The Indiana Law Blog: August 2004 Archives

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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 Merlington�s sentence to 30 years. * * *

Conclusion. We affirm Merlington�s 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 Indiana�s 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 Indiana�s 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 jury�s finding is not the final legal event but merely a prelude to the judicial finding contained in the court�s sentencing order.

Under Indiana�s statute as it read at the time of McManus�s 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 Indiana�s 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 Mark�s RV because genuine issues of material fact exist concerning whether Mark�s RV breached express and implied warranties and violated Indiana�s Deceptive Consumer Sales Act. * * *

This evidence creates a genuine issue of material fact regarding whether Mark�s 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 Mark�s RV knew or should have known that the representations made in the Brochure were false.

For the foregoing reasons, we affirm the trial court�s grant of summary judgment to Mark�s RV on the Perrys� breach of express and implied warranty claims. However, we reverse the trial court�s grant of summary judgment to Gulf Stream on the issue of whether the Limited Warranty fails of its essential purpose and the trial court�s grant of summary judgment to Mark�s RV on the question of whether Mark�s 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 city�s 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 city�s 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 city�s 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 attorney�s fees.

In its second appeal, Daimler argues that the amount of trial attorney�s 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 Franklin�s claims. The jury decided in Franklin�s 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 attorney�s fees, which the trial court granted in the amount of $19,405 after submission of Franklin�s petition documenting his attorneys� time. Daimler now appeals from the denial of its motion to dismiss and compel arbitration and the award of attorney�s fees. * * *

Here, Daimler, like Hyundai, is not in privity with the consumer, Franklin, and therefore cannot enjoy the benefit of the terms of Franklin�s 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 Daimler�s motion to dismiss and compel arbitration.

Franklin argues that he should recover appellate attorney�s fees for defending his IMVPA [Motor Vehicle Protection Act ] judgment on appeal. Generally, the right to recover attorney�s fees from one�s opponent does not exist in the absence of a statute or some agreement. State Bd. of Tax Comm�rs 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 attorney�s 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 court�s award of attorney�s 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 attorney�s fees were charged for clerical, non-legal services. Franklin�s 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 Franklin�s case. Daimler points to numerous time entries by the paralegal for copying and mailing documents. While Daimler concedes that a paralegal�s time may be included in the award of attorney�s fees, it argues that inclusion is only appropriate when the paralegal is performing legal services that involve professional legal skills. * * *

In this case, the paralegal�s 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 court�s decision denying Daimler�s motion to compel arbitration, and affirm the trial court�s decision to award trial attorney�s fees. However, we reverse the trial court�s inclusion of paralegal�s fees for clerical work and remand for a redetermination of the amount of trial attorney�s fees and for a determination of the proper amount of appellate attorney�s 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 State�s 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 Indiana�s 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 court�s 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 Easley�s 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 Kirmsee�s 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 Easley�s 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 judge�s 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 attorney�s 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. P�ship, 507 U.S. 380, 396 (1993); see also Tango Music, 348 F.3d at 247 (�If the lawyer�s 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 Sheriff�s 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 parties�those who lacked actual knowledge of both the risk Smith posed to Whiting generally, and the no-contact order specifically. Concomitantly, Whiting�s 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 Wisconsin�s counterpart to 18 U.S.C. � 402 (because, as Smith�s attorney, Voss was also bound by the court�s no-contact order, see, e.g., Fed. R. Civ. P. 65(d)), or if any complaint at all had been lodged against this�attorney.

Whiting�s claims against the Sheriff�s Department are also doomed. In short, the Marathon County Sheriff�s 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.

Another:

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 couldn�t enter one�s 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 court�s 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 Foster�s 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 court�s revocation of Foster�s 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. Webb�s 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 Patient�s Compensation Fund (�the Fund�), she is collaterally estopped from collecting additional damages from him. We agree. However, we affirm the trial court�s denial of Dr. Webb�s summary judgment motion because Toney has not been permitted the opportunity to establish Dr. Webb�s liability and, therefore, collateral estoppel does not preclude her from pursuing her claim against him for medical malpractice�albeit knowing that she cannot recover damages from him�if 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 court�s 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 Rodriguez�s 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 Rodriguez�s co-defendants. According to the prosecutor, Brent�s 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 Chicago�s 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."

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 State�s Attorney Terry Kaid today filed a lawsuit against a nearby Indiana coal-fired power plant based on several releases of dangerous emissions. * * *

Madigan and Kaid�s 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 Kaid�s 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 Kaid�s 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 court�s 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 West�s motion to quash based solely upon its in camera review of the evaluation letter. * * *

The vital resource of the trial court�s 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 court�s time required is minimal and well spent.

For the foregoing reasons, we reverse the trial court�s grant of Great West�s 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 court�s 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 bank�s 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 court�s denial of Carter�s 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 Payne�s chambers where I had access to among other things the parenting assessment that was done by the Children�s 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 Hulfachor�s attorney helped the trial court obtain this information. Hulfachor�s 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 Hulfacher�s 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.
REVERSED IN PART, REVERSED AND REMANDED IN PART.

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 Worker�s Compensation Act.

On February 1, 1994, while responding to a fire alarm at the NBD building, members of the Gary Fire Department found Larry Bertoch�s 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 Bertoch�s death resulted from his response to the fire, Bertoch�s widow filed an Application for Adjustment of Claim with the Worker�s Compensation Board. A Single Member of the Worker�s Compensation Board heard the claim and awarded Bertoch full death benefits, finding that the death occurred as a result of Bertoch�s 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 Bertoch�s 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 Bertoch�s 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 Worker�s 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 Board�s findings. Bertoch�s doctor�s statement that stress, such as a fire, could be fatal was supplemented by the coroner�s report and the death certificate both attributing the death to Bertoch�s 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 Board�s finding in this case that Bertoch�s death did not arise out of and in the course of his employment is not supported by substantial evidence. Bertoch�s 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 Worker�s Compensation Act covers this injury. * * *

I. Injuries �in the Course of� Employment. * * * Here, there is no doubt that March�s 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 worker�s compensation statute. * * * March acted in response to the actions of the strikers, and the Board�s 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 worker�s 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 person�s 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 Worker�s Compensation Board found that March�s 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 Worker�s 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 Worker�s 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 Knoy�s 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 Cary�s exclusive remedy was under the Worker�s 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 worker�s compensation, injuries sustained during after-hours work activities were generally not compensable. * * *

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

As Gemtron�s efforts to publicize the cleanup demonstrate, an employer�s public image is a significant business consideration. Gemtron�s 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 Gemtron�s by adding to the cost. However, the effect of finding worker�s compensation to cover such an activity is sometimes to the employer�s benefit by denying a tort recovery and sometimes to its detriment by awarding worker�s compensation benefits. The worker�s 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 Kelly�s convictions for felony murder, criminal confinement, criminal gang activity, and assisting a criminal? Did the trial court err in refusing Kelly�s 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 charge�shared by all participants in this change-of-plea hearing�is 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. Bradley�s 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 ALJ�s 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 ALJ�s 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 Barnett�s 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 Barnett�s 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 claimant�s impairment equals a listing is a medical judgment, and an ALJ must consider an expert�s 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 court�s 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 physician�s 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 Indiana Law Blog

Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).

Tuesday, August 31, 2004

Indiana Decisions - Four from Supreme Court today

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

Indiana Decisions - 7th Circuit Issues three today

Monday, August 30, 2004

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

Law - More on Kentucky upholds life-support law

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

Indiana Decisoins - One Court of Appeals Decision Posted Today

Law - Sandra Day O'Connor bobblehead doll

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

Indiana Decisions - Two posted by 7th Circuit

Environment/Economic Development - Agriculture in the Gubernatorial Campaign

Sunday, August 29, 2004

Law - News about Judge Posner

Environment - In depth look at Gibson Power Plant Problems

Saturday, August 28, 2004

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

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

Friday, August 27, 2004

Indiana Decisions - Three today from Court of Appeals

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

Indiana Decisions - 7th Circuit Issues Five Today

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

Law - Kentucky upholds life-support law

Indiana Decisions - 7th Circuit issues correction

Indiana Law - School bars girl managers on boys' team

Law - Grandparent visitation in California

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

Law - More on judicial plagarism

Environment - Disclosing contingent liabilities under Sarbanes-Oxley

Thursday, August 26, 2004

Environment - Gibson Generating Plant Multi-Jurisdictional Issues

Indiana Decisions - Two from Supreme Court today

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

Indiana Decisions - One today from 7th Circuit

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

Wednesday, August 25, 2004

Indiana Decisions - Three from Supreme Court Today

Indiana Decsions - One from Court of Appeals Today

Indiana Decisions - 7th Circuit issues five decisions today