of the Department to enforce the bond against Stroud. In other words, the Plaintiffs, by claiming that the Department negligently released Stroud without posting the proper bond, necessarily allege that the Department failed to enforce the law, i.e. compel the obedience of another (Stroud) to the applicable laws, rules, and regulations (the trial courts bond order). This is essential to their claim of negligence. We therefore hold that the Department is entitled to immunity under Section 3(8). Furthermore, under the King analysis, the Department is within the scope of Section 3(8) immunity in that it is within the operational purpose or mission of the Department to enforce bond orders and run the jail. * * *

Because we hold that the Department is immune from suit under Section 3(8) of the ITCA, the trial court erred in denying the Departments motion for summary judgment. The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion.
MAY, J., and VAIDIK, J., concur.

Patrick J. McGraw, et al. v. Louis Marchiloi, et al. (8/10/04 IndCtApp) [Real property]
Vaidik, Judge
Patrick J. McGraw, P.J. Mac, Inc., and Jamison Inn Partnership (collectively, McGraw) appeal the trial courts Order Approving Compromise and Settlement of Class Action. In particular, McGraw claims that the trial court erroneously enforced the settlement agreement because a condition contained within the mediated settlement agreement had not been satisfied. Because McGraw elected to go forward with the agreement even after realizing that the condition contained therein would not be satisfied, we find that McGraw waived the condition and cannot now attempt to avoid any obligation under the settlement agreement because the condition was not satisfied. Consequently, we affirm. * * *
SULLIVAN J., and MAY, J., concur.
Christopher M. Allen v. State of Indiana (8/10/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Christopher M. Allen appeals his convictions for three counts of Murder, a felony, and one count of Robbery, a class C felony, raising a number of alleged errors. Specifically, Allen asserts that the procedures involving the pre-trial identification of Allen as the suspect were tainted, that the trial court erred in refusing to allow him to present evidence demonstrating that someone else had committed the offenses, that he was denied his right to due process of law because the State unreasonably delayed in bringing charges against him, and that he was denied the right to a fair trial because the jury verdict was prejudiced by improper extraneous influences. Allen also asserts that reversible error occurred when counsel were not notified of ex parte communications between the judge and the jury, that the results of certain tests performed by the State prior to trial were improperly admitted, and that the evidence was insufficient to support the convictions.

In this appeal, we address the issues that amount to reversible error, those that might recur on retrial if the same is warranted, and Allens sufficiency of the evidence claim. We conclude that the trial courts exclusion of a defense witnesss testimony indicating that someone other than Allen had committed the offenses was reversible error. Similarly, we conclude that the trial court erred in excluding the results of certain tests that had been conducted as well as the testimony of an expert witness who had been retained by Allen. We also find that the trial court did not err in admitting pretrial and in-court identification evidence, that the trial court did not err in excluding the testimony of a witness who had died before the trial commenced, and that Allen was not denied due process as a result of the States delay in filing the charges against him. Finally, we find the evidence sufficient to support Allens convictions. Thus, we reverse and remand for further proceedings consistent with this opinion. * * *

Conclusion. In light of our discussion of the issues set forth above, we conclude that the trial court committed reversible error in excluding Bethels testimony that was exculpatory and vital to Allens defense. We also find that it was error to exclude the reconstructive evidence and testimony from Lumpkin.

On the other hand, we hold that the trial court properly admitted the pretrial identification evidence with respect to the photo array, and there was no error in the exclusion of McGills testimony. We also conclude that Allen was not denied due process of law as a result of the States pre-indictment delay in bringing the charges against him, and we find that the evidence was sufficient to support Allens convictions. Given such a conclusion with regard to Allens sufficiency claim, the State is not barred from retrying Allen. See Joyner, 678 N.E.2d at 390. The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi on Tuesday, August 10, 2004
Posted to Indiana Decisions

Indiana Decisions - Five Decisions Today from the 7th Circuit

Garwood Packaging v. Allen & Co Inc (SD Ind., Chief Judge McKinney)

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. This is a diversity suit, governed by Indiana law, in which substantial damages are sought on the basis of promissory estoppel. * * * The district court granted summary judgment in favor of Allen and dismissed the suit. [The panel affirms the district court, with a fascinating discussion of the law of promissory estoppel.]
Haywood, David v. City of Chicago (ND Ill.)
Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. David Haywood brought suit for damages under 42 U.S.C. 1983 against the City of Chicago and two of its police officers, charging false arrest and detention in violation of his federal constitutional rights. He appeals from the grant of the defendants motion for summary judgment * * *. [A]lthough we agree with the district court that the arrest itself was lawful, the grant of summary judgment with respect to the continued detention ordered by the judge at the Gerstein hearing was error, and so the case must be remanded and the plaintiffs supplemental state-law claims, dismissed because the district court dismissed the plaintiffs federal claims before trial, reinstated. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
IN Land Co v. City of Greenwood (SD Ind., Judge Barker)
Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, a real estate developer, brought suit for damages against the City of Greenwood, Indiana, under 42 U.S.C. 1983, charging violations of the due process and equal protection clauses of the Fourteenth Amendment. The district court granted summary judgment in favor of the City, and the developer has appealed. The facts, which concern events that occurred in 2000, are not in dispute. The plaintiff had signed a contract to buy 142 acres adjoining the City for development as a residential subdivision. For such development to be possible, the plaintiff had to get the City to annex the acreage and rezone it from agricultural to residential use. The contract was made conditional on the plaintiffs obtaining these legal changes from the City. [The issue involved whether the law required that the City Council grant the plaintiff's application by a majority vote, or by a 2/3 vote.] Affirmed, Ripple concurring.
Comollari, Irgen v. Ashcroft, John (On Petition to Review an Order of the Board of Immigration Appeals)

USA v. Diamond, Arlene F. (CD Ill.)

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Arlene F. Diamond was convicted of mail fraud, wire fraud, conspiracy to commit mail and wire fraud, conspiracy to conduct monetary transactions with the proceeds of illegal activities, and conducting monetary transactions with proceeds of illegal activities. She appeals; we reverse in part and affirm in part.

Posted by Marcia Oddi on Tuesday, August 10, 2004
Posted to Indiana Decisions

Indiana Decisions - OEA Rules Whiskey Warehouse Emissions are Fugitive

In re: Objection to the issuance of Part 70 operating permit for Joseph E. Seagram & Sons (8/4/04 Ind OEA) [Administrative Law; Environmental]

This is the first decision the Indiana Law Blog has posted from the Indiana Office of Environmental Adjudication. The problem has been availability.

According to counsel for Seagram, in this case:

The Indiana Office of Environmental Adjudication ("OEA") ruled on August 4, 2004, that uncontrolled ethanol emissions from a whiskey warehouse in Milan, Indiana, are fugitive emissions that do not count toward the 100 ton-per-year applicability threshold for the Clean Air Act Part 70 operating permit program.

OEA's order overturned the contrary ruling of U.S. EPA Region V and the Indiana Department of Environmental Management ("IDEM"). Pernod-Ricard USA, which operates the warehouse, challenged IDEM's issuance of a Part 70 operating permit for the facility, believing it needed no permit.

Fugitive emissions do not count toward the 100-tons-per-year threshold for the Part 70 program. Under state and federal rules, fugitive emissions are those that "could not reasonably pass through a stack, chimney, vent or functionally equivalent opening." Pernod-Ricard argued that the definition was intended to cover emissions that cannot reasonably be collected and directed to a control device. It urged that collection and control of VOC emissions from whiskey aging warehouses would be unreasonable, because it would alter the natural airflow that is critical to production of saleable product.

IDEM argued that any emission that enters the environment through a building opening reasonably passes through a vent and therefore is not fugitive.

OEA's environmental law judge, agreeing with Pernod-Ricard, based on expert testimony, and several EPA publications and guidance documents, ordered IDEM to rescind the permit.

Pernod-Ricard was represented by Anthony C. Sullivan and Bryan G. Tabler of the Indianapolis office of Barnes & Thornburg LLP.

Posted by Marcia Oddi on Tuesday, August 10, 2004
Posted to Administrative Law & Decisions | Indiana Decisions

Environment - Update on Michigan "mining the dunes" case

On Oct. 13, 2003 the Indiana Law Blog posted this entry about a citizens' suit in Michigan over a permit granted by the Michigan DEQ:

Preserve the Dunes claimed that the Michigan Department of Environmental Quality (DEQ) improperly granted defendant Technisand a permit to mine sand in a designated critical dune area, and that such action would impair or destroy that natural resource. Following a bench trial, the trial judge found that Preserve the Dunes failed to show that any adverse impact on natural resources resulting from sand mining would rise to the level of impairment or destruction of natural resources within the meaning of the Michigan Environmental Protection Act (MEPA, part 17 of the Natural Resources and Environmental Protection Act (NREPA). The Court of Appeals reversed in a published decision.
Yesterday (August 9, 2004) the Benton Harbor Micigan Herald-Palladium reported:
LANSING -- The Michigan Supreme Court has rejected a citizens group's claim that a state agency violated the law when it issued a permit in 1996 to mine sand in a critical sand dune area of Hagar Township. A dissenting justice called the ruling a "devastating blow" to the state's main environmental law.

The high court in a 4-3 vote ruled that the Michigan Environmental Protection Act (MEPA) "does not authorize such a collateral attack" by the citizens group, Preserve the Dunes, and sent the case back to the Michigan Court of Appeals. The appellate court had invalidated Bridgman-based TechniSand's permit to mine the dunes, but "The Court of Appeals conclusion is incorrect," the Supreme Court ruled.

The Supreme Court justices said the "only issue properly before us" is whether the MEPA allows a challenge to a decision by the Michigan Department of Environmental Quality to issue the sand mining permit. The act does not allow such a challenge, the justices ruled.

The ruling said the reasoning from the plaintiffs included "fuzzy logic" and would result in a permitting process "that can never be final."

"...every permit that has ever been issued would be subject to challenge; any undotted 'i' or uncrossed 't' could potentially invalidate an existing permit," the court said. The Legislature did not intend MEPA "to destabilize the state's permitting system in this manner," the ruling stated.

That "would cripple economic expansion in Michigan and probably lead to disinvestment," the court ruling said. "No one would invest money to obtain a permit that is subject to endless collateral attacks."

Dissenting Justice Marilyn Kelly wrote, "Through the decision in this case, a court majority of four sanctions the DEQ's unexplained and illegal about-face on TechniSand's critical dune mining permit. In the process, it strikes a devastating blow to Michigan's environmental law. This majority perpetuates the DEQ's unprincipled decision to permit illegal mining of critical dunes by insulating it from the scrutiny of the Michigan environmental protection act...

"Its holding that the DEQ's decision to grant the permit to mine critical dunes is 'unrelated to' the destruction of those critical dunes defies reality. It mocks our Legislature's intent to prevent environmental harm."

Here is the decision, Preserve The Dunes, Inc v Michigan Dep't of Envtl Quality (7/30/04)

Another decision handed down the same day by the court, National Wildlife Fed'n & Upper Peninsula Wildlife Council v Cleveland Cliffs Iron Co & Empire Iron Mining P'ship (7/30/04), compounds the concerns of many. The Detroit Free Press reported on this ruling on August 5, 2004:

The Michigan Environmental Protection Act is the sledgehammer in the toolbox of state environmentalists and citizens who have used it to protect Michigan sand dunes, groundwater and clean air.

Now, it may be in jeopardy, its supporters say.

In a unanimous ruling last week, the Michigan Supreme Court upheld the National Wildlife Federation's MEPA lawsuit against an Upper Peninsula mining company. It seemed to be a victory for MEPA backers.

But four of the seven justices ventured further to issue a warning: Citizens must show direct harm from an environmental problem before they may sue. * * *

[E]nvironmental protection is the job of state officials and regulators -- not citizens with only tangential interests in an issue, wrote Chief Justice Maura Corrigan and Justices Stephen Markman, , Clifford Taylor and Robert Young Jr. Otherwise, they said, "there would be little to stand in the way of the judicial branch becoming intertwined in every matter of public debate."

The 51-page majority opinion is a precursor to MEPA's erosion, some lawyers and environmentalists predicted.

"Now, in addition to proving an injury to the environment, MEPA plaintiffs will have to prove an injury to themselves, which is more particular than that suffered by the general public," said Mark Richardson, a Macomb County assistant prosecutor specializing in environmental law.

The other three justices took exception to their colleagues' additional commentary on MEPA. They agreed that the Wildlife Federation had standing to file the suit, but disagreed with the rest of the majority opinion.

The ruling means the federation and co-plaintiff Upper Peninsula Wildlife Council may proceed in a local court with a suit against Cleveland Cliffs Iron Co. The suit alleges the company's waste rock disposal methods harm wetlands and a stream south of Marquette. The disposal was permitted by state regulators in 2000.

Interestingly, these two isolated stories are the only reports I have found on either of these decisions.

Posted by Marcia Oddi on Tuesday, August 10, 2004
Posted to Environmental Issues

Environment - Brochure warns about smells of country living

"Country living can awaken one's sense of smell" is the headline of this story from the Toledo Blade. Some quotes:

WAUSEON - A new brochure about Fulton County will carry a warning about country living: It stinks. In other words, fresh country air sometimes smells like manure.

The planned brochure is to use more than words to make its point to people who are considering a move to the county. Many of the pamphlets are to include a scratch-and-sniff panel with a strong whiff of what designers say smells like cow manure.

The scratch-and-sniff sticker alone is expected to cost 20 cents per brochure, with a estimated bill of $1,200 for the 4,000 brochures. The costs are to be paid by public and private groups including the county Regional Planning Commission.

But organizers hope the novelty of scratch-and-sniff manure might lead to a better understanding of life in the country and help prevent what the brochure calls unwarranted complaints to public officials and frivolous lawsuits over farm activities, such as spreading manure, spraying pesticides, and stirring up dust.

Where is Fulton County Ohio? According to the county web site: "Fulton County is located on the Michigan border in the northwest portion of the state. Interstate Highways 80 and 90, U.S. Route 20, and State Route 2 cross the county east and west, and State Routes 64, 66, 108, and 109 run north and south. The Tiffin River flows through Fulton County." More from the story:
Fulton County's planned brochure is modeled after a pamphlet produced last summer by western Michigan's Ottawa County, a growing area sandwiched between Grand Rapids and Lake Michigan.

Some newcomers to Ottawa County had fretted about planes spraying blueberries and farmers working nearly round the clock in-season with loud equipment, said Mark Knudsen, director of the Ottawa County Planning Department. A few called law enforcement, asking that a farm be closed because they could smell its manure, he said.

"One of the eye-opening facts of this whole process has been the naivete of city dwellers," he said. "They believe it's going to be pristine and quiet and kind of Norman Rockwellian." * * *

The draft brochure makes no mention of the size of farms, but Fulton County is in the midst of the rural counties where large dairy farms are being built.

To Norm Carpenter, a trustee of the Wood County Citizens Opposed to Factory Farms which opposes large livestock farms throughout the region, the taxpayer money allocated for Fulton County's brochures would have been better spent to put a moratorium on such farms.

Mr. Carpenter, traffic and safety director for the Wood County Highway Department who farms 300 acres, said he hoped that residents do not feel powerless in disputes with farmers after reading the brochure. One section urges readers to keep agriculture viable in Fulton County by refraining from "any actions that would discourage farmers from conducting standard farming practices on agriculturally zoned property."

"I realize what they're saying and yet there's a limit," he said, questioning how officials would define standard farming practices.

Posted by Marcia Oddi on Tuesday, August 10, 2004
Posted to Environmental Issues

Indiana Courts - Judge receives private discipline

The Indianapolis Star is reporting on the front page today that "Judge receives private discipline: Supreme Court panel issues lightest sanction over claim of preferential treatment." Some quotes:

An Indiana Supreme Court panel decided against filing official charges against a Marion County juvenile court judge but did issue a private warning in response to allegations he gave preferential treatment to an Indiana lawmaker.

Judge James Payne confirmed Monday that the court's Commission on Judicial Qualifications has closed its inquiry into his actions in a case involving the daughter of state Rep. Robert W. Behning.

Filing official charges against Payne would have opened records and hearings to the public. Instead, the commission members gave Payne the least punitive of sanctions -- a private caution.

The complaint, filed by Assistant Public Defender Janice L. Stevens, claimed that Payne opened the court on a holiday and conducted a hearing for Behning's 12-year-old daughter.

Stevens maintained that Payne violated the girl's rights by allowing her parents to waive her right to an attorney. Behning, a Republican who represents the 91st House District in Marion, Morgan and Hendricks counties, had a conflict of interest, according to Stevens, because he was a victim of her alleged theft. * * *

According to the complaint, Payne ordered an Indianapolis Police Department officer to go to Behning's home in May 2000 and arrest his daughter on a theft charge. The next day, Payne opened the court on the Election Day holiday and held a hearing for the girl, even though prosecutors, defense attorneys and other key court personnel were absent.

Payne sent the girl to a juvenile treatment center on the theft charge -- her first criminal offense, according to the complaint. That decision led to three years of incarceration in various treatment programs, costing taxpayers more than $48,000, the complaint alleges.

Posted by Marcia Oddi on Tuesday, August 10, 2004
Posted to Indiana Courts

Monday, August 09, 2004

Indiana Decisions - Three from Court of Appeals, one from Tax Court today

Indiana Department of Environmental Management v. Lynn West, et al. (8/9/04 IndCtApp) [Employment Law; Age Discrimination; Administrative Law]
Sharpnack, Judge

The Indiana Department of Environmental Management (IDEM) appeals the trial courts denial of its petition for judicial review of the Indiana State Employees Appeals Commissions (SEAC) final order finding that IDEM had discriminated against Lynn West, Michael Dalton, and Phillip Wuensch (collectively, Employees) on the basis of their age. IDEM raises six issues, which we restate as: Whether Employees claims against IDEM are barred by the Eleventh Amendment and sovereign immunity; Whether SEAC lacked jurisdiction to hear Employees claims under Ind. Code 4-15-2-35 because Employees were laterally transferred under Ind. Code 4-15-2-24; Whether SEAC violated the Open Door Law when it issued its final order; Whether the Chief Hearing Officer erred by admitting Employees Exhibit M into evidence and whether SEAC erred by relying upon Employees Exhibit M in issuing its final order; Whether SEACs factual findings are supported by the evidence; and Whether SEAC acted properly in fashioning an appropriate remedy. We affirm. * * *

Before the merger, Robert Moran, an IDEM employee over the age of forty, spoke with Assistant Commissioner, Mary Beth Tuohy, who had encouraged senior supervisors to take technical positions and to facilitate a reorganization. Privately, Tuohy told Moran that he should consider taking a SEM 1 position, which would have been a demotion, because it would set a good example for all the other supervisors. She hinted that if Moran did not voluntarily take the position she could use the performance appraisal system to accomplish the demotion. She said she wanted new blood with fresh ideas. West had also heard that Tuohy had said that the office could use some new blood and some or some younger blood or some new blood and some new ideas. Before the merger, IDEM promoted several employees, all of whom were under the age of forty. After the merger, they remained in their promoted positions.

Employees filed merit complaints with the State Personnel Department, alleging that IDEM had created unacceptable working conditions when it reclassified their jobs. Employees, who are all over forty years of age, also complained that as a result of the merger, staff members over forty had been demoted while staff members under forty had been promoted. * * *

Conclusion. In summary, we hold that: (1) Employees claims against IDEM are not barred by the Eleventh Amendment and sovereign immunity; (2) SEAC did have jurisdiction to hear Employees complaint pursuant to I.C. 4-15-2-35; (3) SEAC substantially complied with the Open Door Law when it issued its final order; (4) Hearing Officer Riggs did not err by admitting Employees Exhibit M into evidence, and SEAC did not err by relying upon Employees Exhibit M; (5) SEACs conclusion that Employees were discriminated on the basis of the age is supported by substantial evidence; and (6) SEAC acted properly in fashioning an appropriate remedy.
For the foregoing reason, we affirm the judgment of the trial court. Affirmed.
DARDEN, J. and ROBB, J. concur

Lake County Parks & Recreation Board v. Indiana-American Water Company (8/9/04 IndCtApp) [Utilities; Condemnation]
Mathias, Judge
Indiana-American Water Company (Indiana-American) filed a complaint in condemnation in Lake Superior Court, in which it sought to condemn a right-of-way and easement on the property of the Lake County Parks and Recreation Board (the Board). The Board filed objections to the complaint, which the trial court overruled. The Board appeals raising the following issues, which we restate as: Whether Indiana-American has the authority to condemn the Boards property; Whether the trial court abused its discretion when it excluded an appraisal of the property offered by the Board; and, Whether the trial court erred when it found that the Board failed to establish that Indiana-Americans selection of the route for the water main was arbitrary or capricious.

Concluding that the trial court properly overruled the Boards objections to the condemnation proceeding, we affirm. * * *

The public use doctrine is not applicable in this case because Indiana-Americans proposed use for the property is not inconsistent with the Boards current use. Also, the trial court did not abuse its discretion when it excluded the Boards appraisal from evidence. Finally, the Board failed to establish that Indiana-Americans selection of the route of the water main was arbitrary or capricious. Therefore, the trial court did not err when it condemned the easement and right-of-way. Affirmed.
BARNES, J., and CRONE, J., concur.

Indiana State Board of Education v. Brownsburg Community School Corporation, et al. (6/15/04 IndCtApp - May originally have been NFP) [Procedure]
Mathias, Judge
The Indiana State Board of Education (ISBE) appeals an order of the Hendricks Superior Court on judicial review of its agency action. The trial court set aside an ISBE order to the Brownsburg Community School Corporation (School Corporation) to enroll a student attending a nonpublic, nonaccredited school as a part-time student at Brownsburg High School. ISBE raises the following restated issues: Whether the trial court lacked subject matter jurisdiction to consider the petition for judicial review; and Whether the trial court erred in setting aside the ISBE order in light of Indiana Code section 20-8.1-3-17.3.

Concluding that the trial court lacked subject matter jurisdiction, we reverse. * * *

Because the School Corporation failed to timely file the agency record as required by Indiana Code section 4-21.5-5.13, the trial court lost jurisdiction to consider the School Boards petition for judicial review. Therefore, we must reverse the trial courts decision setting aside the ISBE order. Reversed.
BARNES, J., and CRONE, J., concur.

Steaks R US v. Mount Pleasant Township Assessor (8/6/04 IndTaxCt - NFP) [Real property valuation]

Posted by Marcia Oddi on Monday, August 09, 2004
Posted to Indiana Decisions

Indiana Decisions Two from 7th Circuit Today

Blickenstaff, Kather v. R.R. Donnelley Disability Plan (SD Ind., Judge Barker)

Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Katherine Blickenstaff primarily appeals from the district courts determination that R.R. Donnelley & Sons Co. Short Term Disability Plan (Plan) did not act arbitrarily and capriciously in terminating her short term disability benefits and then refusing to reinstate them on appeal. She also claims that the district court erred in limiting the evidence at trial and appeals the district courts decision to sanction her attorneys under Federal Rule of Civil Procedure 11. For the reasons we discuss below, we affirm the district courts treatment of trial evidence and its decision on the merits, but vacate, in part, the sanctions award. * * *

Because the district court made a factual mistake when evaluating Blickenstaffs use of the Utschig affidavit and because it is undisputed that Blickenstaff did not improperly rely on the affidavit once it was stricken, there should have been no award of sanctions on this issue. We note that the accounting submitted by the Plan in support of the sanctions award delineates the time its attorneys spent on the motion to dismiss the second amended complaint and the motion to strike the Utschig affidavit. Based on our review of this accounting, the $943.50 in sanctions levied against Blickenstaffs counsel pertaining to the Utschig affidavit must be vacated. The remaining sanctions award of $1890.00, attributable to the Plans expenses incurred in fending off the claims against Donnelley and Hartford in the second amended complaint, is affirmed.

III. Conclusion. We AFFIRM the judgment of the district court that the Plan did not act arbitrarily and capriciously in terminating Blickenstaffs short term disability benefits and in refusing to reinstate them on appeal. We further AFFIRM the award of sanctions in the amount of $1890.00; the balance of $943.50 is VACATED.

First Nat'l B & T as Special Administrator for the Estate of Lawrence W. Inlow v. American Eurocopter (SD Ind., Judge Hamilton)
Before BAUER, COFFEY, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Tragically, on May 21, 1997, Lawrence Inlow was struck in the head by a helicopter rotor blade as he disembarked from the aircraft owned by his employer, Conseco, Inc. He died instantly. His estate, represented by First National Bank and Trust Corporation, claimed that the helicopter was a defective product under Indiana law because its manufacturer, Eurocopter, S.A., had negligently failed to warn Inlow or Conseco of the relevant danger. Because we agree with the district court that Indianas sophisticated intermediary doctrine compels a grant of summary judgment to Eurocopter, we affirm. * * *

Inlow was directly warned more than once that tragedy could strike if he persisted in walking in front of the Dauphin when disembarking. The fact that Conseco and Inlow chose to ignore admonishments from the professional pilots does not alter the fact that the pilots are sophisticated intermediaries. No jury could find that it was unreasonable for Eurocopter to expect Consecos pilots to understand rotor blade dangers and to protect Conseco passengers from those dangers.

Because we agree with the district court in holding that Eurocopter may not be held liable as a matter of law under Indianas sophisticated intermediary doctrine, we need not analyze the issue of proximate cause or the affirmative defense of incurred risk.

Posted by Marcia Oddi on Monday, August 09, 2004
Posted to Indiana Decisions

Environment - Focus on coal

The New York Times is running a major front-page story on coal today. It fills the entire jump page. The headline: "Friends in the White House Come to Coal's Aid." Some quotes:

In 1997, as a top executive of a Utah mining company, David Lauriski proposed a measure that could allow some operators to let coal-dust levels rise substantially in mines. The plan went nowhere in the government.

Last year, it found enthusiastic backing from one government official - Mr. Lauriski himself. Now head of the Mine Safety and Health Administration, he revived the proposal despite objections by union officials and health experts that it could put miners at greater risk of black-lung disease.

The reintroduction of the coal dust measure came after the federal agency had abandoned a series of Clinton-era safety proposals favored by coal miners while embracing others favored by mine owners.

The agency's effort to rewrite coal regulations is part of a broader push by the Bush administration to help an industry that had been out of favor in Washington. As a candidate four years ago, Mr. Bush promised to expand energy supplies, in part by reviving coal's fortunes, particularly in Appalachia, where coal regions will also help decide how swing states like West Virginia, Pennsylvania and Ohio vote this year. * * *

The administration has also tried to make surface mining more economical by making it easier for coal companies to blast off the tops of mountains and dispose of rubble in valleys and streams.

Environmentalists say such "mountaintop removal" has destroyed some of Appalachia's beauty and polluted water supplies. They contend that Bush appointees have shifted the government's focus to expediting approvals of new mining permits from limiting the size of the mines.

TBut White House and industry officials say there is a larger case to be made for coal, which fuels generators that produce half the nation's electricity. As natural gas prices have soared, it has become much cheaper to use coal. Although pollutants from coal are among the biggest contributors to acid rain and global warming, coal is also plentiful and secure, with domestic reserves that could last for 230 years. * * *

In late 1999, Judge Charles H. Haden II of United States District Court in West Virginia, a conservative Republican, stunned the industry by ruling that companies could no longer bury streams under these massive structures, called "valley fills."

While the industry appealed the ruling, the Clinton administration began holding back permits and started a sweeping environmental impact study that focused on limiting the size of the valley fills, and thus the size of the mines.

But after the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., nullified Judge Haden's order in April 2001, the Bush administration began to change the direction of its efforts. * * *

Over the last two and a half years, the administration has changed one environmental regulation and announced plans to weaken another. And when officials released a new draft of the impact statement in May 2003, environmentalists were outraged.

The report found that 1,200 miles of streams had been buried or damaged over the past two decades. But the Bush administration dropped the Clinton effort to limit the size of the valley fills. Instead, it called for more coordination among state and federal agencies to simplify the permitting process and minimize environmental harm.

As a result, permits for mountaintop mines started flowing again last year, with 14 approved in West Virginia, up from just 3 in 2002. But just last month a court dealt a blow to the Bush administration's efforts, in a response to another suit by Mr. Lovett and other environmentalists.

Judge Joseph R. Goodwin of United States District Court in West Virginia barred the Bush administration from using one of the main methods for expediting permit approvals that it had endorsed in the environmental review. The judge ordered the government to revoke the permits for 11 mines and to conduct more extensive environmental reviews before issuing any new permits.

Access the 7/8/04 opinion via this Indiana Law Blog entry.

Posted by Marcia Oddi on Monday, August 09, 2004
Posted to Environmental Issues

Environment - Recent stories

Stormwater. "Stormwater rules, costs stumping town officials: Towns scrambling to meet November deadline." is the headline of this story today in the Munster Times. Some quotes:

Like neighboring Munster and Griffith, Highland is considering charging user fees to help clean up its stormwater runoff.

David Jones, the president of the Highland Board of Sanitary Commissioners, said he's concerned by the public reaction he's hearing to the costs prompted by new federal and state water quality regulations. * * *

James Meyer, an attorney representing the Gary Stormwater Management Board, said while the new regulations have been in the wind since 1999, the magnitude of the requirements and their costs are just beginning to dawn on some public officials, never mind the public.

Municipalities are under a November deadline to file their action plans dealing with stormwater runoff with the Indiana Department of Environmental Protection.

It's preparing the plan and the paperwork that wakes up officials to what they're actually facing, Meyer said. Just the preparation of Gary's plan has cost $250,000, he said. Meyer estimated a literal application of the regulations will take no less than 40 or 50 years. * * *

"This is an unfunded mandate. It has hit these small communities in a very large way," said Reggie Korthals, NIPRC environmental director. "To date, there has been no stormwater education in this region. I can see where people could be getting upset," she said.

Cindy Wagner, an IDEM section chief with authority over the program, said IDEM doesn't tell communities how to pay for their stormwater projects. IDEM does, however, require communities to show how they will pay.

Beach pollution. A story in the Munster Times on Friday is titled "Diving into bad water - BEACH CLOSINGS: As national study is released, six Indiana beaches closed for high E. coli levels." Some quotes:
As the Natural Resources Defense Council announced a dramatic rise in the number of beach closures and advisories nationwide, high E. coli levels halted swimming Thursday at six area beaches.

While the beaches remained open, swimming at Central, Lake View, Dunbar, Kemil, Porter and West beaches was prohibited. Additional water samples were tested Thursday by officials with the Indiana Dunes National Lakeshore to determine today's swimming permissibility, but results won't be known until today.

The Natural Resources Defense Council's data shows closures and advisories at beaches nationwide increased 51 percent in 2003, more than any other time in the 14 years they've been monitored. Figures in Indiana jumped 26 percent and in Illinois the increase was 14 percent.

For the study, 25 beaches in Lake and Porter counties and 53 in Illinois were monitored. * * *

U.S. Environmental Protection Agency spokeswoman Cathy Milbourn said this is the first year all states must adopt monitoring and recording methods for water quality. "The year 2004 marks a new era in collecting data," Milbourn said. "Prior to this year, it was all voluntary. We're now asking the states to give us a better picture of beach health." * * *

Charlotte Read, assistant director of Save The Dunes, said those contributors are problems for all of Northwest Indiana. Read said environmental groups look to the federal and state government to encourage communities to properly treat sewage and handle stormwater runoff. "Having the ability to say our waters are clean for swimming and drinking is extremely important," Read said.

Stoner said stormwater cleanup can be as simple as sweeping streets, cleaning basins and reducing pesticide use. Beginning in November, municipalities must start creating a proposal to address stormwater management. It's part of the second phase of a 1987 amendment to the Clean Water Act.

Waste water treatment plant operator. Finally for now, this story last week (Friday) in the Muncie Star-Press reported that "Judge decides IDEM, lab botched probe of wastewater treatment operator."
MUNCIE - A former wastewater treatment plant operator accused of falsifying sample results has pleaded guilty to a class B misdemeanor and surrendered his operator's license.

State officials also were seeking to convict Daniel Ellis, 56, 11900 N. Delaware County Road 825-W, Gaston, of four felony charges. But those were dismissed in a plea agreement after Delaware Circuit Court 4 Judge John Feick suppressed evidence against Ellis that was collected and analyzed in a "scientifically unreliable" manner. "That weakened our case, but we still had a case," said Diane Frye, a deputy prosecutor. * * *

Ellis had been an operator of several wastewater treatment plants, including those at Perry Elementary School, Quiet Acres Mobile Home Park and eight other facilities. He was also a shift operator at the wastewater treatment plant for the city of Muncie.

In 1999, IDEM began to suspect that Ellis was falsifying sample results from the wastewater treatment plants at the elementary school and mobile home park. Such plants are required to monitor and control pollutants in treated wastewater discharged into creeks and other surface waters.

The defendant allegedly submitted sample results for total suspended solids (TSS) and carbonaceous biological oxygen demand (CBOD) that were significantly and consistently less than samples secretly taken by IDEM.

High levels of TSS can decrease the amount of oxygen in water bodies. CBOD measures the amount of oxygen consumed in the biological processes that break down organic matter in water.

After a hearing early this year, Judge Feick ruled that an IDEM investigator and Sherry Laboratories, which analyzed IDEM's samples, did not follow methodologies approved by the U.S. Environmental Protection Agency. He ruled the samples inadmissible. Feick found:

- There was no evidence that the sample bottles were sealed.

- There were numerous gaps and omissions in the chain of custody of the samples, or their whereabouts from the moment they were collected until the moment they were offered into evidence.

- The holding temperature and the holding time of the samples was either not recorded or violated sampling protocol. Those factors are crucial because sewage samples in effect are alive and constantly changing.

- Lab forms were deficient.

- The testimony of an employee of the laboratory was "incorrect and misleading."

- The lab's "unwritten policies" deviated from good lab practices. The lab failed to have written policies explaining why it deviated from standards.

- IDEM's investigator testified he collected the samples in glass containers, but documents showed they were collected in plastic containers.

- The lab apparently misinterpreted the requirements of the code of federal regulations.

Confined feeding. The Star-Press is reporting today: "Two more dairy CAFOs possible."
MUNCIE - East Central Indiana could become home to a third and fourth Vreba-Hoff-affiliated dairy CAFO (concentrated animal feeding operation). Cecilia Conway of Vreba-Hoff Dairy Development, Wauseon, Ohio, recently confirmed reports that one of her firm's clients is looking at a site in Blackford County.

The Indiana Department of Environmental Management has issued a draft permit for Tony Goltstein's proposed Union-Go Dairy to house 1,650 cows in Randolph County. A public hearing is scheduled later this month.

Tejo Willemsen is seeking a permit from IDEM to increase his dairy CAFO in Madison County from 1,200 cows to 1,590 cows.

And Nico Niessen is suing the Henry County Planning Commission after it denied his attempts to expand his dairy CAFO from 1,200 cows to 1,900 cows.

Vreba-Hoff has helped European dairy farmers - mostly Dutch - start 11 CAFOs housing more than 12,000 cows in Indiana. That represents more than 8 percent of Indiana's dairy cow population. The company has helped several dozen other European dairy farmers build CAFOs in Michigan and Ohio.

The average dairy farm in Indiana has about 75 cows. The dairies being developed by Vreba-Hoff in Indiana range from 675 cows to Niessen's proposed 1,900 cows.

Some of the new dairies in the three states have generated complaints because of their size, odors, manure spills, violations of environmental regulations and other problems.

Posted by Marcia Oddi on Monday, August 09, 2004
Posted to Environmental Issues

Sunday, August 08, 2004

Law - Coffee Shop Lawyers

TV's Ed was "The Bowling Alley Lawyer." And in March the Louisville Courier-Journal had a feature on a flea market lawyer (access the ILB entry here). This last week the NY Times had a feature on coffee shop lawyers. This setup, however, is a little more formal:

Eight years ago, Mr. Hughes opened a cafe called Legal Grind in Santa Monica, Calif. Every weekday and Saturday afternoon, lawyers arrive at the cafe - which offers legal advice in addition to coffee - to make themselves available to customers for about 15 minutes for a $25 fee. * * *

Lawyers who give advice at Legal Grind tend to be young and searching for clients. James Orland, 36, arrived at Legal Grind two years ago when he started a law practice, and now appears at the cafe two afternoons a month. Mr. Orland says he has gotten at least 15 percent of his clients from Legal Grind.

In Santa Monica, customers at Legal Grind can pay $25 for advice on landlord-tenant disputes, employment rights and personal injury cases, and business disputes on the first and third Mondays of the month. Other days are set aside for bankruptcy cases, civil suits, drunken driving offenses and many other categories. Document preparation services are also offered at the cafe.

When customers pay for advice, Legal Grind keeps the $25, and if a lawyer is retained, the cafe earns from 15 percent to 33 percent of the billings.

The charges for the cafe's services are listed on its menus alongside the prices for its coffee drinks, which have names like Law'ttes and Cop'uccinos and sell for $1 to $3. For $600, customers can buy completed documents for an uncontested divorce and for $200, they can purchase paperwork for changing their names.

Hughes plans to franchise the company in other states, which presents some challenges:
Franchising the company to people in other states could be complicated, mainly because state rules on fee-sharing and for-profit lawyer referrals vary widely. "Obviously, you don't need to have a bar license to sell coffee," said Kenneth Costello, a franchise lawyer with Jenkins & Gilchrist in Los Angeles. "But if you're practicing law at the same time, you do have some interesting issues in terms of how you structure it, so that nonlawyers aren't sharing in legal revenues."

It is considered unethical for lawyers to share fees with nonlawyers because the practice could drive up costs for consumers. That puts Mr. Hughes at the disadvantage of limiting his search for franchisees to lawyers, while most franchisers have a wide-open field for recruiting buyers.

Another stumbling block is a ban in most states (though not in California) on profiting from referrals, which are a big source of Legal Grind's revenues. Mr. Hughes says he is considering changing Legal Grind into a nonprofit corporation, a status that would exempt it from such restrictions and would give it access to tax-free charitable donations and government grants.

Apparently the ABA likes the coffee house model:
Regardless of the approach Mr. Hughes uses to franchise his business, he is already part of a larger trend. The American Bar Association, which sets the ethical guidelines that most states follow, says the legal profession is becoming more service-oriented. Though its guidelines against profiting from referral fees and sharing revenue with nonlawyers would presumably impede Legal Grind's expansion, the association chose the company as the 2001 recipient of its Louis M. Brown Award for legal access.

"We concluded that this was an innovative model and gave access to affordable legal information," said William Hornsby, the A.B.A.'s staff counsel to the Standing Committee on Delivery of Legal Services. "I don't think the Legal Grind model would comply with many state rules as it is,'' he added. "But there are ways to restructure."

The article also notes that "In Van Nuys, Calif., Kim Pearson, a lawyer, provides free legal advice on Wednesday nights at a hotdog stand called Law Dogs."

A story from July in The Prague Post reports on a new boutique international law firm in Prague, specializing in IT, and coffee.

In February Kines and seven colleagues left the international mega-firm Linklaters to open their own boutique practice, gambling on congeniality, simplicity and expertise (in IT and telecoms) as the recipe for success.

Kines' move met with some surprise and skepticism at his old stomping grounds, according to one Linklaters attorney. "It was a bit of a surprise," partner Lukas Sevcik said at the time. The new firm had set out on a hard path, he added. "I think the market is not so big that you can have a specialized niche practice focusing solely on IT."

Unconcerned, the Kines Bohmova & Schollaert staff has spent the past five months laying the groundwork to create a specialized shop -- and to make a killer cappucino, using fresh-ground beans. Not because they are coffee freaks (although Kines did work at his mother's cafe during his studies, a stint he calls "coffee college") but because along with legal advice they want to offer a comfortable atmosphere where clients can feel at home. Their handwritten menu has something for everyone: Earl Grey with milk for the English, fruit tea with lemon for Czechs, cappuccino or espresso for anyone in need of a kick-start.

Breaking the rules. The Kines team does not subscribe to the traditional standards of behavior and decor expected in the law profession, symbolically and literally. Everyone sits in an open space. There are no mahogany desks and no thick doors separating staffers from each other or from clients. Everyone is an equity partner, including the office manager.

Lawyers tend to be overly serious, Kines contends, leaning back in an orange chair in the lobby of the office, where a faint smell of novelty still lingers. The firm's setup, he says, encourages "lawyer collaboration." Behind the renegade style, however, there is talent and earnestness fueled by the philosophy that clients need more than just advice on the law.

"We provide commercially minded advice," Kines says. "That's one thing we pride ourselves on." The aim is to make the practice an essential part of clients' business, with expertise in new media, IT, telecoms, regulatory practices and outsourcing. Five months after opening, the firm is "surprisingly profitable," he says.

Clients rave about the practice's mix of personable approach, results-based billing and flexibility. When California-based Clarity Partners, an $800 million (20.8 billion Kc) private equity fund, decided to go into broadband telecoms in Central and Eastern Europe, consultant Michael Norris interviewed what he called "pretty big" firms for a legal adviser, but he preferred the Kines team's approach.

"They've generally been my right arm in business development," Norris says of the firm. "It's much more than an attorney-client relationship. I have an incredible amount of trust in them."

Posted by Marcia Oddi on Sunday, August 08, 2004
Posted to General Law Related

Indiana Courts - More on U.S. Steel suit against citizen group

This Thursday, July 30th Indiana Law Blog entry reported that "U.S. Steel is suing a Miller citizens group for language the group used in its brief." A quote from that day's Munster Times:

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.
Today the Times has an AP story titled "U.S. Steel to drop suit against Miller group: Steelmaker forgoes bid to get legal fees, still upset by language." Oddly, today's story characterizes the suit as one for legal fees rather than damages, and makes no mention of the earlier report that Judge Fisher had sealed the petition.

Posted by Marcia Oddi on Sunday, August 08, 2004
Posted to Indiana Courts

Saturday, August 07, 2004

Law - ND Okla Blakely Ruling Recommended

Douglas Berman of Sentencing Law and Policy has a post today recommending for reading Chief Judge Sven Erik Holmes' opinion in US v. O'Daniel. Of particular interest are Berman's, and Judge Holmes', discussion of waiver, and Berman's conclusion that:

The sentencing world in Judge Holmes' courtroom seems so much more orderly and predictable than in those courtrooms in which judges have declared the entire guidelines system unconstitutional. * * * In other words, Judge Holmes has presented a sound and sensible way to maintain our old guidelines world while still making it compliant with the Sixth Amendment and the dictates of Blakely.

Posted by Marcia Oddi on Saturday, August 07, 2004
Posted to General Law Related

Indiana Decisions - More coverage of the East Chicago mayorial decision

Here are headlines from the Munster Times today:

"High Court orders new E.C. election: Challenger prevails after taking election fraud case to Indiana Supreme Court." Access it here.

"Ex-Pastrick assistant charged with tax fraud: U.S. attorney alleges longtime aide and his wife filed false returns. Access it here.

Some residents hail Supreme Court ruling: Many welcome new election, fresh chance for East Chicago to change its politics. Access it here.

Pastrick detractors ready for a fight: Beleaguered mayor's supporters worry longtime pol may not feel up to another campaign. Access it here.

Indictment says Riga ruled over crime ring from court. Some quotes from this story:

SCHERERVILLE -- A federal grand jury charged former Town Court Judge Deborah Riga with dispensing fraud and extortion rather than justice. U.S. Attorney Joseph Van Bokkelen said Friday Riga shook down more than 1,175 minor offenders who appeared in her court, ordering them into counseling following their arrests on traffic, substance abuse and domestic problems. "She deprived the town of honest services," Van Bokkelen said.

A task force of state police and FBI agents collected evidence they said will prove Riga pocketed more than $30,000 in fees she ordered offenders to pay to a counseling service she owned in the name of a family friend -- in violation of state law and the canons of judicial ethics. * * *

[Riga, 47] graduated from Valparaiso University's Law School and became a lawyer in 1993. She served as a deputy county prosecutor, a public defender and a law professor at Indiana University Northwest.

She was elected in 1999 to preside over the fourth busiest municipal court in Lake County and a rich source of revenue for the town and state from the fines and fees offenders pay the court.

Posted by Marcia Oddi on Saturday, August 07, 2004
Posted to Indiana Decisions

Indiana Decisions - News reports of East Chicago decision

The Indianapolis Star story is here. Some quotes:

The court's majority ordered a new election, saying Pastrick's political machine engaged in widespread fraud at the ballot box. The ruling reversed an Indiana Court of Appeals decision to dismiss Pabey's appeal.

Pabey had simply asked the court to throw out 1,950 absentee ballots, which had given Pastrick his winning margin.

The Supreme Court didn't throw those ballots out, leaving Pastrick with a lead of 178 votes of the 10,177 votes cast in the primary. Instead, justices voted 3-2 in favor of redoing the entire mayoral election in this economically struggling, ethnically diverse city of 31,000 along the Lake Michigan shoreline.

The majority did not spell out who could run -- or vote -- in the new election or even when the contest should be held. The court did not specify whether a primary and general election are required.

That's up to Special Judge Steven King, who presided over a trial in August 2003 and threw out 155 absentee ballots declared invalid but let Pastrick's primary victory stand. Pabey appealed that decision to the state Court of Appeals. * * *

In the past, judges have ordered new votes in those precincts in which voting irregularities were documented -- if the challenger could show enough votes had been affected to influence the election's outcome.

This time, the Supreme Court ordered a citywide election even though Pastrick finished ahead after some ballots were thrown out -- declaring that the effects of illegal voting schemes are not always so easy to quantify.

According to the majority, the new legal standard for ordering a special election is whether there was an orchestrated attempt to conceal an election's legitimate winner -- and the actions "profoundly" undermined the election's integrity.

"The legislature could not reasonably have intended to immunize obviously corrupt elections where the resulting distortion of an election outcome could not be precisely traced and mathematically determined," Justice Brent Dickson wrote on behalf of himself, Chief Justice Randall Shepard and Justice Robert Rucker.

Dickson and Shepard are Republican appointees. Rucker is a Democratic appointee from Gary, which borders East Chicago.

Together they ordered a new election over the objections of Justices Theodore Boehm and Frank Sullivan Jr., both Democratic appointees.

In their dissent, Boehm wrote, and Sullivan agreed, that: "The presence of corruption, even if 'widespread,' is no basis to upset an election and nullify the votes of the electorate if a majority of the untainted votes supported the winning candidate."

Boehm and Sullivan said the new standard is so subjective it could invite unwarranted judicial interference in elections.

"There is no doubt that the plaintiffs proved old-style election fraud in some cases, and highly inappropriate behavior in others," Boehm concluded. "But our disapproval of the conduct of some of the participants in the election is no basis to change its result without proof the result was altered by the wrongdoing."

Given the court's split, Pastrick's attorneys say the mayor might ask the state Supreme Court to reconsider its ruling or at least flesh out details of how the special election should be conducted.

The Gary Post-Tribune has a number of stories today. However, as the Tribune does not archive its stories, the links will only be good for today (8/7/04). The lead story reports:
The high-court ruling, written by Justice Brent E. Dickson, followed closely the landmark decision by Special Judge Steven E. King a year ago. King found ample evidence of vote buying and manipulation of absentee ballots, but in the end, the judge felt he did not have the power to order a new election because Pabey forces had not shown enough fraudulent ballots to change the outcome.

In his ruling, Dickson wrote that the decision rests not with a mathematical comparison but rest on the trial courts unchallenged findings and conclusions of pervasive and widespread deliberate conduct, which in Kings words perverted the absentee voting process and compromised the integrity and results of that election.

Attorneys for Pastrick have 10 days to appeal for a rehearing before the Supreme Court; after that the decision goes back to King, who is required to order and oversee a new election. State statute sets the time frame for a new election at nine Tuesdays after a judges ruling.

"E.C. mayoral decision has all sides looking for answers," is the headline of this story, which reports:

The Supreme Courts call for a special election in East Chicago has left state and local officials scrambling to figure out how that election will take shape.

Attorneys for Mayor Robert Pastrick have 10 days to file a petition for a rehearing before the high court. After that, the court will send the case back to Special Judge Steven King with orders to hold a new election in East Chicago.

When they appear before King, attorneys for George Pabey will argue for basic ground rules. Nathaniel Ruff, Pabeys attorney, said those would include limiting the election to the people in the 2003 mayoral primary Pabey, Pastrick and former City Judge Lonnie Randolph.

Left without further direction, officials said King will have a great deal of leeway to set the parameters of the election. * * *

The Lake County Elections and Registration Board has scheduled a special meeting for this Wednesday to try to determine the latest date it can conduct an East Chicago primary and still be ready for a Nov. 2 general election in the city, Wieser said.

Will that give them time to go out, get the ballots printed and do the absentee ballots in time for the November general election? Simmons asked.

East Chicago taxpayers will foot the bill for the special elections, to the tune of roughly $69,362.33 for the primary and then the general election. * * *

King will also need to spell out whether the Republicans get another primary as well. * * *

There also is the issue of whether there also would be a general election. In heavily Democratic East Chicago, Pastrick easily rolled over little-known Republican Arthur Santos in the 2003 General Election, Ruff said.

And what if, as political insiders often speculate, Pastrick, a nine-term incumbent, stepped down, rather than face another election?

Posted by Marcia Oddi on Saturday, August 07, 2004
Posted to Indiana Decisions

Friday, August 06, 2004

Indiana Decisions - Here is the opinion: Pabey V. Pastrick

George Pabey v. Robert A. Pastrick (8/6/04 IndSCt) [Election Law]
Dickson, Justice

Plaintiff/appellant George Pabey is appealing from a judgment denying relief in an election contest. We reverse. * * *

Indiana law provides two methods to examine the results of elections: an election "re-count" and an election "contest." See Ind. Code 3-12-6-1 et seq. (recount) and 3-12-8-1 et seq. (contest). Pabey originally challenged the results of the primary under both of these statutes. However, he subsequently dropped his request for a recount and his recount petition was dis-missed with prejudice. (Br. of Appellee, Pastrick at 2). As such, what is at issue in this proceed-ing is solely an election "contest" under Indiana Code 3-12-8-1 et seq. We will refer to the election contest chapter of the Indiana Code as the "Election Contest Statute." * * *

With its enactment of the Deliberate Ac-tions ground in the Election Contest Statute, the legislature expressly intended to provide the remedy of a special election not merely for inadvertent mistakes and malfunctions, but also for deliberate conduct. In construing the language of these subsections, we must interpret and apply them in such a manner as to achieve the effect intended. As to the Deliberate Actions ground, the legislature could not reasonably have intended to immunize obviously corrupt elections where the resulting distortion of an election outcome could not be precisely traced and mathematically determined. * * *

We therefore hold that the burden upon a challenger seeking a special election under the Deliberate Actions ground in subsections 2(5) and 6(a)(3)(E) of the Election Contest statute is to conclusively demonstrate (a) the occurrence of an act or series of actions by one or more persons who knew or reasonably should have known that such conduct would make it impossible to determine which candidate receives the most legal votes cast in the election, and (b) the deliberate act or series of actions so infected the election process as to profoundly undermine the integrity of the election and the trustworthiness of its outcome. A special election should be ordered only in rare and exceptional cases. * * *

In the present case, the undisputed trial court findings establish the occurrence of a deliberate series of actions that "perverted the absentee voting process and compromised the integrity and results of that election." The court found that this scheme subjected "the nave, the neophytes, the infirm and the needy" to "unscrupulous election tactics," that there was "convincing evidence that established the pervasive fraud, illegal conduct, and violations of elections law," and that the misconduct was "voluminous, widespread and insidious." * * *

In view of the uncontested factual findings of the trial court, we conclude that Pabey has established that a deliberate series of actions occurred making it impossible to determine the candidate who received the highest number of legal votes cast in the election and that the trial court erred in denying Pabey's request for a special election. While this remedy will be appropriate only rarely and under the most egregious circumstances, it is compelled by the facts of this case. * * *

Based upon this history, we conclude that eligible parties are authorized to contest elec-tions on grounds of intentional misconduct under the Election Contest Statute and that the court has authority to order that a special election be conducted where it finds that the occurrence of a deliberate act or series of actions makes it impossible to determine which candidate received the highest number of votes. * * *

Conclusion. We reverse the trial court's determination denying a special election and remand to the trial court with directions to promptly order a special election by issuing a writ of election pursu-ant to Indiana Code 3-10-8-3, and for all further proceedings consistent with this opinion. Any Petition for Rehearing must be actually received by the Clerk of Courts not later than ten calen-dar days following the date of this opinion, notwithstanding provisions to the contrary in Indiana Appellate Rule 54(B).

Shepard, C.J., and Rucker, J. concur.
Boehm, J., dissents with separate opinion in which Sullivan, J., concurs:

I respectfully dissent. In my view, the controlling question is not whether election law violations occurred. The trial court found they did, and that finding was plainly supported by the evidence. But the central issue here is whether the corruption was the cause of the election re-sult. The presence of corruption, even if widespread, is no basis to upset an election and nul-lify the votes of the electorate if a majority of untainted votes supported the winning candidate. As the majority opinion spells out in some detail, the trial court found election law violations, and they were not limited to a few isolated instances. But the standard set forth in Indiana law for overturning an election it is that it is impossible to determine the candidate who received the highest number of votes. Ind. Code 3-12-8-2 (1999). The trial court, like the majority, read the highest number of votes to mean legitimate votes. The trial court, despite the portions of the judgment quoted by the majority, found that the plaintiffs failed to carry their burden of establishing that. * * *

If corruption is widespread but has no effect on the election result, neither the public nor the parties should be put to the trouble of redoing the election. This does not mean the plaintiffs had to prove enough individual in-stances of unlawful votes to tip the election. It does mean that they needed to prove that the unlawful practices made it more likely than not that the result of the election, measured by lawful votes, was unknowable. There are a number of ways that a statistician might attempt to establish that it was a more probable than not that the deliberate acts affected the result. Here the trial courts judgment turned on its finding that there was no such showing. Neither plaintiffs nor the majority show how, on this record, the trial court was incorrect, much less clearly erroneous. * * *

I also believe the majoritys standard for judicial intervention in an election is problem-atic. The statute as written provides a relatively objective standard: are enough votes tainted that it is more likely than not that the result of the election, measured by lawful ballots, is unknown. The majority puts an essentially subjective patina on this test and calls for a new election when-ever wrongdoing profoundly undermines the integrity of the election and the trustworthiness of its outcome. This seems to me to invite courts to exercise essentially discretionary authority to alter election results that they deem undermined. Given that many Indiana trial judges are se-lected by partisan election, it seems an unwise expansion of the quite limited standard selected by the legislature, and one calculated to lead to claims of improper judicial interference with the electoral process. * * *

In sum, the legislature has provided that the election stands if, after disregarding the votes shown to be tainted, there is no showing that the result is unknown. The majority cites authori-ties under other statutes that suggest a lower threshold of proof may be sufficient to overturn an election. I believe under our statutes Indiana courts have no business imposing a higher standard on the electorate. The trial court faithfully carried out the charge given to it by the legislature and found that the plaintiffs case fell short of establishing the need for a new primary election. There is no doubt that the plaintiffs proved old-style election fraud in some cases, and highly in-appropriate behavior in others. But our disapproval of the conduct of some of the participants in the election is no basis to change its result without proof that the ultimate result was altered by the wrongdoing.
Sullivan, J. joins.

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to Indiana Decisions

Indiana Courts - U.S. Attorney indicts judge and two others in NW Indiana

The Munster Times is reporting:

U.S. Attorney General Joseph Van Bokkelen today indicted two prominent people on criminal charges. Former Schererville Town Court Judge Deborah Riga was charged with extortion. James H. Fife has been indicted on four counts of tax fraud for hiding income that would have resulted in the payment of $325,000 in taxes. According to Van Bokkelen, he hid his income from East Chicago to avoid paying those taxes. His wife Karen H. Krahn has been indicted on two counts of tax fraud.
More coming

And from earlier today: "Audit provides ammunition for Schererville court probe: State officials ask former Town Judge Deborah Riga to repay $4,770."

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to Indiana Courts

Indiana Decisions - Court of Appeals posts three today

Eugene D. Vandergriff v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

Eugene C. Vandergriff appeals his convictions for Neglect of a Dependent, as a Class C felony, and Battery, as a Class D felony. Vandergriffs sole contention on appeal is that his convictions violate the Indiana Double Jeopardy Clause. We affirm. * * *

Although we do not condone the prosecutors method of bringing the charges in this case, the two convictions do not violate the common law rule prohibiting dual convictions for the same act. As Justice Boehm noted in Guyton [Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) ], we cannot say that there is no reasonable possibility that the jury used the same evidence to support the neglect and battery charges. However, we can say that the facts supporting these two crimes are separate and distinct and, thus, no common law double jeopardy violation occurred. Overwhelming evidence of two distinct crimes was presented to the jury. In addition, the jury was not directed, through closing argument or in final instructions, to base the charges on the same act. Further, at one point during closing argument the prosecutor referred to the grabbing incident as the one establishing the battery, and defense counsel referred to the tossing incident as the one establishing the battery. Therefore, we conclude, as a matter of law, that the facts supporting the neglect do not embrace all of the facts supporting the battery. We hold that Vandergriffs convictions for Class C felony neglect and Class D felony battery may stand. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.

Dejuan Emerson v. State of Indiana (8/6/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
Dejuan Emerson appeals from the denial of his petition for post-conviction relief and presents the following issues for review: 1. Whether Emersons appellate counsel was ineffective when she failed to argue on direct appeal that the State presented insufficient evidence to prove that Emerson had acted in concert or by agreement with another. 2. Whether stare decisis requires reversal of Emersons murder conviction. We affirm. * * *

[Issue 1- Appellate Counsel] We agree with our supreme courts statement in its Order on Rehearing that the evidence in Emersons trial better supports affirming the convictions on the basis of accomplice liability because it tends to establish that Porter and Emerson actually arrived at the basketball court together. Appellants App. at 100-01. Accordingly, Emerson has not shown that the unraised issue is significant and obvious from the record, and he has not demonstrated that the post-conviction court clearly erred when it concluded that his appellate counsel was not ineffective. * * *

[Issue 2 - Stare decisis] Emerson also asserts that his murder conviction warrants reversal under the doctrine of stare decisis. As the State points out, Emerson failed to raise that argument in either his original petition for post-conviction relief or his amended petition. And during the post-conviction hearing, Emersons counsel argued only that the doctrine of inconsistent verdicts should apply to Emersons case. Issues not raised in a petition for post-conviction relief may not be raised for the first time on appeal. See Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002), trans. denied. The failure to raise an alleged error in the petition waives the right to raise that issue on appeal. Id. Because Emerson failed to raise his stare decisis argument to the post-conviction court, the argument is waived.

Waiver notwithstanding, stare decisis does not apply here. The doctrine of stare decisis states that, when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. See State v. Mileff, 520 N.E.2d 123, 126 (Ind. Ct. App. 1988) (citing Blacks Law Dictionary 1577 (4th Rev. Ed. 1968)). In Porter, the court determined that, based on the evidence presented at Porters trial, the State failed to present sufficient evidence that Porter and Emerson had acted in concert or by agreement. Here, Emerson argues that his appellate counsel was ineffective. Further, as the court noted in its Order on Rehearing, the State tried Emerson and Porter separately, and the evidence in Emersons case was different from the evidence in Porters. In the end, contrary to Emersons contentions, the holding in Porter regarding the sufficiency of the evidence in that case does not dictate the outcome of his ineffective assistance of appellate counsel claim. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.

Marvin Taylor v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Appellant, Marvin Taylor, brings this interlocutory appeal from the trial courts denial of his motion to suppress evidence discovered during an inventory search of his automobile. We affirm. * * *

In short, Officer McPherson was faced with a driver who was not lawfully permitted to drive. Whether he was arrested or merely cited, Taylor could have quickly returned to drive his vehicle and again been in violation of the law. Even though Taylor could have been given the chance to make arrangements to properly take care of the vehicle, given the circumstances we are unable to say that the decision to impound the car was unreasonable. See United States v. Stephens, 350 F.3d 778 (8th Cir. 2003) (search of automobile was reasonable under Fourth Amendment as inventory search where defendant was arrested for driving without valid license so that he could not continue to operate vehicle, making it appropriate for police to take immediate possession of and secure vehicle).

Because we have determined that one of the reasons given by Officer McPherson did warrant impoundment, we need not address the other reasons given by McPherson. The judgment of the trial court is affirmed.
VAIDIK, J., and MAY, J., concur. [Note: This decision may have originally been unpublished.]

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to Indiana Decisions

Indiana Decisions - Supreme Court orders new election in East Chicago!

The 3-2 decision unfortunately is not available yet online!

But the Indianapolis Star is reporting:

The Indiana Supreme Court today ordered a new Democratic mayoral primary election in East Chicago, saying the 2003 contest that longtime Mayor Robert Patrick claimed victory in was fraught with widespread corruption.

"When as here an election is characterized by a widespread and pervasive pattern of deliberate conduct calculated to cast unlawful and deceptive ballots, the election results are inherently deceptive and unreliable," the court said in a 3-2 ruling.

The high court cited a lower court's findings that Pastrick's supporters engaged in a "predatory pattern" during the campaign against George Pabey that included "weekly exhortations in meetings" and "direct solicitation of a vote for cash."

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to Indiana Decisions

Indiana Decisons - Four from the 7th Circuit Today

Haslund, Shannon L. v. Simon Property Group (ND Ill.)

Before BAUER, POSNER, and COFFEY, Circuit Judges.
POSNER, Circuit Judge. In a diversity suit for breach of contract governed by Illinois law, the district judge after a bench trial awarded Shannon Haslund $537,634.41 in damages, plus prejudgment interest, against Simon Property Group (SPG). 284 F. Supp. 2d 1102 (N.D. Ill. 2003). SPGs appeal argues that the provision of the contract that it was found to have violated was too indefinite to be enforceable, that no injury was proved, and that in any event no prejudgment interest should have been awarded. * * *

Although SPGs breach of her employment contract appears to have been deliberate and indeed reprehensible, without proof of actual loss Haslund is entitled only to nominal damages, Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 673 N.E.2d 369, 378 (Ill. App. 1996); Movitz v. First Natl Bank of Chicago, 148 F.3d 760, 765 (7th Cir. 1998) (Illinois law)which eliminates any entitlement to prejudgment interest, as well.

The judgment is reversed with instructions to enter judgment for the plaintiff for nominal damages only. REVERSED AND REMANDED, WITH DIRECTIONS.

Pugel, Diane v. Bd Trustees Univ IL (CD Ill.)
Before POSNER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. After dismissal for academic misconduct from the University of Illinois (the University), Diane Pugel brought this 42 U.S.C. 1983 action against the Board of Trustees of the University (the Board). She alleged violations of her due process and free speech rights. Ms. Pugel also brought state claims. The district court dismissed the federal claims and declined to exercise supplemental jurisdiction over the state claims. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
USA v. Singletary, Jahneria (SD Ill.)
Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. * * * We next turn to Singletarys two remaining claims which consist of challenges to the district courts application of the U.S. Sentencing Guidelines. First, Singletary argues that the district court erred by not granting her a three-point sentence reduction for acceptance of responsibility. Second, Singletary contends that the district court erred by finding that her relevant conduct involved between 500 grams and 1.5 kilograms of crack cocaine. * * * 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 Singletarys case to the district court for resentencing.

III. CONCLUSION. Singletarys challenge to the pretrial ruling against her has been waived by her unconditional guilty plea. However, Singletarys sentence is VACATED and the case will be REMANDED for resentencing consistent with this Courts opinion in United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004).

Burrell, William D. v. City of Mattoon (CD Ill.)
Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
KANNE, Circuit Judge. William D. Burrell served as the city clerk for Mattoon, Illinois from July 1994 until April 30, 2001, when he was allegedly terminated from the position by the newly elected mayor and incoming city council. The new mayor and city council had not taken office at the time of Burrells alleged firing; yet, Burrell sued the City, the mayor-elect, and incoming city council members in federal court, claiming that they deprived him of his job without due process of law in violation of 42 U.S.C. 1983. The district court granted summary judgment in favor of the defendants on Burrells 1983 claim and on his supplemental state law claims. We affirm.

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to Indiana Decisions

Indiana Courts - Blakely Waiver in State Courts?

I've been told that a "Blakely waiver" is being used in the Marion County courts. I'd like to post a copy here -- you can fax it to me (contact me for #), or scan and email it.

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to Indiana Courts

Indiana Decisions - Transfer List for Week Ending August 6, 2004

Here is the Indiana Supreme Court's transfer list for the week ending August 6, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Only two cases were granted transfer, Donald Davis v. State (5/24/04) and Robert L. Neale v. State (6/11/04). If neither sounds familiar, it is because both were marked "Not for Publication."

Also, the Court denied transfer in, among a number of other cases, Commissioner Sally McCarty v. Vicki L. Sanders, et al. (4/7/04 IndCtApp) [Medical Malpractice; Statutory Construction].

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to Indiana Transfer Lists

Law - GAO reports on federal judges disclosure reports

A story yesterday in the Washington Post, headlined "U.S. Judges Getting Disclosure Data Deleted: GAO Cites 661 Requests to Withhold Information From Ethics Act Reports," begins:

Nearly 600 times in recent years, a judicial committee acting in private has stripped information from reports intended to alert the public to conflicts of interest involving federal judges. The committee decided that the information removed might tend to endanger a particular judge or put his or her financial investments at risk, according to a study by the Government Accountability Office (GAO), the investigative arm of Congress.

In 55 instances, the committee withheld all information on the disclosure reports -- including details about outside income, gifts, business contracts, debts, stocks and the value of holdings. The study examined disclosure reports filed under the Ethics in Government Act from 1999 through 2002.

Specialists in judicial ethics said they were startled at the breadth of the excisions -- and particularly that the material cut included financial information that appeared to present little safety risk. * * *

In 1998, Congress passed legislation allowing judges to request redactions. The law authorized the U.S. Judicial Conference, in consultation with the U.S. Marshals Service, to delete specific information if it determined that the information could endanger a judge. The Judicial Conference is the principal policymaking body for the federal courts, and is chaired by Chief Justice William H. Rehnquist. The redaction provision is in place through 2005, when Congress will decide whether to make it permanent.

There are no similar provisions available for the president or members of Congress, whose reports are immediately available to the public on the Internet, in print and through computer terminals in the Cannon House Office Building. Officials of those branches do not consider the information a safety risk, the GAO report said. There is no known case in which the reports have been used to harm a judge or another public figure.

In 2002, 76 requesters received disclosure reports from the judiciary. Lawyers and plaintiffs have said they are reluctant to seek them because judges are supplied with the names of the requesters before documents are released.

The judges' reports are available to the public only on paper and only after lengthy delays. In 2002, the average delay was 90 days. Requesters interviewed by the GAO "each expressed frustration at how long it took," the study said.

Here is a link to the GAO report itself, titled: Federal Judiciary: Assessing and Formally Documenting Financial Disclosure Procedures Could Help Ensure Balance between Judges' Safety and Timely Public Access, GAO-04-696NI, June 30, 2004.

[Update 8/29/04.] The above GAO link is no longer good, but, thanks to How Appealing, here are two other links to the document, in PDF and html versions.

Posted by Marcia Oddi on Friday, August 06, 2004
Posted to General Law Related

Thursday, August 05, 2004

Indiana Law - More on Blakely in Indiana

Mike Limrick, referenced in the last post, has sent along his new article from the July/August 2004 Res Gestae (and thanks to the ISBA for permission). The article is titled "Revising Indiana's sentencing scheme: Where do we go now?" Here is a quote taken from his exploration of alternatives that may be open to defendants:

The biggest hurdle to an ineffective assistance claim under these circumstances is whether Indiana defense counsels' consistent failure to raise the Apprendi argument since 2000 has been an objectively unreasonable practice. * * * There has been one reported Indiana appellate decision addressing Apprendi and non-capital sentence enhancements, and that decision found no Apprendi violation. It is arguable, then, whether that issue would be considered -- until Blakely -- as one that was both "obvious" and "clearly stronger than the rasied issues."

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Law

Indiana Law - National Report Cites Indiana as "fundamentally affected by Blakely"

The Vera Institute of Justice, as reported by Douglas Berman of Sentencing Law and Policy, "has just released a publication that looks at the impact of Blakely on state sentencing systems. The Vera report is entitled Aggravated Sentencing: Blakely v. Washington Practical Implications for State Systems, and it can be accessed here."

So what does it say about Indiana?

Five statesKansas, Minnesota, North Carolina, Oregon, and Tennesseeemploy presumptive sentencing guidelines systems that enable judges to enhance sentences by finding aggravating facts, as does the Washington system addressed by the Court. At least eight additional non-guidelines statesAlaska, Arizona, California, Colorado, Indiana, New Jersey, New Mexico, and Ohioemploy functionally equivalent presumptive sentencing systems. The systems in this core group of 13 states appear to be fundamentally affected by the Blakely decision. * * *

Presumptive (non-guidelines) sentencing systems
At least eight states that do not formally employ guidelinesAlaska, Arizona, California, Colorado, Indiana, New Jersey, New Mexico, and Ohiononetheless employ presumptive sentences and require judges to provide justification when they deviate from those sentences. Although these states systems lack the multiple ranges of sentencing guidelines systems, they are comprehensively structured and functionally equivalent to guidelines, at least for Sixth Amendment purposes. In all of theseoften referred to as presumptive sentencing or determinate sentencing systemsstatutes set a single presumptive sentence or range of sentences for each offense within the statutory range. The judge must impose that presumptive sentence or one within the presumptive range and may impose a higher term only after finding aggravating factors.

For more information, access the 11-page Vera report directly here. For more details about Indiana statutes and caselaw, see the 7/31/04 Indiana Law Blog entry titled "Overview of Blakely in the 7th Circuit and in Indiana State Courts: Part II. Blakely in Indiana State Courts," available here, which concluded about Indiana's law:
[A]lthough 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."
Also see Mike Limrick's 2003 article "Overlooked consequences of Apprendi: the unconstitutionality of Indiana's non-capital sentencing," via this July 22 entry.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Law

Indiana Decisions - Two Court of Appeals Opinions Today

Kimberly S. Schmidt v. David A. Schmidt (8/5/04 IndCtApp) [Family Law]
Sharpnack, Judge

The trial court interpreted the parties antenuptial agreement and concluded that, under the agreement, Husband and Wife agreed to separate their property upon dissolution of their marriage. Wife raises two issues, which we consolidate and restate as whether the trial court erred by granting declaratory relief to Husband based upon its interpretation of the antenuptial agreement as separating Husband and Wifes property upon dissolution of their marriage. * * *

Reversed and remanded.
ROBB, J. concurs
DARDEN, J. concurs in result with separate opinion

George Frankl and Tom H. Smith v. State Lottery Commission of Indiana (8/5/04 IndCtApp) [Procedure; Contract]
Bailey, Judge
[Issue] [W]hether the trial court erroneously granted summary judgment to the Lottery because the Lottery closed instant games and refused payment of prizes absent compliance with a contractual obligation to announce game end dates. * * *

When Smith purchased his ticket, on September 15, 1996, the back of the card contained the following statement: All prizes must be claimed within 60 days of announced end of game.

Having discovered that he had a winning ticket, Smith filled out the back of the ticket as required and presented it to the retailer on January 20, 1997, demanding his five dollar prize. Unbeknownst to Smith, the game had ended September 30, 1996, and the last day to claim prizes was on November 29, 1996. The retailer informed Smith that it was too late to redeem his ticket. On January 22, 1997, Smith went to the principal office of the Hoosier Lottery in Indianapolis in an attempt to claim his prize. There he was told that the game was over and that nothing could be done to obtain his prize. There were no signs posted at the retailers site announcing a closing date for the game nor was Smith advised by the retailer or the Lottery of an administrative appeal process or given a claim form. * * *

On February 7, 2002, the trial court granted Smiths motion to certify the case as a class action and divided the Class into two subclasses: (A) purchasers of scratch-off lottery tickets between 1989 and 1997 who actually presented a winning ticket to the Lottery or a retailer and were refused or denied payment (Class A); and (B) all other purchasers of winning scratch-off tickets between 1989 and 1997 who have not received payment for the winning tickets (Class B). * * *

Material questions of fact are not appropriate for resolution by summary judgment. T.R. 56(C). It is for the fact-finder to decide whether the conduct of the Lottery precluded purchasers who tendered their prize-winning tickets from obtaining a substantial benefit of the contract. We therefore reverse the summary judgment order in favor of the Lottery and against the members of Class A.

However, summary judgment was properly granted to the Lottery with respect to the claims of the members of Class B because the Lotterys designated materials negated the damages element of their breach of contract claim. The members of Class B elected not to timely tender any lottery ticket for a prize after either the end date or official repeal of the games - and thus suffered no damages attributable to the conduct of the Lottery. Affirmed in part, reversed in part, and remanded.
BAKER, J., and DARDEN, J., concur.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Decisions

Having trouble with site

If none of my fixes work, it will be back Monday.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to

Indiana Decisions - Two 7th Circuit Opinions Today

Bronisz, Robert v. Ashcroft, John (Petition for Review of an Order of the Board of Immigration Appeals) Dismissed for lack of jurisdiction.

Cooper, Brian W. v. USA (WD Wis.) Extensive discussion of ineffective assistance of counsel claim.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Decisions

Indiana Law - Political Gerrymandering in Indiana

The Indianapolis Star has an excellent and lengthy, front-page story this morning with this headline: "Drawn together: No more than 20 of Indiana's 100 House races will be competitive this fall, a reality politicians fuel by crafting districts that keep them in power and reduce voter turnout." Some quotes:

In many parts of Indiana, voters don't choose their lawmakers. The lawmakers choose their voters.

The result is a politically stacked deck, so safe for incumbents that members of both parties say only 15 to 20 of the 100 Indiana House elections will be competitive when voters go to the polls this fall. * * *

Here's how drawing those district lines works: After the national census every decade, state lawmakers draw new legislative district boundaries to reflect population changes -- and political considerations. The party in power controls the process, usually drawing the lines to protect incumbent members. That's done by adding to or subtracting from precincts to adjust the number of voters in a district for or against the controlling party.

In 2001, the Indiana House districts were redrawn by Democrats, who had the majority in the House of Representatives at the time of the 2000 census.

A Republican won the 86th District by a nearly 2-1 margin in the 2000 election. Two years later, after the district boundaries were redrawn to include more Democratic precincts from Indianapolis, Orentlicher won the seat. The tactic, which both parties have done when given the chance, produces a large number of "safe" districts. The result? Few surprises among the 100 Indiana House elections held every two years.

This year, 43 of the 100 House members have no major-party opposition. Of the remaining 57 facing opponents in November, most are in districts with such strong party majorities that they face little chance of losing.

To some, the creative map-drawing seems to negate the will of the voters.

In the last state legislative races two years ago, Republican House candidates received a total of 758,088 votes across the state -- far more than the 549,723 votes received by Democratic candidates.

Despite that showing -- winning 57 percent of the votes cast -- Republicans won 49 percent of the seats. Democrats had 41 percent of the vote but won 51 percent of the seats, maintaining control of the House.

The Republican-controlled Senate -- with different districts and boundaries -- was more balanced. In elections two years ago, GOP candidates got 61 percent of the vote statewide and won 60 percent (15 of 25) of the seats. Democrats got 37 percent of the vote and won about 40 percent of the seats (10) up for election. Libertarian candidates won 2 percent of the votes and no seats.

Another measure of lopsided districts in the House -- those with substantially more voters from one party -- is the collective margin of victory in those races. If many races are highly competitive, the total statewide votes between winners and losers should be close.

But in the 2002 House races, winners outpolled losers by 452,825 votes to 320,025. There were some close races, but on the whole, the winners, most of them incumbents, won by a margin of 18 percentage points.

The story ends with this:
Nonpartisan or politically balanced commissions draw district boundaries in Iowa and Illinois, but [James L. McDowell, a political science professor at Indiana State University, in Terre Haute] said he doubted that could happen in Indiana.

"I don't see the political parties, either one, giving up control of their destiny."

On 23rd the Star had an editorial titled "Blame gerrymandering for lack of competitive political races." That editorial ended with the Star stating "[V]oters can demand that they be given true choices on Election Day by insisting that legislators put an end to gerrymandering. Fair districts not only prompt more competition and higher turnout but also better government. Incumbents who actually have to work to win votes before Election Day are far more likely to listen and respond to constituents." But, as I concluded my Indiana Law Blog entry at the time: "But the Star does not explain how to get from here to there. The voters' ballots are their weapons, but carefully drawn districts have already blunted any real possibility of putting the voters back in control of elections."

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Law

Indiana Law - Making it harder to bail out in Delaware County

The Muncie Star-Press has a story today, headlined "New system could lead to longer jail stays," that reports that "under a new rule that is expected to be enacted in the local court system," defendants will have to wait to appear before a judge before bonding out of jail. Some quotes:

Judges argue the new rule would only impact a small handful of defendants and it would prohibit repeat offenders from bonding out of jail and committing new crimes within hours of their release.

So far, the rule has support from at least three of the county's five circuit court judges, and it is expected to be enacted in the next few months once it is signed by all of them, said Circuit Court 1 Judge Marianne Vorhees, the county's presiding judge.

"We are not saying they are not going to get a bond," Vorhees said. "They are just not going to get bond until they see a judge. This gives us more time to look at these serious offenders and it gives the victims time to get a protective order and take care of whatever they need to protect themselves."

Under the current system, Delaware County jail employees automatically assign a bond based on the class of the crime. A person arrested for a class A felony - which carries a possible 50-year prison term upon conviction - is assigned a $30,000 bond, and usually has to pay 10 percent of that figure to a bondsman to secure their release.

But under the new rule, everyone arrested on class A and B felonies - and some class C felonies * * * would not automatically be assigned a bond. Instead they will have to wait until they see a judge. * * *

Local defense attorney Michael J. (Mick) Alexander said he was concerned that the new rule would give police officers too much power. Alexander - a former prosecutor and police officer - said that officers frequently arrest people on preliminary charges that are far more serious than the formal charges eventually filed by the prosecutor's office. The new rule could allow police to keep a suspect in jail without bond for an extended period, he suggested.

"What we are doing here is letting police officers decide who doesn't get bond and that is not proper," Alexander said. "The people who are going to get hampered by this are the poor people that don't have a lot of money right away to afford an attorney. It sounds good to the general public, but incidentally, it's not going to work."

If this sounds familar, the Indiana Law Blog had a very brief entry June 28th reporting that Vanderburgh County had adopted a similar change.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Law

Environment - Stories today

Odor. Two stories today (use search box at right to find earlier stories) about the odor problem in New Castle. The AP reports:

NEW CASTLE, IND. -- Officials have taken air samples in Henry County to try to find the source of an unpleasant odor.

County Health Department Administrator Doug Mathis took two air samples this week near the city's Metaldyne factory, one upwind, the other downwind.

The samples were delivered to the Indiana Department of Environmental Management for analysis. Mathis said the air was sampled for 40 minutes. The odor was noticeable during the collection, he said.

The Muncie Star-Press reports:
NEW CASTLE - Two state legislators, the mayor, and representatives of two state agencies are among the government officials expected to attend a meeting on Tuesday to hear complaints about a longtime odor problem.

Two dozen concerned citizens met at New Castle Chrysler High School on July 23 to discuss the odor. Public officials were invited to that meeting, but none attended.

The consensus of those attending the July meeting was that the Metaldyne New Castle factory was the source of the musty, moldy smell.

Gibson Generating Plant. Updating earlier stories (use search box at right) about Cinergy's problems with its pollution control equipment at the Gibson plant is this story from the Evansville Courier-Press. Some quotes:
Officials at a Gibson County power plant have reached an agreement on operating pollution controls there in a way that will control an unintended plume of acid mist created by the equipment.

Until the utility shut down the controls late last month under threat of legal action, the plant had been sending a haze-like acid mist across the Wabash River into Mount Carmel, Ill. * * *

Also involved in the agreement were the U.S. Environmental Protection Agency, Illinois EPA, Illinois Attorney General, Mount Carmel officials and the Indiana Department of Environmental Protection. With their input, Protogere said, Cinergy revised its operating guidelines for pollution controls on two of the utility's generating units.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Environmental Issues

Indiana Courts - Lawrence mayor seeks to bar law firm

The Indianapolis Star reports today, in a page B1 story headlined "Lawrence mayor seeks to bar law firm: Cantwell asks judge to disqualify Ice Miller from city's battle to cut ties to water company," that:

Lawrence Mayor Deborah Cantwell wants Indianapolis-based Ice Miller, the state's largest law firm, sidelined during a legal battle to cut her city's ties to a private water company.

During a hearing in Marion Superior Court on Wednesday, attorneys debated who will represent Lawrence Utilities LLC as the city tries to break the no-bid contract then-Mayor Thomas D. Schneider gave political associates who formed the company in mid-2001. * * *

City officials say Ice Miller should be disqualified because the firm's attorneys might have to testify at trial. Phillip L. Bayt, a managing partner for Ice Miller, wrote the initial contract with Lawrence Utilities at the direction of [then-Mayor Thomas D.] Schneider.

From mid-2001 through the end of last year, when Schneider left office, Ice Miller represented both the city and the water company. Now Ice Miller represents the water company. But Cantwell, a Democrat, says she won't consent to allowing Ice Miller to fight the city it once represented. Her administration is citing an ethical rule that prohibits lawyers from switching sides and working against the interests of former clients.

"There is an appearance of impropriety," City Attorney Stan Hirsch told Marion Superior Judge Cynthia Ayers.

Ice Miller's attorneys say Bayt and others at the firm acted as "scriveners" -- not attorneys -- when they drew up the city's initial contract with Lawrence Utilities. They say they should be allowed to defend the contract in court because they did not offer the city legal advice when they wrote it or receive any confidential information during negotiations that could put the city at a disadvantage. * * *

Bayt said his firm went to work for the water company soon after the contract was signed -- with permission from Schneider and Lawrence's city attorney at the time, David F. Rees. Schneider testified that Rees, not Ice Miller, had acted as the city's lawyer in the drafting of the initial contract with Lawrence Utilities. But Rees, in a sworn statement, said this was not his role.

"I did not provide, nor was I asked to provide, any legal opinion, written or oral, as to the validity or legality of the operating agreement at or before the time it was executed. As city attorney, I relied primarily upon Ice Miller to determine the legality of the proposed contract."

If everyone's telling the truth, Hirsch told the judge, the city of Lawrence under Schneider entered into a transaction involving services vital to the city and its residents, millions of dollars worth of assets, and a term of up to 50 years with a not-yet-formed company while seeking no legal advice.

Whether Ice Miller can keep representing Lawrence Utilities in the city's suit could hinge on whether Schneider or Rees had the power to waive the firm's conflicts on behalf of future mayors.

"The question here is whether there was collusion," said Michael A. Mullett, one of the state's leading public-interest utility lawyers who reviewed the water company transaction at The Indianapolis Star's request.

"Was there an arm's-length relationship between the company and the former city administration? Determining that is complicated by Ice Miller representing the city and now the water company."

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Courts

Indiana Courts - More on AG's RICO suit against East Chicago administration

More today on the RICO aspects of Attorney General Steve Carter's move Tuesday to sue the administration of East Chicago Mayor Robert Pastrick.

The Gary Post-Tribune reports, in a story titled "Lawsuit could produce order to reform in East Chicago:"

East Chicago will be under a corruption cleanup order if the state attorney general prevails in his civil racketeering case against Mayor Robert Pastrick and his top aides, according to the law professor who helped write the complaint.

Attorney General Steve Carter asked University of Notre Dame law professor G. Robert Blakey to help his office compile the civil case filed in federal court Tuesday, seeking to return $3.1 million of taxpayer money lost in a 1999 sidewalk paving scandal plus damages. * * *

Blakey wrote the original federal Racketeering Influenced and Corrupt Organization Act and helped author the majority of the state versions of the statute.

The statute was designed to go after corrupt politicians, not just its more famous applications against organized crime and drug cartels, Blakey said.

The attorney general will have to prove an ongoing criminal enterprise existed in East Chicago. If the state wins, not only will Pastrick and the other 26 defendants be subject to triple damages, but the judge could impose an action plan to weed the city of further corrupt acts, Blakey said.

The statute actually encourages judges to go beyond normal damages and look at ways the city itself could be reformed, Blakey said.

For instance, the federal courts installed a set of trustees to oversee the Teamsters, after the unions leadership was found to have ongoing ties to organized crime.

And the Munster Times reports, in a story headlined "RICO suit demands Pastrick's ouster: Removal of mayor unlikely, but law has worked with corrupt union officials, expert says:"
The Indiana Attorney General is asking a federal judge to throw Mayor Robert Pastrick out of office.

The demand for the mayor's removal is buried within the fine print of the 60-page racketeering lawsuit Attorney General Steve Carter filed against the city administration Tuesday in U.S. District Court in South Bend. * * *

However, Pastrick's ouster also is a possible, if unlikely outcome, G. Robert Blakey said. Blakey, a Notre Dame law professor and expert on racketeering law, helped Carter's office frame the lawsuit.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana Courts

Economic development - Trump's French Lick casino

The Louisville Courier-Jounral has a good analysis piece this morning on the French Lick casino, titled "Winner for French Lick? Indiana casino plan thrills residents - Not all analysts think it can succeed." It includes photos of the two hotels, a drawing of the proposed casino, and a map of the area. Some quotes:

When Indiana regulators selected billionaire Donald Trump's company last month to create the state's 11th casino in historic French Lick, orange-shirted supporters cheered the decision as a turning point for the community.

They saw it as good news, particularly on the economic front, for a town whose heyday had come and gone decades ago. In the Trump Hotels and Casino Resorts Inc. proposed $108 million project, Orange County supporters envisioned jobs, long-awaited renovations for two historic but aging hotels, and, ultimately, an economic development tool to propel the Springs Valley back to prominence as a major Midwestern tourist attraction. * * *

Orange County residents say the incentives are much needed in an area whose prosperity peaked roughly eight decades ago.

French Lick was home to resort hotels famous for their spas and mineral springs. The French Lick Springs Resort & Spa and West Baden hotel once catered to clients such as Lana Turner, Bob Hope and Al Capone. The area was a thriving gambling destination with 17 illegal casinos before the Great Depression.

"It was really a fancy place for that time," said Wilma Davis, the Orange County historian. "People came there from all over the world."

Orange County's fortunes plummeted when the stock market crashed in 1929. The area's grand hotels emptied. Gambling illegal then but unofficially allowed survived until 1949 when an order from the governor halted the run.

Posted by Marcia Oddi on Thursday, August 05, 2004
Posted to Indiana economic development

Wednesday, August 04, 2004

Indiana Decisions - One Court of Appeals Opinion Today

Christina M. Allgood v. Meridian Security Insurance Company (8/4/04 IndCtApp) [Insurance]
Robb, Judge

Meridian Security Insurance Company insured a vehicle owned by Christina Allgood. After the vehicle sustained a loss, Meridian paid for repairs but refused to pay for the diminished value of the vehicle. Allgood sued, seeking a diminution in value payment. The trial court dismissed her complaint for failure to state a claim upon which relief could be granted. On appeal, we held that Allgood was entitled to a diminution in value payment upon proper proof, and therefore reinstated her complaint and remanded to the trial court for further proceedings. Allgood v. Meridian Security Ins. Co., 807 N.E.2d 131 (Ind. Ct. App. 2004). Meridian has petitioned for rehearing, and the Insurance Institute of Indiana, Property Casualty Insurers Association of America, and National Association of Mutual Insurance Companies, all insurance trade associations, have moved to appear as amici curiae substantively aligned with Meridian. We grant Meridians petition and the motion of the proposed amici curiae for the limited purpose of addressing certain practical consequences predicted by them as a result of the opinion, but reaffirm our earlier decision in all respects. * * *

[W]e will address the public policy argument Meridian and the amici curiae make centering on the negative impact they say the opinion will have on the insurance industry, which is also a new argument. * * *

Meridian notes that what was once a straightforward process of evaluating and compensating insureds for repairs to their vehicles will now be an unworkable framework of attempting to identify and quantify the vehicles diminished value. Meridian states that in many cases, the existence and extent of the diminished value will not be determinable until and unless the vehicle is sold at some future date. There is no basis for such an assertion, as property is valued every day for purposes other than sale of the property. It is true, as Meridian states, that the extent of the loss will depend upon the age, type, condition, and mileage of the vehicle, the type and extent of the damage, and the nature of quality of the repair. And as with any other insurance claim, the insured may not be satisfied with the settlement offered by the insurer. However, if litigation ensues, the burden of proving the diminished value is on the insured.

The amici curiae contend that, based upon their observation of the nationwide phenomenon of diminished value litigation, a flood of class action lawsuits can be expected to follow our decision, the scope of coverage will continue to increase to include intangibles resulting in a windfall to the insured, and a substantial increase in insurance premiums is likely. However, the dire predictions of the amici curiae are not borne out by anything other than their unsupported assertions.

Although we acknowledge a potential for dispute in collision damage claims currently pending, we believe that a probable practical consequence of our decision is that insurers will now include an additional exclusion in their policies one which specifically states that the insurer will not pay for diminution in value. Meridian could always have written its policies to exclude such a loss, but did not.

Subject to these observations, we reaffirm our original opinion.
SULLIVAN, J. concurs.
HOFFMAN, Sr.J. would grant the motion to appear as amici curiae and grant the petition for rehearing without limitation and affirm the trial courts order.

The link at the beginning of this entry leads to a pdf version of the decision that I prepared (in lieu of the Court's html version), so that it is both easier read and easier to determine which counsel represented a party and who appeared as amici curiae.

Here are links to both the earlier Allgood decision from 4/28/04 (next to last in list) and to the 6/21/04 decision in Dunn v. Meridian Mutual.

Posted by Marcia Oddi on Wednesday, August 04, 2004
Posted to Indiana Decisions

Indiana Decisions - Two 7th Circuit Opinions Today

Eric Joelner, Fish, Inc. dba XXXtreme Entertainment, Free Speech, Inc. and First Amendment, Inc. v. Village Washington Park, Ill. (SD Ill.)

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. * * * with a population of only 5,300 covering 2.5 square miles at the confluence of two interstate highways leading into St. Louis, Missouri, adult entertainment has been the industry of Washington Park. As of May 2003, there were four licensed, one unlicensed, and two newly licensed adult cabarets. Each licensed cabaret generates around $100,000 annually in licensing and other fees for the Village. And because the population of Washington Park decreased by more than 2,000 residents between 1990 and 2000, with a corresponding loss of about $300,000 a year in state funding, the income which the adult entertainment industry generates for the Village is critical. * * *

For the reasons set forth below, we find that the district court correctly refused to preliminarily enjoin the Village from enforcing the two ordinances, and we further find that the court appropriately granted the preliminary injunction requiring the Village to allow Joelner to continue to operate his bookstore business at 2226 Kingshighway. However, we also determine that the district court erred in granting the injunction requiring Joelner to pay the disputed fees and/or arrearages in order to continue operating his bookstore and requiring the Village to conduct a new hearing to consider Joelners cabaret license application for the 2226 Kingshighway location.

Guise, Carroll v. BWM Mortgage LLC (ND Ill.)
Before FLAUM, Chief Judge, and DIANE P. WOOD and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. The plaintiffs claim relief under the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., alleging that the defendants engaged in unlawful lending practices in connection with a mortgage on their home. The district court dismissed their lawsuit on the pleadings and denied their motion for leave to file an amended complaint. For the reasons stated herein, we affirm.

Posted by Marcia Oddi on Wednesday, August 04, 2004
Posted to Indiana Decisions

Law - Blakely waiver?

This paragraph from this entry today in Jason Hernandez' Blakely Blog caught my attention:

Talk about bad timing. Imagine having your sentence affirmed on June 23, 2004 and then a day later, Blakely is decided. You then petition for a rehearing, raising Blakey issues and the court says that because you didn't raise the issue on the 23rd, you're out of luck. It happened in the 11th Circuit in US v. Levy, 2004 U.S. App. LEXIS 15924 (11th Cir., 2004) (per curiam). Ouch! Is it me, or does it rub you the wrong way that none of the judges put their name on this opinion?
Douglas Berman also referred to this ruling this morning in Sentencing Law and Policy blog. Access US v. Levy here.

Posted by Marcia Oddi on Wednesday, August 04, 2004
Posted to General Law Related

Indiana Courts - Attorney General Sues East Chicago Mayor

The Munster Times today has five stories on Attorney General Steve Carter's move yesterday to sue the administration of East Chicago Mayor Robert Pastrick. Some quotes from the lead story:

Carter accuses Pastrick of masterminding a pattern of corruption and theft to win the 1999 Democratic city primary with what the lawsuit calls a "Sidewalks for Votes Scheme" to buy re-election with free concrete and tree-trimming services. Carter also alleges Pastrick won the 2003 Democratic primary by stealing absentee ballots, which he said shows a pattern of continuing corruption. * * *

As attorney general, Carter only can file civil action against an individual. He said his investigation is separate from that of U.S. Attorney Joseph Van Bokkelen, who filed the criminal charges against the six city employees. * * *

Carter has filed separate litigation now pending before the Indiana Supreme Court to overturn the controversial results of the 2003 race in which Pastrick defeated Councilman George Pabey by 278 votes.

Pabey displayed evidence of what he claimed were absentee votes cast from empty lots or vacant homes and by people living outside the city or who received improper assistance from campaign workers.

Special Lake Superior Court Judge Steven King issued a 104-page opinion last summer that Pastrick's victory was a "textbook example of chicanery," but left Pastrick's victory intact.

Another story reports: "State consults RICO writer: Notre Dame professor has worked to untie organized crime since '60s." Some quotes:
When Indiana Attorney General Steve Carter began poring over the forms to bring civil RICO charges against East Chicago Mayor Robert Pastrick and at least 26 other people and companies for 1999's East Chicago concrete scandal, a first point of contact was G. Robert Blakey.

Blakey, a professor of law at Notre Dame Law School in South Bend, drafted the original federal Racketeer Influenced and Corrupt Organization Act in 1970.

He then helped draft and implement RICO-type laws in 22 states.

The former federal attorney, who became an expert in wiretapping laws, has a professional portfolio that dates back to the 1960s assassination investigations of President Kennedy and Dr. Martin Luther King Jr.

Posted by Marcia Oddi on Wednesday, August 04, 2004
Posted to Indiana Courts

Indiana Decisions - More on U.S. Attorney for ND Ind motion to stay

This AP story appears in several Indiana papers today: "U.S. attorney asks judges to delay sentencings." (Here is the link to Indiana Law Blog coverage from yesterday, including links to the filings.) Today's story inlcudes this:

The U.S. attorney for Central and Southern Indiana said yesterday that she did not plan a similar request for broad sentencing delays in her district. Susan Brooks said her prosecutors would keep in mind the Supreme Court's involvement as they considered each criminal case.

The Justice Department has not issued instructions to district attorneys on whether to proceed with sentencings, she said.

"I believe they are asking each of the U.S. attorneys and their offices to make that determination," Brooks said.

Posted by Marcia Oddi on Wednesday, August 04, 2004
Posted to Indiana Decisions

Tuesday, August 03, 2004

Indiana Decisions - More on the 7th Circuit's John Doe / City parks ban decision

"When thoughts are crimes" is the title of this editorial today in the Fort Wayne News Sentinel that discusses the hard issues involved. Here is the link to the Indiana Law Blog entry last weekend on the 7/30/04 decision.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to Indiana Decisions

Law - More on Talk of the Nation's feaure on Blakely this afternoon

I just finished listening to the NPR Talk of the Nation feature on Blakely v. Washington this afternoon and recommend it highly - access it here.

Host Neal Conan had read the Blakely opinion, quoted from it, and asked good questions. The segment was 40 minutes long. His first guest was David Savage. Next was U.S. Deputy Attorney General James Comey. Finally, Douglas Berman for the last 8 minutes. A lot of ground was covered, and the program included calls from some articulate listeners with real world experience in the criminal justice system.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to General Law Related

Law - Two public records stories today

The New York Times is reporting today that, at the Times behest:

[Judge Shira A. Scheindlin of United States District Court for the Southern District, in Manhattan] has ordered the Occupational Safety and Health Administration to disclose for the first time the company names and the worker injury and illness rates of the American workplaces with the worst safety records.

The ruling, issued Friday but released yesterday, came in response to a Freedom of Information Act request filed in October 2002 by The New York Times. The Times asked the agency, known as OSHA, to release the injury rates for 13,000 sites it had identified as having unusually high numbers of worker injuries and illnesses.

Up to now, the agency has published the names of the sites with worker injuries above an established norm, but not the injury rates for specific sites or any ranking to identify the worst offenders. In practice, it was difficult for reporters or the public to know where it was riskiest to work and whether the agency was effective in bringing about improvements.

[More] The case is NY Times v. U.S. Dept. of Labor (SD NY 7/29/04). The 22-page Judge Scheindin opinion may be accessed via Court Web.

The South Bend Tribune has an interesting story today about a teacher in the town of Walkerton:

Kathie Jerrell only set out to teach her students about local government, but she has ended up uncovering a new resource for history buffs and spurring this town to keep better care of its historical documents. * * *

After attending some council meetings and observing the town clerical staff at work, she decided she needed a thorough look at the town's records. Staff members warned her that her plan meant venturing down into the town hall's basement, which had become mildewed, moldy and extremely cluttered over the years. "The ladies upstairs said, 'You could not pay me to go down there,' " Jerrell said.

Jerrell uncovered a number of interesting records.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to General Law Related

Indiana Decisions - Three Court of Appeals Opinions Today

Kristin Hill v. Ebbets Partners LTD (8/3/04 IndCtApp) [Banking]
Baker, Judge

Kristin Hill appeals the trial courts entry of summary judgment in favor of Ebbets Partners, Ltd. (Ebbets) in its action against her for breach of contract. Specifically, Hill raises three issues, which we restate as: whether the trial court properly asserted personal jurisdiction over Hill, whether Ebbets violated the Fair Debt Collection Practices Act, and whether the trial court properly granted summary judgment to Ebbets. Finding no error, we affirm. * * *

Finally, Hill avers that the trial court should not have granted summary judgment to Ebbets. Specifically, she argues that, as a known incompetent, summary judgment could not be granted without first appointing her counsel. * * *

Hill bases her contention that she is a known incompetent on the fact that the trial court in her unrelated dissolution proceedings appointed a guardian ad litem for her for the limited purpose of assisting [Hill] in this dissolution proceeding. The dissolution court found that Hill exhibited unstable and erratic behavior and it appears to the Court that [Hill] is unable to effectively participate in these proceedings without assistance. However, there is no evidence that the dissolution court ever declared her to be incompetent. Moreover, as soon as Hill obtained legal counsel in the dissolution proceedings, the guardian ad litem was released. Thus, Hill has shown no basis for reversal on this issue. * * *

The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Michael L. Haddin v. State of Indiana (8/3/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
Haddin raises one issue on appeal, which we restate as follows: whether the trial court erred by admitting into evidence Haddins chemical breath test results. * * *

Haddin asserts that Officer Hancock deviated from the proper procedure when he left the room where Haddin was located and did not continuously observe him during the twenty-minute waiting period. * * *

Here, although the record indicates that Officer Hancock did not continuously observe Haddin during the twenty-minute waiting period, we have previously held that the procedure for administering breath tests does not require twenty minutes of continuous observation. Furthermore, the record indicates that Officer Hancock followed the rules adopted by the Department of Toxicology. * * * Therefore, we conclude that the trial court properly admitted Haddins breath test results into evidence. Consequently, we hold that the trial court did not abuse its discretion. [cites omitted] * * *
KIRSCH, C.J., and NAJAM, J., concur.

Paul Wilfong v. The Cessna Corporation (8/3/04 IndCtApp) [Property]
Riley, Judge
[Wilfong] appeals the trial courts Findings of Fact and Conclusions of Law in favor of [The Cessna Corporation], denying Wilfongs Complaint of the existence of a prescriptive easement. We reverse.

[Issue] [W]hether the trial court erred by refusing to grant Wilfong a prescriptive easement because he failed to establish that the use of the property at issue was actual, hostile, open, notorious, continuous, uninterrupted, and adverse for a period of twenty years under a claim of right.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to Indiana Decisions

Law - Too cool for school

This article at Law.com yesterday is headed: "In Praise of Zeal: Once too cool for school, the author has learned to appreciate why it's never too late to become the good student." The lead:

You know who they are. They sit in the front of the class, arms raised so high their shoulders threaten to pop, fingers vibrating with manic energy, always ready with an answer. Unloved, unwanted, and occasionally loathed. The gunners.

Every class has one -- or five. They compete for teacher's attention, and mark time by the bleating of their voices. Their classmates are both fascinated and repelled. In law school, we played a game called "gunner bingo," in which the object was to arrange gunners on a bingo card, then cross them off as each raised his hand. That was the easy part -- the hard part was getting called on by the professor and using the word "bingo" when answering his question. Doing so not only won the admiration of your classmates, but also a substantial pot of money.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to General Law Related

Indiana Decisons - One 7th Circuit Opinion Posted Today

RASHMIKA PATEL v. JOHN D. ASHCROFT (On Petition for Review of an Order of
the Board of Immigration Appeals)

Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Once again we deal with issues arising from the removal (deportation) of an alien in violation of a stay granted by this court. * * *

The government has moved to dismiss Patels petition for review on the ground that a court has no jurisdiction to review an order of removal or deportation after the alien has been removed. And so the statute provides. * * *

We doubt that Congress meant to empower the immigration authorities to thwart judicial review by removing the alien from the United States in conscious contempt of a judicial decree. But there was no willfulness on the part of the government in this caseon the contrary, the violation of the stay was technical and inadvertent, the stay having been issued too late to be communicated to the airline in time to stop the departure. Patel should not be allowed to gain a procedural advantage from the action of her lawyer in dawdling about seeking a stay of the original removal order. Baez v. INS, supra, 41 F.3d at 25; Arreaza-Cruz v. INS, 39 F.3d 909, 911 (9th Cir. 1994). Not only must the motion for a stay of removal be dismissed as moot, therefore, but the petition for review must also be dismissed as outside our jurisdiction.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to Indiana Decisions

Law - NPR reports on Blakely again

This afternoon Talk of the Nation will have a report on Blakely. I understand that Professor Berman of Sentencing Law and Policy Blog will be interviewed. The blurb:

Tuesday, August 3, 2004
A recent Supreme Court decision spread confusion into the process of imposing mandatory sentences. Defendants, judges and attorneys alike aren't sure what to do. As the Supreme Court plans to review the decision, we offer an update on sentencing guidelines.
Listen to the program segment here.

Unfortunately, our Indianapolis public radio station, WFYI, has stopped carrying Talk of the Nation (including Science Friday, my favorite).

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to General Law Related

Indiana Courts - Judge Tinder speaks!

In response to this post this morning by Douglas Berman at Sentencing Law & Policy blog, commenting on U.S. Attorney (for the ND Indiana) Joseph Van Bokkelen's motion to stop sentencing until the U.S. Supreme Court speaks again, Judge John D. Tinder, U.S. District Court, Southern District of Indiana, sent this comment:

Professor Berman:
We do admit that Indiana has a Northern District. However, the Indianapolis 500 (and this weekend's Brickyard 400 and the the Formula 1 race) are all held in the Southern District of this state. Joe's counterpart here, Susan Brooks, has not filed a stay motion, so we are racing along with sentencings, trying to make our way through the wreckage caused by the Blakely fiasco.
Great site! Keep up the good work.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to Indiana Courts

Indiana Courts - Federal prosecutor urges sentencing halt

The U.S. prosecutor for the ND Indiana is urging the federal district court judges for the Northern District of Indiana to stop sentencings until the U.S. Supreme Court has issued a ruling in the U.S. v. Booker appeal it accepted yesterday, according to a story today in the Munster Times. Argument in Booker is scheduled for October 4th of this year; there is no timetable for the Supreme Court's decision. Some quotes from the story:

U.S. Attorney Joseph Van Bokkelen is asking the U.S. District Court judges in Hammond, South Bend and Fort Wayne to halt all scheduled sentencings until the U.S. Supreme Court rules on the fairness of current sentencing guidelines. * * *

Formulated two decades ago, the federal guidelines help judges calculate the length of imprisonment or probation for a particular crime and the convict's prior criminal history. They were implemented to ensure sentencing uniformity, and that those convicted in federal courts across the country receive similar sentences for similar crimes. The guidelines restrict judges from going above or below a specific range of penalties.

U.S. District Court Clerk Stephen R. Ludwig asked northern Indiana defense lawyers whose clients would be affected by a sentencing delay to comment on Van Bokkelen's petition by Aug. 12. Ludwig didn't indicate when a decision would take place.

Van Bokkelen's petition states, "Federal sentencing has reached a crisis." He said there is a "prospect that many thousands of future sentencings handed down in the coming months may be invalidated by courts coming to the wrong conclusion about the implications of Blakely on federal sentencing."

Here are copies of the 67-page Motion to Stay/Memorandum in Support and a 1-page Request for Responses.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to Indiana Courts

Indiana Law - Blakely background piece

Last month a local paper asked me to do a piece on Blakely, explaining why a decision from Washington State was relevant here in Indiana. I wrote a "Blakely 101" anaylsis/background piece, in both 650 and 850 lengths. They haven't used it and by now events (and great articles in national papers looking at Blakely from a variety of angles) have totally dated the effort. I've made it available here.

Posted by Marcia Oddi on Tuesday, August 03, 2004
Posted to Indiana Law

Monday, August 02, 2004

Law - Douglas Berman speaks again!

NPR's All Things Considered this evening had a really excellent interview with Professor Douglas Berman of the Sentencing Law & Policy blog, on Blakely and what happens next. Here is the link.

And if you haven't listened to the Weekend Edition interview from Saturday, check here.

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to General Law Related

Law - Stories today

NY Court Reporter. Not Indiana-related, but interesting is this Newsday story published yesterday. It is about the New York State court system's official court reporter. Some quotes:

The work of many judges have been preserved by the official reports, but [Gary] Spivey said that was not the state Legislature's intention when decreeing that judges' work be collected annually. "It was felt that if judges were required to record their decisions, that would be a way to guard against arbitrary and inconsistent decision-making," Spivey said.

As the court system in the state has evolved, so has the court reporter's job. Spivey, who makes $132,250 a year, has a staff of 32 and the New York Reports is an 18-volume-a-year series. The books currently sell for $19 each.

Two of the volumes contain rulings by the state's highest court, the Court of Appeals, 12 are devoted to the midlevel Appellate Division of state Supreme Court's rulings and the other four are known as the Miscellaneous Reports.

The Miscellaneous Reports contain rulings by all other judges in the state, and it is in those volumes that Spivey exercises his discretion to find and publish rulings of precedential value to the law. Lower-level judges often are the first to confront unique legal questions posed by the constant changes in society.

Spivey, for example, is preparing two rulings from the Town of New Paltz court for publication in Miscellaneous Reports, both rejecting criminal charges brought against New Paltz's mayor and two ministers for performing marriage ceremonies on gay couples.

"I think it's an honor," said Jonathan Katz, one of the New Paltz justices whose words will be preserved in the Miscellaneous Reports. "It's kind of exciting to have a decision published."

Judges themselves can submit rulings for Spivey's consideration. So can lawyers who are involved in significant cases _ and they have an incentive because their names and their firms' names are included in the material Spivey publishes.

Indiana non-compete clauses. The Fort Wayne Journal Gazette had an interesting story yesterday on non-compete agreements. A quote:
Although there are fewer restrictions on non-competes in Indiana, that doesnt mean a Hoosier company can enact any non-compete it wants and have it upheld in court.

If there is a protectable, legitimate business reason from the employer in preventing people from going to competitors and the document is properly limited in scope, geographic area and time and description, it has a better chance of being upheld, said Tuck Hopkins, an attorney at the Fort Wayne law firm Barnes & Thornburg.

He said that in the past five years, the number of non-competes has remained constant, but that when presented in court, judges are taking a closer look at the details of each individual clause, with any clause thought to be too wide-ranging likely to lose a legal battle.

Warrick County Superior Court. The Evansville CourierPress has a story today titled "Judge asks for a review of his court." Some quotes:
Warrick County Superior Court Judge Keith Meier is hoping the National Institute of Corrections will help him find a way to answer a question that has been nagging him since he was elected in 2001. How can counties such as Warrick keep their communities safe while also alleviating the burden on the overtaxed state prison system?

At the heart of the issue, Meier said, is a growing class of drug and alcohol offenders who may not need to be incarcerated in traditional prisons but whose crimes still must be addressed seriously. "I'm looking for choices between saying 'OK, you go to prison' and on the other hand slapping their hand and saying 'you go home,'" Meier said. * * *

"You don't typically correct an anti-social person's behavior by putting them in with a bunch of anti-social people. The challenge now is to be able to discern who is who," he said. "Those people you can help you need to try to help them. Otherwise they will keep coming back."

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to General Law Related

Environment - Stories today

Confined feeding. The Cleveland Plain Dealer had a very long story Sunday headlined: "Big farms, big problems? Manure from large-scale dairies creates environmental issues." Access it here. Some quotes:

Many of northwest Ohio's mega-dairies play roles in the potential threat to the water supply. An unannounced inspection of 10 dairies in March found extensive problems at nearly all of them, said Arnie Lieder, enforcement officer for the U.S. Environmental Protection Agency Region 5, which includes Ohio, Michigan, Illinois, Indiana, Minnesota and Wisconsin. No violation notices have been issued to the problem farms.

Lieder cites a "slew of maintenance problems" with the manure storage pits as well as "failure to contain contaminated runoff and unauthorized discharges, particularly from feed storage as well as manure storage."

He said most of the dairies began operation with inadequate manure storage capacity, forcing them to avoid overflow by spreading manure on fields when the ground was frozen or snow- covered. Under these conditions, the Ohio Department of Agriculture discourages, but does not ban, manure spreading. Many other states prohibit winter manure applications.

Tire recycling. "A fifth of Indiana's tire recyclers illegally accumulate waste tires" is the headline to this story in the Muncie StarPress.

Toxic Waste. The Evansville CourierPress had an eidtorial yesterday expressing concern about what is described as IDEM's confidence that "toxic waste from Alcoa's Warrick County operation, dumped years ago at the former Squaw Creek Mine near Boonville, poses no problem today."

Stormwater. The Porter County jail in Valparaiso has received money to do a demonstration project on how to manage rain run-off in an environmentally friendly manner, according to this story published Sunday in the Munster Times.

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to Environmental Issues

Law - Michigan ruling rejecting use of eminent domain for private development

Here is the 7/30/04 Michigan Supreme Court decision reversing Poletown: County of Wayne v. Hathcock. Access this weekend's Indiana Law Blog entry here.

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to General Law Related

Indiana Decisions - One Court of Appeals Opinion Posted Today

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

Mark S. Murfitt appeals from the trial courts denial of his pro se Motion for Pretrial Credit for Time Served and presents the following dispositive issue for review: whether the trial court abused its discretion when it denied Murfitts motion requesting credit time for 270 days during which he was released on bond. We affirm. * * *

[W]e agree with the State that on its face his claim lacks merit. No statute or case establishes that a defendant who is released on bond is confined awaiting trial for purposes of Indiana Code Section 35-50-6-3(a)(1). To the contrary, in Molden v. State, 750 N.E.2d 448, 451 (Ind. Ct. App. 2001), this court determined that a trial court did not abuse its discretion when it denied credit time under Indiana Code Section 35-50-6-3 to a defendant who was confined in home detention while awaiting trial. * * * A defendant, like Murfitt, who was released on bond for some period of time prior to sentencing has substantially lesser restrictions upon his personal liberty than a defendant confined to home detention. See footnote Murfitts claim that he is entitled to pre-trial credit time under Indiana Code Section 35-50-6-3 is not well taken. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to Indiana Decisions

Law - Blakely Updates

The 7th Circuit today has issued another opinion following its decision in U.S. v. Booker, interpreting Blakely v. Washington. The new decision, U.S. v. Ohlinger, is in the entry directly below.

Meanwhile, earlier today the Supreme Court granted cert. in Booker. Oral argument is set for October 4th. See Sentencing Law & Policy for more information.

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to General Law Related

Indiana Decisions - 7th Circuit Issues Two Rulings

USA v. Ohlinger, John D. (WD Wis.)

Before FLAUM, Chief Judge, and MANION and KANNE, Circuit Judges.
FLAUM, Chief Judge. In 2003, John Ohlinger pled guilty to one count of transporting a visual depiction of a minor engaged in sexually explicit conduct. Ohlinger was subsequently sentenced to 360 months imprisonment and he now appeals this sentence. For the reasons stated herein, we remand the case for resentencing. * * *

In March 2003, Ohlinger pled guilty to one count of transporting a visual depiction of a minor engaged in sexually explicit conduct. In exchange, the government then dropped its second charge against Ohlinger, which was for knowing possession of more than two depictions of a minor engaged in sexually explicit conduct. This count was based upon a search of Ohlingers residence that the government contends uncovered more than 1,131 images of child pornography. According to Ohlingers plea agreement, all of his relevant conduct could be used to determine his sentence. Due to the district judges finding that Ohlingers conduct was the most egregious, perhaps more so than any similar case the judge had seen, Ohlinger was sentenced to 360 months imprisonment. Ohlinger now appeals his sentence. * * *

As this Court recently determined in United States v. Booker, the Supreme Courts decision in Blakely v. Washington calls into doubt the constitutionality of 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 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. In this case, the district judge made several factual findings and used these findings to support sentence enhancements for distributing pornographic images with the expectation of receiving other images and engaging in a pattern of activity involving the sexual abuse of minors. We therefore must remand Ohlingers case to the district judge for resentencing in light of Booker. [Cites omitted]

Cook, Ronald L. v. Commonwealth Edison (ND Ill.)
Before FLAUM, Chief Judge, and BAUER and MANION, Circuit Judges.
MANION, Circuit Judge. The appellants, current or retired employees of Commonwealth Edison Company (ComEd), appeal from a decision of the District Court for the Northern District of Illinois to deny their motion for leave to file a second amended complaint. Also at issue, however, is the jurisdiction of that court to consider the motion. For the reasons set forth below, we conclude that the district court had jurisdiction to consider the motion, but that under the unique circumstances of this case, it was an abuse of discretion to deny the appellants leave to file a second amended complaint. * * * Reversed.

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to Indiana Decisions

Recap of Weekend Postings

There were a number of interesting posts this weekend on the Indiana Law Blog, including:

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

Environment - Wetlands: Rapanos litigation continues

Law - Michigan Supreme Court Strikes Down 1981 Poletown Decision

Indiana Decisions - More on the 7th Circuit's En Banc Ruling Yesterday in Lafayette Parks Ban

Indiana Courts - U.S. Steel sues citizen group

In addition, How Appealing posted its latest "20 Questions," this month featuring Circuit Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit. Access it here.

Also of particular interest is the Dec. 1, 2003 "20 Questions" featuring Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit. Access it here.

Posted by Marcia Oddi on Monday, August 02, 2004
Posted to About the Indiana Law Blog