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Thursday, September 30, 2004

Law - Two interesting and surprising reports today

"Starr Emerges as Key Lawyer for N.Y. Times" That was the report today in The New York Sun. It begins:

As the New York Times gears up for what it argues is a First Amendment fight to stop federal prosecutors from learning the identities of two reporters' confidential sources, the paper is enlisting a surprising ally.

The Times, which is suing Attorney General Ashcroft in federal court in Manhattan, has retained Kenneth Starr, the former special prosecutor who, in years past, was a darling of the right and felt the sting of the paper's editorials.

Mr. Starr is teamed up with the New York lawyer Floyd Abrams, a veteran First Amendment lawyer, to block a federal prosecutor at Chicago from obtaining phone records of reporters Philip Shenon and Judith Miller. The two reporters covered national-security issues following the September 11 terrorist attacks.

(Thanks to How Appealing for the link).

The other is this report from Duke University News, quoting law professor Erwin Chemerinsky as urging that "U.S. Supreme Court Justice Stephen Breyer should recuse himself from ruling on two cases that will decide the constitutionality of federal sentencing guidelines." More quotes:

"There's no doubt that Stephen Breyer is one of the 'parents' of the federal sentencing guidelines," said Chemerinsky, Alston & Bird Professor of Law at the Duke University School of Law and a noted constitutional scholar and Supreme Court advocate. "When he was the Chief Counsel to the Senate Judiciary Committee, he played a key role with regard to the Sentencing Reform Act [passed in 1984], which created the Sentencing Commission that created the guidelines. Justice Breyer was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge. Should a justice who played such a key role in developing the sentencing guidelines now participate in considering their constitutionality?

"My own opinion is that he should recuse himself," said Chemerinksy, who has two cases currently on the Court's docket, as counsel and co-counsel. "I don't think a member of Congress who participated in sponsoring a bill or drafting legislation should then, on the federal court, rule on the constitutionality of that, and I think Justice Breyer is in the same position." * * *

"If there's any group in our profession or in society that we want to have impeccable ethics -- to follow ethical principles without question -- it's judges. That's most important for the Justices of the Supreme Court -- they are the most visible judges we have in the country. They are the model for all other judges."

Thanks to Sentencing Law & Policy Blog for the link.)

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to General Law Related

Environment - More on Governor Kernan's plan

"Kernan announces new electronic service to streamline environmental permitting process" is the headline to this press release issued today from the office of Gov. Kernan.

[Update 10/1/04] Access today's Indianapolis Star story here.

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Environmental Issues

Indiana Courts - Waiver form

The Marion County Prosecutor's Office Waiver of Trial by Jury form is available here. See also this post from Michael Ausbrook's InCourts site for a waiver form from another county.

Michael also has a good review of this week's Baehl v. State, titled "Baehl v. State: First Blakely Reversal--NFP," posted here.

[More] Michael Ausbrook has just posted a link to "a wonderful collection of forms, substantive notes, and 'Questions to Ponder'" about the impact of Blakely v. Washington in Indiana that he received in the mail. The second part of his entry includes a thoughtful discussion about the education of trial court judges and judicial decision-making in Indiana state courts.

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Indiana Courts

Indiana Decisons - Four from Court of Appeals Today

Carl Coffman, et al. v. PSI Energy Inc., et al. (9/30/04 IndCtApp) [Torts]
Baker, Judge

[The Coffmans] appeal the trial courts grant of summary judgment in favor of appellees-defendants PSI Energy, Inc. (PSI), Rumpke of Indiana, LLC (Rumpke), Refuse Handling Services, Inc. (Refuse Handling), and Mountain Tarp, Inc. (Mountain Tarp), with regard to the Coffmans negligence and products liability claims. In this instance, Carl was injured when the tarp system he was using to cover a Rumpke trailer at Refuse Handling came into contact with a 69,000 volt power line that was owned by PSI.

In particular, the Coffmans contend that summary judgment was erroneously granted in favor of the four appellees because there were genuine issues of material fact regarding: (1) PSIs duty and breach of care with respect to their power lines; (2) Rumpkes failure to warn Carl of the characteristics of a dangerous chattelthe trailerthat it had provided for Carls use, along the companys alleged failure to train Carl about the proper use of its equipment; (3) Refuse Handlings alleged breach of duty of care to Carl as a business invitee; and (4) the alleged defective design of Mountain Tarps system, and whether that companys warnings to Carl were inadequate. The Coffmans further maintain that the trial court erroneously determined as a matter of law that their recovery is barred under Indianas comparative fault scheme as to PSI, Rumpke and Refuse Handling. Concluding that summary judgment was properly entered for all of the appellees, we affirm the judgment of the trial court.

Joseph Mroz v. Robert Harrison (9/30/04 IndCtApp) [Evidence; Procedure]
Bailey, Judge
Mroz raises four issues, which we consolidate and restate as: [1] Whether the trial court abused its discretion when it refused to allow Mroz to refresh Harrisons recollection of an alleged fall, pursuant to Indiana Evidence Rule 612; [2] Whether the trial court abused its discretion by permitting a doctors deposition to be read into evidence based upon exceptional circumstances, pursuant to Indiana Trial Rule 32(A)(3)(e), in the absence of prior notice and application; and [3] Whether the trial court abused its discretion by failing to instruct the jury on the issues of comparative fault and mitigation of damages. * * *

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

Floyd Johnson v. Hoosier Enterprises III, Inc. (9/30/04 IndCtApp) [Estates]
Floyd Johnson, individually, and in his capacity as Personal Representative of the Estate of Mabel Lucille Johnson (collectively "Johnson"), appeals from the trial court's order granting summary judgment to Hoosier Enterprises III, Inc., f/k/a Hoosier Health Systems, Inc. ("Hoosier"). We reverse. * * *

Here, Johnson presented evidence that Hoosier failed in its duty to disclose its identity to the public, thereby concealing its identity from anyone "entitled to bring" an action. See I.C. 34-11-5-1. "The policy in our state is to freely allow amendments in order to bring all matters at issue before the trial court." Stephens, 730 N.E.2d at 1281 ("trial court properly allowed Plaintiffs leave to amend their complaints and add Stephens as a defendant, despite the running of the statute of limitations."). Thus, genuine issues of material fact prevent the granting of summary judgment to Hoosier.

The trial court's determination granting summary judgment to Hoosier is reversed and the cause is remanded for further proceedings consistent with this decision.
BAKER, J., and FRIEDLANDER, J., concur.

Lee Whitt v. Farmer's Mutual Relief Association (9/30/04 IndCtApp) [Real Estate; Procedure; Insurance]
Sharpnack, Judge
Lee Whitt appeals the trial courts denial of his motion to set aside a default judgment granted to Farmers Mutual Relief Association (Farmers Mutual). Whitt raises one issue, which we restate as whether the trial court abused its discretion by denying Whitts motion to set aside the default judgment where Farmers Mutual had transferred title of the property to a third party after the judgment was entered and where the motion was filed almost one year after the judgment. We affirm. * * *

We conclude that Whitt did not file his motion to set aside the default judgment within a reasonable time. A judgment that divests a defendant of title to property is especially time sensitive. As the trial court noted, Farmers Mutual has transferred the property in reliance upon the judgment, and the new property owners have demolished the building. Thus, Farmers Mutual would be severely prejudiced if the default judgment was set aside. Moreover, as evidenced by his letters to the trial court, Whitt was aware of the complaint. Further, Whitt does not argue that he was unaware of the default judgment and has not offered a basis for his delay in moving to set aside the default judgment. See id. While we cannot say exactly what a reasonable time would have been in this case, Whitts delay of almost one year was unreasonable. Consequently, the trial court did not abuse its discretion by denying Whitts motion to set aside the default judgment.

For the foregoing reasons, we affirm the trial courts denial of Whitts motion to set aside the default judgment. Affirmed.
BAILEY, J. and MAY, J. concur

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts two

Gildon, Jermaine v. Bowen, Edwin (ND Ill.)

Before BAUER, POSNER, and COFFEY, Circuit Judges.
BAUER, Circuit Judge. Petitioner-Appellant, Jermaine Gildon, brought this habeas corpus claim under 28 U.S.C. 2254 challenging his Illinois state conviction for first degree murder. The district court dismissed the petition as being untimely under the one-year period of limitations pursuant to 28 U.S.C. 2244(d). Gildon appeals. * * *

Because we find that the district court did not err in dismissing Gildons habeas petition as untimely under 28 U.S.C. 2244(d), we do not address the merits of his claim. The decision of the district court is AFFIRMED.

Boyd, Moses v. IL State Police Dept (ND Ill.)
Before FLAUM, Chief Judge, and POSNER and WOOD, Circuit Judges.
WOOD, Circuit Judge. Plaintiffs are 18 of 51 forensic scientists (to whom we refer as the Scientists) who worked for the Chicago Police Department (CPD) crime lab until July 1996, when they were transferred en masse to the Illinois State Police (ISP). Unhappy with their salaries after the transfer, the Scientists brought suit under Title VII alleging that ISP intentionally discriminated against them in the way that it structured the salary terms for the newly absorbed group, a majority of which were members of racial or ethnic minorities. A jury found against the Scientists shortly after receiving clarifying instructions from the district court. The Scientists then filed a Rule 59 motion for a new trial, which the district court denied.

On appeal, they challenge the jury instructions given by the district court as well as two other rulings. * * *

[p. 22] So: defendant wins 1; plaintiff wins 2 and 4, and 3 goes to the jury with an instruction placing the burden of proving an absence of a causal relation on the defendant.

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Indiana Decisions

Indiana Law - Charitable Trusts

To supplement our entry yesterday on the St. Mary's Chapel (Evansville) demolition ("Finding of Charitable Trust Prevents Demolition"), check out this entry by E. Thomas Kemp in Kemplog, referencing both the St. Mary's Chapel dispute, and Earlham College's efforts to maintain control over Conner Prairie, also involving the concept of a charitable trust.

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Indiana Law

Indiana Decisions - More on Court of Appeals Blakely ruling

Yesterday afternoon we noted that the Court of Appeals had issued, as a Not for Publication opinion, the first Indiana appellate court decision applying Blakely v. Washington. We posted the scanned version. After some effort, we have extracted the text and can now present the ILB summary:

Baehl v. State (9/29/04 IndCtApp) [Criminal Law & Procedure - Not for Publication]
Sharpnack, Judge

Larry W. Baehl appeals his sentence for sexual misonduct with a minor as a class D felony. [Issue] [W]hether the trial court abused its discretion in sentencing [Baehl]. We reverse and remand for resentencing. * * *

The sole issue is whether the trial court abused its discretion in sentencing Baehl. Baehl argues that the aggravating factors used by the trial court were improper and that he should have been sentenced to no more than the presumptive sentence. Neither Baehl nor the State argue that the enhanced sentence violates the United States Supreme Court's opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), reh'g denied. Although we would not normally raise this issue sua sponte, we do so here because of the short duration of Baehl's sentence and the unusual circumstances of this case.[ft4]

In Blakely, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466,490, 120 S. Ct. 2348 (2000)). The Court defined the "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 2537 (emphasis in original). "In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional fmdings." Id. (emphasis in original). Thus, in Blakely, the Court held that the defendant's sentence violated his Sixth Amendment's right to trial by jury because the trial court enhanced the sentence above the "statutory maximum" based upon the defendant's "deliberate cruelty," a fact that was not reflected in a jury verdict or admitted by the defendant. Id. at 2537-2538.

Our supreme court has not yet examined the viability of Indiana's sentencing scheme in light of Blakely. Indiana's current sentencing scheme allows a trial court to use aggravating circumstances to enhance a presumptive sentence if it: (1) identifies all significant mitigating and aggravating circumstances; (2) states the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulates the court's evaluation and balancing of the circumstances. Crawford v. State, 770 N.E.2d 775,782 (Ind. 2002). The trial court enhanced Baehl's sentence beyond the one and one-half year presumptive sentence based upon two aggravating factors that were not reflected in the jury's verdict and were not admitted by Baehl. The enhancement of Baehl's sentence beyond the presumptive sentence for a class D felony violates the Supreme Court's holding in Blakely, 124 S. Ct. 2537-2538. Consequently, we reverse Baehl's sentence and remand for resentencing consistent with Blakley and Apprendi.

For the foregoing reasons, we reverse Baehl's sentence and remand for resentencing. Reversed and remanded.
BAILEY, J. and MAY, J. concur
[4] The United States Supreme Court recently noted that when one of its decisions "results in a 'new rule,' that rule applies to all criminal cases still pending on direct review." Schriro v. Summerlin, 124 S. Ct. 2519 (2004) (quoting Griffith v. Kentuckv, 479 U.S. 314,328, 107 S. Ct. 708 (1987)) (holding that Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2000), which applied Apprendi v. New Jersey, 530 U.S. 466,490, 120 S. Ct. 2348 (2000), to a death sentence imposed under Arizona's sentencing scheme, "announced a new procedural rule that does not apply retroactively to cases already final on direct review"). Baehl's appeal was pending on direct review at the time that the Supreme Court issued Blakely. Consequently, Blakely is applicable here.

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Indiana Decisions

Environment - Stories today

"Another dairy CAFO, another fight" is the headline to this lengthy story today in the Muncie StarPress. Some quotes:

HARTFORD CITY - Citizens are starting a campaign to stop a Netherlands couple from building a 2,000-head dairy CAFO (concentrated animal feeding operation) two miles northeast of the city. Gerwin and Marinke Oolman intend to apply within two weeks for a permit from the Indiana Department of Environmental Management to construct and operate the dairy, according to one of their consultants.

It would be the 13th dairy brought to Indiana by Vreba-Hoff Dairy Development, a Wauseon, Ohio-based firm that helps Dutch and other European dairy farmers re-locate to Indiana, Michigan and Ohio.

"Concentrated Animal Feeding Operations ... are more akin to industry than they are farms," legal assistant Elizabeth Thomas told the Blackford County Commissioners at a meeting last week. "That is the reason why they are frequently known as factory farms. Just as industry is subject to local zoning regulations, I believe factory farms should be also."

Commissioners are considering a request from Thomas and other CAFO opponents to adopt an ordinance that would give the Board of Zoning Appeals authority over the siting of CAFOs.

The proposed Oolman Dairy would be Vreba-Hoff's fourth dairy project in East Central Indiana.

"Evanston Hospital speeds incinerator's end is the headline to this story today in the Chicago Tribune Some quotes:
With a nudge from Gov. Rod Blagojevich, Evanston Hospital is a step closer to shutting down its controversial medical-waste incinerator by next month. * * *

Blagojevich helped speed up the project by ordering the Illinois Environmental Protection Agency to grant the hospital a permit quickly to shut down the incinerator. He is threatening to force the state's 10 other hospital garbage burners to close if they fail to do so voluntarily.

"Evanston Hospital is the first to step up and do the right thing and is setting a good example for the other hospitals that will follow," Blagojevich said in a statement.

Concerns about dioxin--a cancer-causing pollutant created when chlorinated plastics are burned--led the U.S. EPA in the late 1990s to require a dramatic reduction in air pollution from incinerators. Most hospitals closed their trash burners and hired contractors to recycle the waste or put it in landfills.

Fewer than 100 medical-waste incinerators remain nationwide, down from 5,000 in the mid-1990s. Only Florida has more still operating than Illinois.

"EPA cites Indiana plant for violations" is the headline to this AP story that reports:
WASHINGTON -- An Indiana public utility was told today by the Environmental Protection Agency that it has violated air pollution laws at four coal-fired power plants.

Northern Indiana Public Service Co. received a notice from the EPA saying it had improved those plants between 1985 and 1995 without the proper permits and additional pollution controls.

The EPA plans to refer the case to the Justice Department for prosecution. EPA Administrator Mike Leavitt cast it as a sign the Bush administration is tough on polluters.

"They are for increases in pollution that occurred in the '90s," Leavitt said in a telephone interview from Cincinnati. "This is the fourth such enforcement action I've authorized in just under 300 days."

"Easements popular for preservation: Oldham County farm donated for protection" is the headline to this interesting story about conservation easements today in the Louisville C-J. Some quotes:
With a herd of bison grazing in a field behind him, Steve Wilson announced yesterday that his family is creating a conservation easement to preserve 244 acres of fertile Oldham County farmland. It's the first step toward protecting the entire 1,000-acre Woodland Farm from development, Wilson said, which would make it one of the largest conservation easements in Kentucky.

"Subdivisions are eating up the countryside now," said Wilson, who estimated that the entire farm would be worth millions of dollars if it were developed. The easement announcement came as the National Trust for Historic Preservation opened its annual meeting yesterday in Louisville. * * *

At least 19 states have easement programs operated by state government, according to the American Farmland Trust, a nonprofit organization. Those programs have protected 1.2million acres, with Pennsylvania protecting 275,594. Pennsylvania is considered a leader in easements because the state dedicates a portion of its cigarette and tobacco taxes to farmland protection, said Jennifer Dempsey of the farmland trust.

The story includes a national map showing the 19 states. Indiana is not among them, but surrounding states Michigan, Ohio and Kentucky are. A sidebar to the story provides more information about conservation easements:
They are legal agreements between a landowner and a land trust or government agency that permanently limit the use of the land in order to protect it.

They can allow development of parts of property or totally prohibit it.

Land can be passed to heirs or sold, but an easement is binding on all future owners.

Its value becomes a charitable donation for tax purposes that can be spread over five years. The amount depends on such things as owner's annual income and other deductions.

With development restrictions leading to lower land value, heirs likely would pay less in estate taxes.

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Environmental Issues

Indiana Law - More on political yard signs

First it was Noblesville, then it was Lake County, yesterday it was Valparaiso (in Porter County). "Lawsuit suspends time limit on Valparaiso yard signs" was the headline to a story yesterday in the Gary Post-Tribune (probably no longer online) that reported:

The Indiana Civil Liberties Union has filed suit against Valparaiso for its time limits on political yard signs. The citys attorney, Dave Hollenbeck, said the city will suspend its 30-day rule for the remainder of the election year and negotiate with the ICLU. That means a Valparaiso woman who defied the citys rule on political signs wont be fined and can leave her sign up.

The legal complaint for relief was filed in U.S. District Court in Hammond on Monday, said Ken Falk, executive director of the ICLU. * * *

Hollenbeck defended the overall yard sign law, which he said was the result of bipartisan work. But he conceded U.S. Supreme Court decisions may play a role in revisiting the ordinance when the city talks with the ICLU. Hollenbeck noted the complaint narrowly focused on the 30-day limit, and not the overall yard sign law.

The decision will not affect the restrictions upon the size or number of yard signs the law permits.

Falk said he was happy the city would not pursue enforcement, but said Collins-Novak and the ICLU were seeking a permanent injunction that is, asking the federal court to strike down the 30-day rule permanently.

Last week, after Lake County decided not to enforce its 60-day and 45-day rules on various political signs, Falk told the Post-Tribune that the ICLU opposed any time-frame restrictions on political signs. Porter County has a 60-day rule.

The Valparaiso complaint is just one of many ACLU battles against yard sign laws this year. Earlier this month, Noblesville agreed to suspend their restrictions only 24 hours after the ICLU threatened to sue.

Here is another story, which notes:
Meanwhile, Marion County's political sign ordinance remains in effect but unenforced, and a city attorney said it likely would not be until constitutional issues are resolved.

Posted by Marcia Oddi on Thursday, September 30, 2004
Posted to Indiana Law

Wednesday, September 29, 2004

Indiana Decisions - [Updated] First Indiana state court decision applying Blakely?

I'm told the Court of Appeals today (the panel was Sharpnack, Bailey, and May) issued an opinion that stated:

The trial court enhanced Baehl's sentence beyond the one and one-half year presumptive sentence based upon two aggravating factors that were not reflected in the jury's verdict and were not admitted by Baehl. The enhancement of Baehl's sentence beyond the presumptive sentence for a Class D felony violates the Supreme Court's holding in Blakely[.] Consequently, we reverse Baehl's sentence and remand for resentencing consistent with Blakely and Apprendi.
The decision was Baehl v. State, 87D01-0112-CF-109 (29 September 2004), and incredibly, according to my source, is listed as Not for Publication.

[Update] I'm pleased to report that Michael Ausbrook of the INCourts blog has sent me a scanned copy of Baehl v. State. Access it here. However, I'd really like to be able to quote from the opinion, so will try to resolve that tomorrow.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Indiana Decisions

Indiana Decisions - Finding of Charitable Trust Prevents Demolition

"Judge Rules Against St. Mary's on Chapel Demolition" is the headline to a story today on the site of 14WFIE, out of Evansville. The report:

A ruling in Vanderburgh Superior Court Tuesday puts a stop to the demolition of the chapel on the grounds of St. Mary's Medical Center in Evansville. St. Mary's plans to appeal the decision.

The ruling, from Judge Scott Bowers, states the donation of the chapel some fifty years ago is a charitable trust. And in the court's eye, that means St Mary's can't make any changes, investments or expenditures, without consulting the donor's family or heirs. Family attorney Charles Berger says, "What the judge did find was that the action of creating a permanent memorial was a bequest that creates a charitable trust. And the church is a charitable trust in the eyes of the law. The hospital violated the law in tearing down, beginning the destruction of the chapel without court permission."

So, the judge rules St Mary's is permanently enjoined from destroying the chapel, and must now refurbish and restore it to its original condition, and at St Mary's cost. St Mary's has already dismantled the interior of the chapel and removed the stained glass windows.

St. Mary's wanted to tear down the chapel to make way for a new heart institute.

St. Mary's states: "Our attorneys are preparing to immediately appeal this ruling to the Indiana Court of Appeals as we are in disagreement with these findings."

A much more detailed video link to the story is available online.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Indiana Decisions

Indiana Decisions - More on protective orders

Richmond attorney E. Thomas Kemp has posted his take on today's Court of Appeals decision in Tons v. Bley (scroll down two entries - it is the second case). Access it here.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Indiana Decisions

Law - Recommended resources for following the new Supreme Court term

Tony Mauro of Legal Times has a good preview of the coming term here. The headline is "Sentencing Tops High Court's New Term: Justices also to tackle disputes over beef ads, wine, marijuana." Some quotes:

The Supreme Court returns to the bench on Oct. 4 [the first Monday in October] and almost immediately will set about cleaning up the chaos it created in the federal sentencing system in June before it left for its summer recess.

In a rare two-hour afternoon session on Monday, the Court will hear arguments in United States v. Booker and United States v. Fanfan, hastily added to its docket in the aftermath of its June 24 decision in Blakely v. Washington, which struck down a sentencing system similar to the federal one.

Professor Douglas Berman, prolific author of the essential blog, Sentencing Law & Policy, has produced a very useful page titled "Resources on Blakely v. Washington."

Particularly valuable while the Court is in session is Goldstein & Howe's SCOTUSblog. Earlier this year Lyle Denniston, an long-time Supreme Court journalist, began writing for them - his pieces often give a different slant to what is happening.

Two sites I access often are Findlaw's Supreme Court Center and On the Docket, a site for journalists produced by Northwestern's Medill School of Journalism.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to General Law Related

Indiana Decisions - Two today from Court of Appeals

Cloverleaf Enterprises, Inc. v. Centaur Rosecroft, LLC (9/29/04 IndCtApp) [Civil Procedure]
Bailey, Judge

Case Summary. [Cloverleaf] appeals the trial courts grant of an anti-suit injunction, without the issuance of a bond, in favor of [Centaur]. Pursuant to the anti-suit injunction, Cloverleaf is precluded from prosecuting a case that it filed in a Maryland court of law, which involves similar parties and issues to the one at bar. We reverse under principles of judicial restraint and comity.

Issue. Cloverleaf raises four issues, the following one of which we find dispositive: Whether the trial court abused its discretion by granting the anti-suit injunction by, first, prohibiting Cloverleafi.e., a Maryland corporationfrom pursuing an action, which involves Maryland citizens, Maryland law, and the sale of Maryland real estate, in a Maryland court of law and, second, granting the injunction absent a showing: (1) of irreparable harm; (2) that Centaur has a reasonable likelihood of success on the merits; (3) that the threatened injury outweighed the potential harm to Cloverleaf resulting from the granting of an injunction; and (4) that the public interest would not be disserved.

Facts and Procedural History. The specific controversy at issue here concerns the propriety of a trial courts order enjoining parties, over whom it has personal jurisdiction, from pursuing similar litigation in a sister state. * * *

For the foregoing reasons, we reverse the trial courts grant of the anti-suit injunction. Reversed.
SHARPNACK, J., and MAY, J., concur.

Joseph E. Tons v. Barbara C. Bley (9/29/04 IndCtApp) [Family Law]
Ratliff, Senior Judge
Here we are presented with the issue of whether there was sufficient evidence presented to warrant the issuance, pursuant to the Indiana Civil Protection Order Act, of a protective order as to Barbara Bley and Brian Bley and prohibiting Tons from using or possessing any firearms, ammunition, or deadly weapons. * * *

In Garmene v. LeMasters, 743 N.E.2d 782 (Ind. Ct. App. 2001), a case decided under the previous version of the protective order statute, this court held that the petitioner for a protective order must prove by clear and convincing evidence at least one of the allegations of her petition. Indeed, the current statute places the burden of proving the same by a preponderance of the evidence. In Garmene, we reiterated the familiar test for determining the sufficiency of the evidence. We neither weigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and reasonable inferences that support the trial courts judgment. * * *

The protective orders pertaining to Barbara and Brian present a serious problem. There is no evidence that Tons ever threatened Barbara, and she admitted that he did not. Any acts of violence by Tons against Barbara occurred during their marriage that ended in 1996. While the court may not deny the petition solely by reason of the lapse of time between the act of violence and the filing of the petition, Ind. Code 34-26-5-13, we may consider remoteness in determining whether a sufficient threat exists to warrant the issuance of a protective order. We believe that unspecified acts of violence occurring eight years previously are a not sufficient basis for the issuance of a protective order. Therefore, we must reverse the protective order as it pertains to Barbara. Likewise there is absolutely no evidence of any acts of violence, or threats, by Tons toward Brian. The protective order as to Brian is reversed.

That portion of the courts order regarding firearms, ammunition, and deadly weapons raises more concerns. In Garmene, we affirmed the order prohibiting the respondent from possessing firearms, on the grounds that he had pursued the petitioner at home and on her job and had verbally abused her. She testified that he made harassing phone calls, came to her place of employment, and sat outside her home monitoring her movements. She said this activity was very disturbing to her and that she didnt know what else he might do. We held the evidence was clear and convincing that the respondent posed a significant threat to inflict serious bodily injury and was sufficient to support the order prohibiting respondents possession of any firearm. See footnote

Here, there is no evidence that Tons committed any of the types of acts Garmene held sufficient to warrant issuance of the order that the respondent not possess or use any firearms, ammunition, or deadly weapons. Therefore, we reverse that portion of the protective order.

Affirmed in part and reversed in part as set forth above.
DARDEN, J., concurs.
BARNES, J., dissenting with separate opinion:

I respectfully dissent. I believe Indiana Code Chapter 34-26-5, the Civil Protection Order Act, was enacted by the General Assembly to provide the umbrella of protection that the trial court extended here.

Here, there is evidence in the record that Tons has in the past violently disciplined his son Travis, including punching him in the head with his fist and throwing him down a flight of stairs. Additionally, there was evidence of violence during the marriage between Barbara Bley and Tons. One may reasonably infer that Tons threat to beat Travis black and blue implicitly extended to anyone who might interfere with that mission, including Barbara and her current husband, Brian Bley. I believe, as with any factual determination by a trial court, that we should defer to the courts conclusion here that not just Travis, but also Barbara and Brian, should fall under the scope of the protective order it issued.

I also note that under Indiana Code Section 34-26-5-9(b)(1), (4), and (6), a protective order may be ordered to apply not only with respect to the person petitioning for the order, but also with respect to each designated family or household member. I believe this is tacit recognition by the General Assembly that when a respondent has threatened a petitioner with harm, other persons living with the petitioner who may not have been directly threatened are nevertheless at risk of harm by the respondent. I also conclude that the statute permits a protective order to be issued for the benefit of persons living with a threatened person, even if the respondent did not directly threaten those other persons. * * *

In my view, under the current scheme all that is needed to support an order prohibiting the possession of firearms or deadly weapons is a finding, by a preponderance of the evidence, that the respondent poses a credible threat to the safety of a petitioner or member of the petitioners household, which is identical to what is needed to order the issuance of a protective order in the first place. There need be no separate evidence and finding specifically relating to firearms and weapons and a substantial threat of serious bodily injury. In this particular case, I am convinced in any event that given Tons previously demonstrated violent tendencies, the trial court may reasonably have concluded that prohibiting Tons from possessing firearms or dangerous weapons was necessary to diminish the threat of violence to Travis, Barbara, and Brian. I would affirm the trial courts order in its entirety.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts 3 new rulings

USA v. Zingsheim, Philip J. (ED Wis.)

Before EASTERBROOK, MANION, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. After Darvin Moore entered a plea of guilty in a federal criminal prosecution, the district judge startled both sides by announcing that from that day on the prosecutor must reveal extra details as part of any request under U.S.S.G. 5K1.1 that the defendant receive a lower sentence to reward substantial assistance in the apprehension or prosecution of other offenders. The directive, which no one had requested and the district judge labeled a standing order, reads: [see decision] * * *

The United States has informed the judge that it will not provide the information about its deliberative process required by subparts (3)(c), (d), and (e); the district judge in turn has failed to act on any motion to reduce a sentence under 5K1.1. Although the record does not suggest that Moore would have been the beneficiary of such a motion in the absence of the order, the United States has filed a petition for mandamus, asking us to expunge the standing order.

In a second prosecution, however, the effect is demonstrable: the United States filed a motion asking the judge to sentence Philip Zingsheim below the guideline range. The district court ignored that motion and gave Zingsheim the highest sentence within the guideline range. Zingsheim and the United States have appealed. * * *

Standing orders have much the status of local rules, and the body entitled to decide whether a given rule of procedure (no matter its label) is inappropriate under the Rules Enabling Act, 28 U.S.C. 207177, and Fed. R. Crim. P. 57, is the Judicial Council of the circuit. This standing order is problematic, not only for the procedural reasons given by In re Dorner, 343 F.3d 910 (7th Cir. 2003), but also because it treats a decision by the United States to protect the confidentiality of internal deliberations as a reason to increase the defendants punishment. * * *

Zingsheims sentence is unlawful for a simple reason: the district court failed to exercise the discretion created by U.S.S.G. 5K1.1. See also 18 U.S.C. 3553(e), 28 U.S.C. 944(n). District judges must resolve motions that may affect sentences; they cannot be ignored, as the prosecutors was. Deferral is not an option. * * *

By ignoring rather than denying the prosecutors motion, the district judge withheld from the parties and this court the reasons for his decision. The standing order says that motions will be denied, not that they will be swept under the rug. The difference raises the question whether something else underlies the inaction, though the lack of explanation precludes a confident answer. * * *

Zingsheim must be resentenced. When deciding whether a sentencing discount is appropriate, the judge must not hold against Zingsheim the prosecutors decision not to provide information that meets the description of the standing orders subparts (3)(c), (d), and (e). Judges may not demand that litigants surrender evidentiary privileges as a condition of adjudication: what a privilege means is an entitlement to withhold information even if it would bear on the merits of a disputed issue. * * *

Zingsheims sentence is vacated, and the case is remanded with instructions to resentence him as appropriate under 5K1.1 and this opinion. The petition for a writ of mandamus is denied.

Gontcharova, Evgueni v. Ashcroft, John (On Petition for Review of an Order of the Board of Immigration Appeals)
Before CUDAHY, RIPPLE, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. The question in this asylum case is whether the immigration judge properly applied the corroboration rule, under which an asylum applicant may be required to present evidence corroborating her testimony even when that testimony is deemed credible. The test, as set forth by the Board of Immigration Appeals, hinges on whether it is reasonable to expect the applicant to produce particular pieces of evidence. Because we conclude that the rule was unreasonably applied in this case, we grant the petition for review. * * *

We GRANT the petitions for review, VACATE the IJs decision, and REMAND the case for further proceedings. Although the choice of a presiding judge is left to the discretion of the BIA, we urge the BIA to assign a different judge to this case on remand.

Christopher, Dennis v. Buss, Edward (ND Ind., Chief Judge Miller)
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Indiana prisoner Dennis W. Christopher brought this lawsuit under 42 U.S.C. 1983, alleging as relevant here that seven employees of Westville Correctional Facility violated the Eighth Amendment by failing to correct what he refers to as a protrusive lip on the prison softball field. He claims that the lip caused a ball to bounce up and hit him in the face, permanently injuring his right eye. The district court dismissed Christophers complaint prior to service, see 28 U.S.C. 1915A, for failure to state a claim upon which relief may be granted. Christopher appeals, and we affirm. * * *

It is at the objective stage of the inquiry that Christophers complaint fails. Even if the defendants knew about the field condition (we assume at this stage that they did) and purposefully ignored it, Christopher would not be entitled to relief. A protrusive lip on a softball field, even if hazardous when a ball hits it in a certain way, does not amount to a condition objectively serious enough to implicate the Eighth Amendment. Such lips where the infield joins the outfield doubtless exist on subpar fields across the country. To say that exposure to such a field could violate the Eighth Amendment would be to imply that prison officials violate the Eighth Amendment by letting inmates play sports at all, because the risk of injury, even serious injury, is inherent. Cf. James v. Hillerich & Bradsby Co., 299 S.W.2d 92, 94 (Ky. Ct. App. 1957) (negligence case noting ordinary risks of personal injury involved in a baseball or softball game).

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Indiana Decisions

Indiana Courts - Add another judge to Southern District of Indiana

"Send in a judge to lighten the load" is the headline to this editorial today in the Indianapolis Star. The Star's position: "Congress needs to add a federal judgeship in Indiana to make the workload more manageable." Some additional quotes:

According to Laura Briggs, the court's clerk, Indiana's Southern District ranks fourth out of the nation's 94 districts in the weighted caseload each judge is assigned. The district's five full-time judges juggle an average caseload of 695 cases -- more than double the load in many districts.

Although the district ranks first in the nation in the per-capita number of bankruptcy filings, its bankruptcy courts also are being hit with reductions in staff.

"My expression has been that we're working on tiptoes," says U.S. District Judge Sarah Evans Barker of the steadily increasing workload on judges and their staffs here. "You can do that for a while, but eventually you lose your balance."

She added, "This is a real crisis. And this is not simply some department of government with funding problems. This is the third branch of government, and the lack of funds is threatening its ability to deliver on its constitutional function."

Barker makes a convincing case. Congress should add another judge to the Southern District and stop cutting the size of the staff.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Indiana Courts

Law - The Supreme Court will hear land-use case

Updating our entry from Sept. 17th ("U.S. Supreme Court considers Poletown-type case") are a number of reports today, including this one by the NY Times' Linda Greenhouse, headlined "Justices Agree to Hear Property Rights Case." Some quotes:

The case is an appeal by seven property owners in a neighborhood in New London, Conn., that the city has designated for economic development. The Connecticut Supreme Court upheld the city's right to exercise its power of eminent domain to take the parcels, pay compensation to the owners and turn the land over to a private developer.

While eminent domain in the past was generally limited to government projects, like roads or public buildings, or to what used to be known as slum clearance, local governments are increasingly finding it convenient to use eminent domain to clear land for private development that will enhance the tax base.

New London's plans for the 90-acre neighborhood of small homes include a waterfront hotel and conference center, office space for high technology research and development, retail space and 80 new homes. The city has offered the property to a private developer under a 99-year lease at $1 a year. The property owners rejected the city's offer of compensation and filed a lawsuit to block the plan.

The question for the Supreme Court in Kelo v. City of New London, No. 04-108, is whether private development of this sort amounts to the kind of public use for which eminent domain is authorized by the Constitution. The so-called Takings Clause of the Fifth Amendment provides: "nor shall private property be taken for public use without just compensation." * * *

Although the case clearly caught the justices' attention sufficiently to induce them to select it from among the roughly 1,000 new appeals that accumulated over the summer recess, it is not clear how the court will decide it. The Supreme Court has traditionally been quite deferential toward the government's use of eminent domain. The case, which the court will hear in January, is likely to attract a large number of briefs and to spark a lively debate over whether New London's economic development proposal is different in kind from the uses the court has authorized for eminent domain in the past.

Lyle Denniston, writing for SCOTUSBlog.com, has posted a good look at the property rights review, and other cases added to the Court's docket yesterday.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to General Law Related

Environment - More on private sewage treatment plants

Updating our September 20th entry on private sewage treatment plants (2nd item) is a report today in the Louisville C-J. Some quotes:

More than 60 people attended a hearing last night on a proposed state water-quality rule that would restrict where package treatment plants can be built.

The rule was proposed by Greenville Concerned Citizens and Save Our Knobs, two grass-roots organizations working for more effective environmental regulation and better planning and zoning in Floyd County.

The rule would require new package treatment plants often used to treat sewage from new subdivisions to be located on streams that would dilute each gallon of treated sewage discharged with at least 10 gallons of stream water.

And the rule would prohibit developers from using streams that are dry part of the year.

A majority of the state's sewage plants now use such seasonal streams, according to the Indiana Department of Environmental Management.

David Wagner, a board member and hearing officer for the state Water Pollution Control Board, told the crowd in the Silver Creek High School Auditorium that he would compile a report for the board, including his recommendation, by Nov. 10.

If the county water pollution control board decides to create an ordinance based on the proposal, Wagner said, it would take at least six to nine months to complete.

The same confusion I've pointed to in earlier stories continues here. David Wagner is a member of the state Water Pollution Control Board. A citizens petition was presented to that State Board asking the State Board to pass a statewide rule dealing with private sewage-treatment plants. The public hearing held last evening in Floyd County was to receive input on whether the public thought the State Board should consider such a rule. Mr. Wagner will report to the State Board. The State Board will then decide whether or not to direct the State Department of Environmental Management to initiate a formal rulemaking process. If such a process is initiated, the rulemaking, if successful, will likely take 18 months or longer.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Environmental Issues

Indiana Courts - Death row inmate's lawyer makes last-ditch appeal

"Death row inmate's lawyer makes last-ditch appeal" is the headline to this story today by Maureen Hayden in the Evansville Courier-Press that details the lengthy post-conviction appeals process in a death penalty case. Some quotes:

In what may be the last step in a 22-year appeals process, attorneys for Indiana death row inmate Donald Ray Wallace have turned to the U.S. Supreme Court. * * *

Attorney Alan Friedman described the petition to the Supreme Court as based on a "hyper-legal technical argument," based on what Friedman and Midwest Center staff believe was a legal error made by the 7th Circuit Court of Appeals when it upheld Wallace's sentencing in March by a 7-4 vote. "This is not an argument based on issues of guilt or innocence,'' said Friedman. "This is an argument based on a technical issue involving a legal question." * * *

Friedman said the Supreme Court traditionally has agreed to hear few petitions for writs of certiorari, but he believes the legal issue in the Wallace case is significant enough to warrant the justices' attention.

"I think it's got a 50-50 chance,'' said Friedman.

If the Supreme Court agrees to consider the case, it would prolong Wallace's time on death row and could mean that the case would be sent back to a district court for resentencing. If the Supreme Court declines to hear the case, Wallace's appeals would be nearly exhausted. An execution date would be set and the only step left would be for Wallace's attorneys to ask the Indiana governor to spare Wallace's life by granting him clemency.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Indiana Courts

Environment - More on Gov. Kernan's plan

A story in the Indianapolis Star today by reporter Tammy Webber looks "behind the curtain" at Governor Kernan's new plan. The story is headlined "Environmental effect of proposal unclear." "Vague" might be an apt description for the plan. Some quotes:

Under the plan, one of nine new Cabinet posts would oversee cultural, natural and environmental resources and include an Office of Environmental Permitting. But officials have not decided whether the natural resources and environmental agencies would continue operating as they do now.

Department of Environmental Management Commissioner Lori Kaplan said it's "premature to say if those agencies will remain how they appear today," but industry and the public would have input.

Davis' spokeswoman Ronnetta Slaughter said environmental and natural resources protections would remain a priority.

"We're not saying that permitting is the only problem we're facing or that it is the only thing this office will pay attention to," Slaughter said. "There are other things Hoosiers are facing, and we are taking a close look at them."

Access the earlier ILB entry here.

Posted by Marcia Oddi on Wednesday, September 29, 2004
Posted to Environmental Issues

Tuesday, September 28, 2004

Indiana Courts - [Updated] New state court Blakely procedures

Several readers have forwarded me copies today of a memo from the Howard County Circuit Judge, Judge Lynn Murray, outlining the changes in criminal sentencing procedure being implemented immediately in Howard County "in view of" Blakely. Access the scanned memo here.

Apparently this memo results from last week's Judicial Conference, and Howard County is among the first to promulgate its procedural changes.

I have now been able to OCR the memo, so can present it in full below (the scanned version is available above):

TO: Howard County Bar Members practicing criminal law in Circuit Court
FROM: Lynn Murray, Judge Hoard Circuit Court
DATE: September 28, 2004
RE: Changes with regard to criminal sentencing procedure

In view of the U.S. Supreme Court opinion Blakely v. Washington, 124 S.Ct. 2531 (2004), the Howard Circuit Court is immediately implementing certain procedural changes with regard to felony criminal cases.

In those cases in which the State seeks to have a defendant charged with a felony sentenced to a penalty greater than the presumptive sentence, the State must file a document separate from the rest of the charging information, alleging the existence of one (1) or more aggravating circumstances, called a Notice of Potential Aggravators. The Notice should be filed the earliest of thirty (30) days before trial or if the trial is scheduled within thirty (30) days, by the pretrial hearing date.

In those felony cases which proceed to jury trial and result in conviction, and in which the State has filed a Notice of Potential Aggravators, the jury trial will have a second sentencing phase. The jury will be instructed and hear evidence to determine if the State has proven the existence of each noticed aggravating factor beyond a reasonable doubt. If the defendant is convicted of the felony by trial to the court without a jury, the court alone shall hear evidence on the aggravating circumstances.

Note that Blakely exempts prior convictions, facts admitted by the defendant, and Facts necessarily proven by the verdict, as aggravators that must be proven to a jury beyond a reasonable doubt.

The court shall not accept a plea of guilty without first determining that the defendant has been informed that by pleading guilty, the defendant waives the right to have a jury determine the aggravating circumstances.

Posted by Marcia Oddi on Tuesday, September 28, 2004
Posted to Indiana Courts

Indiana Decisions - Four posted today by Court of Appeals

Damorrow Bledsoe v. State of Indiana (9/28/04 IndCtApp) [Criminal Law & Procedure - OPINION ON REHEARING]
Baker, Judge

Damorrow Bledsoe petitions for rehearing with regard to our unpublished memorandum decision in Bledsoe v. State, No. 49A05-0311-CR-586 ( Ind. Ct. App. June 29, 2004). In our original opinion, we determined that Bledsoe failed to show that the trial judge had been biased or prejudiced against him. Thus, we rejected Bledsoes argument that he was denied the right to a fair trial on this basis. We now grant rehearing for the limited purpose of addressing Bledsoes arguments regarding sentencing errors that were purportedly triggered by the recent decision of Blakely v. Washington, 124 S. Ct. 2531 (2004). * * *

In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve yearstwo years beyond the presumptivefor committing the offense of burglary as a class B felony. [See footnote] In so doing, the trial court relied upon Bledsoes prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities. As we have established in [(Jason) Carson v. State (Ind. Ct. App. August 20, 2004)], prior convictions shown by a defendants criminal history are exempt from the Apprendi rule as clarified by Blakely. Also, just as we observed with respect to the circumstances in Carson, the remaining aggravating circumstances in Bledsoes case merely derive from his criminal history. Thus, the Blakely analysis is not implicated. Finally, there is no indication that Bledsoe objected to the contents of the pre-sentence investigation report.

In any event, it has been determined that a single aggravating circumstance will justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). That said, even if our supreme court were to find that Indianas sentencing scheme runs afoul of the Sixth Amendment for the reasons that were articulated in Blakely, such a determination would have no effect on Bledsoes sentence. Accordingly, we grant Bledsoes petition for rehearing, but deny his requested relief. Thus, our original opinion stands in all respects.
FRIEDLANDER, J., and BAILEY, J., concur.
Footnote: The trial court added fifteen years to this count after it was determined that Bledsoe was a habitual offender. Thus, an aggregate sentence of twenty-seven years was imposed.

Daryl Burnett v. State of Indiana (9/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

Daryl Burnett, Jr., appeals his convictions, following a jury trial, for Kidnapping, a Class A felony, and Robbery, as a Class B felony. Burnett presents two issues for review: [1.] Whether the trial court abused its discretion under Indiana Evidence Rule 702 when it allowed the States fingerprint expert to testify as an expert at trial. [2.] Whether the State presented sufficient evidence to sustain Burnetts convictions. We affirm. * * *
SULLIVAN, J., and BARNES, J., concur.
In the Matter of the Adoption of M.A.S. (9/28/04 IndCtApp) [Family Law]
Sharpnack, Judge
Dale Wayne Evans (Father) appeals the trial courts grant of a petition to adopt M.A.S. filed by Christopher Murray (Stepfather). Father raises three issues, which we consolidate and restate as whether the trial court erred by granting Stepfathers petition to adopt M.A.S. We affirm. * * *

For the foregoing reasons, we affirm the trial courts grant of Stepfathers petition to adopt M.A.S. Affirmed.
BAILEY, J. and MAY, J. concur

M.B. v. State of Indiana (9/28/04 IndCtApp) [Juvenile Law]
Friedlander, Judge
Fifteen-year-old M.B. appeals a true finding that he committed an act that would constitute the offense of Battery, a class A misdemeanor, if committed by an adult. M.B. presents the following restated issues for review: [1.] Did the juvenile court lack jurisdiction by virtue of its failure to enter a separate order, pursuant to [IC] 31-37-10-2, finding probable cause to believe M.B. had committed a delinquent act and that it was in the best interests of the child or society to file the petition? [2.] Did the juvenile court err in placing M.B. with the Department of Correction? We affirm. * * *
BAKER, J., and DARDEN, J., concur.

Posted by Marcia Oddi on Tuesday, September 28, 2004
Posted to Indiana Decisions

Indiana Law - More on homeowner associations

Supplementing our entry from September 19th on "Homeowners associations and deed restrictions" is this article published Monday in the South Bend Tribune, headlined "Fenced in by covenants."

Posted by Marcia Oddi on Tuesday, September 28, 2004
Posted to Indiana Law

Environment - Returning a 7,000-acre Illinois farm to swampland

"Future of Illinois Farm May Lie in Swampy Past" was the headline to this story published yesterday in the NY Times. Some quotes:

HAVANA, Ill, Sept. 20 - Every autumn for more than 80 years, a sprawling farm beside the Illinois River has yielded a rich bounty of corn and other crops. Now it is being turned back into a swamp.

Four years ago an environmental group bought the 7,000-acre farm, which for generations has been one of the largest in Illinois. Over the next few months, ecologists will begin allowing it to flood.

Based on their experience in smaller projects, the ecologists think that within just a year or two, they can return this farm to its natural state as a thriving wetland. And they believe they can do it without planting a single seed. All they need to do, they say, is to stop sowing corn and to allow water levels to rise, and soon the seeds of wetland plants that have lain dormant in the soil for 80 years will spring to life.

This suggests that the century during which food was grown along the banks of America's great rivers may one day be seen as an aberration, a brief parenthesis in the life of rich swamps that thrived along these rivers for thousands of years.

If the project here, about 165 miles southwest of Chicago at a farm called Emiquon, works as expected, planners would like to see it duplicated around the United States and beyond. They dream of the day when there will be fewer farms along riverbanks and more swamps.

Posted by Marcia Oddi on Tuesday, September 28, 2004
Posted to Environmental Issues

Monday, September 27, 2004

Environment - Governor Kernan proposes reorganization

In a proposal for the reorganization of state government announced today, Indiana Governor Kernan has proposed nine cabinet offices, including one dealing with "cultural, natural, and environmental resources." (organization chart)

The proposal includes the creation of an Office of Environmental Permitting within the Cultural, Natural and Environment Resources Cabinet. (see p. 4 of this report). As explained in the document:

The Need. The state is responsible for issuing a range of environmental permits throughout Indiana. However, it is important that this direct service to business owners, residents, developers, local governments and others be as quick and efficient as possible, and without unnecessary hurdles. Currently, 25 permitting programs in two agencies have responsibility for issuing environmental permits. As a result, the permitting process is inefficient and confusing for Hoosier businesses and others. The state must take steps that guarantee a clearer process to make sure that laws and regulations are enforced consistently and at the mandated levels, as well as provide a quicker turnaround in permit applications.

Through the creation of the Office of Environmental Permitting, all of the states environmental permitting responsibilities will be coordinated through one agency. This will mean a one-stop shop for Hoosier business owners, residents, local governments and others seeking permits. This office will consist of a central group of staff that will be responsible for:

Receiving, distributing, assigning, tracking and coordinating the processing of certain environmental permits;
Streamlining and improving permit processing;
Managing the public process for permits;
Enhancing the use of technology for permit receipt and processing;
Coordinating projects requiring multiple state permits (and federal permits);
Establishing permit processing goals and accountability measures; and,
Reporting information on permit processing to the public.

Additionally, this new office will allow for the coordination of enforcement staff currently spread throughout separate divisions of state government. This coordination will help make sure response times are quicker, that enforcement actions are consistent and better protect our environment.

The Governor's proposal is called The Peak Performance Project. The Indianapolis Star has a brief story this afternoon on its website.

[Update 9/28/04] Lesley Stedman Weidenbener has good coverage today in the Louisville CJ. The Indianapolis Star has expanded coverage. One brief Star story is particularly interesting, a call for a look at the "quasi-publics," a subject written about here many times.

Posted by Marcia Oddi on Monday, September 27, 2004
Posted to Environmental Issues

Indiana Decisions - One Court of Appeals decision posted today

Ann Zuniga v. State of Indiana (9/27/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

STATEMENT OF THE CASE. Appellant-Defendant, Ann Zuniga (Zuniga), appeals her conviction for visiting a common nuisance, a Class B misdemeanor, Ind. Code 35-48-4-13(a). We reverse.

ISSUE. Zuniga raises two issues on appeal, which we consolidate and restate as follows: whether the State presented sufficient evidence to sustain Zunigas conviction for visiting a common nuisance. * * *

DISCUSSION AND DECISION. Zuniga contends that the evidence presented at trial was insufficient to support her conviction. Specifically, Zuniga argues that the State failed to prove beyond a reasonable doubt that (i) she had knowledge of the common nuisance and (ii) that the common nuisance had been the location for illegal drug use on at least one prior occasion. * * *

Based on the record and testimony of witnesses, we conclude that there is insufficient evidence of probative value to sustain Zunigas conviction for visiting a common nuisance. Although there is sufficient evidence to prove that Zuniga had knowledge that the residence was used for the unlawful use of a controlled substance, the State failed to provide any evidence that the residence was used on more than one occasion for the unlawful use of a controlled substance. As a result, we hold that the State presented insufficient evidence to support Zunigas conviction for visiting a common nuisance.

CONCLUSION. Based on the foregoing, we find that the State presented insufficient evidence to sustain Zunigas conviction for visiting a common nuisance. Reversed.
CRONE, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Monday, September 27, 2004
Posted to Indiana Decisions

Indiana Decisons - 7th Circuit Posts Four Today

Franklin, Edward v. City of Evanston (ND Ill.)

Before CUDAHY, POSNER and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. Edward Franklin, an employee of the City of Evanston (the City), was arrested for possession of a small amount of marijuana. Learning of Franklins arrest in the local paper, the City instituted disciplinary proceedings against him while his criminal case was pending. Franklin unsuccessfully requested that the disciplinary proceedings be continued for a few months until his criminal case was resolved. The City pressed ahead with its disciplinary hearings, questioning Franklin about the criminal charge without warning him, as we have long held to be required by due process considerations, that he would be granted immunity from prosecution based on his answers and that a failure to answer would therefore be viewed negatively. At oral argument, the City admitted that its failure to provide Franklin with the required warnings was pursuant to its policy based on an extremely narrow interpretation of our case law, under which warnings would be required only if the City explicitly required an employee to answer questions on pain of losing his or her employment. However, because the Citys admitted policy effectively does not allow employees in Franklins situation an opportunity to tell their side of the story without penalty, we find that the City violated Franklins right to procedural due process under 42 U.S.C. 1983. For the reasons set out in this opinion, the district courts grant of summary judgment to the City on this issue is therefore reversed.
Martin, Alfred v. Evans, John (ND Il.)
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. * * * In January of 1996, a jury found Alfred Martin guilty of first-degree murder and sentenced him to 50 years in prison. After failing on direct appeal, Martin filed a petition for writ of habeas corpus in the district court * * *

Three issues have been certified for appeal to this court: 1) whether Martin was denied his Sixth Amendment right to effective assistance of appellate counsel; 2) whether the above-stated claims three through seven were procedurally defaulted; and 3) whether Martins claim regarding the denial of a continuance is non-cognizable. * * *

Based on the foregoing analysis, Alfred Martin is not entitled to federal habeas relief on any of his claims. AFFIRMED.

Kramer, Carl R. v. Village North Fond (ED Wis.)
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Carl R. Kramer sued the Village of North Fond du Lac and Chief of Police Larry Wodack, seeking damages for various constitutional violations, all under the umbrella of 42 U.S.C. 1983. The events giving rise to the lawsuit occurred in 1996 after a criminal investigation into illegal gambling at taverns in the Village of North Fond du Lac by means of payouts (i.e., exchange of cash for accumulation of points) on Cherry Master video slot gambling machines. The lower court granted the defendants summary judgment. The district courts Decision and Order is attached. After careful review, we affirm and adopt the Decision and Order as our own. [Note - Unfortunately it is NOT attached; rather, there are 19 blank pages.]
Hasanaj, Ardian v. Ashcroft, John (Petition for Review of an Order of the Board of Immigration Appeals)
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. This is an immigration case in which the petitioner, Ardian Hasanaj, seeks review of a final order of the Board of Immigration Appeals (BIA) affirming a removal order issued in Immigration Court. * * *

In order to establish a denial of the right to due process, Hasanaj must show that he was prejudiced by the IJs actions. Wigglesworth v. INS, 319 F.3d 951, 960 (7th Cir. 2003). Hasanaj has not pointed to any evidence that might establish prejudice. The IJs questioning of Hasanaj was relevant and appropriate. The Petitioner was not barred from testifying about conditions in Albania subsequent to his departure and he did submit voluminous documentary evidence regarding such conditions. He had full opportunity to present his case even without the continuance. He submitted extensive documentary evidence at the hearing, and his testimony was lucid and credible. The record reveals nothing to suggest that he was prejudiced by any of the IJs questions, findings, or decisions. His claim of denial of due process is unfounded.

The IJs and BIAs decisions regarding Hasanaj are AFFIRMED and his petition for review is denied.

Posted by Marcia Oddi on Monday, September 27, 2004
Posted to Indiana Decisions

Indiana Decisions - Is the Indiana Supreme Court about to rule on Blakely's application to state court sentencing? [Update: Well, yes]

Is the Indiana Supreme Court about to rule on the application of Blakely v. Washington to state court sentencing?

On September 10, 2004 the Indiana Supreme Court granted transfer in two cases, Bruce Grant Heath v. State, and Adolphe Smylie v. State. Both of these cases were classified as not for publication (NFP) by the Court of Appeals.

I have now obtained copies of the two opinions. In Smylie v. State 94/13/04):

Smylie claims that his sentence is inappropriate because the trial court relied on improper aggravators and failed to consider relevant mitigators.
In Heath v. State (6/16/04) an issue was "Whether the trial court improperly weighed the aggravating and mitigating factors in determining Health's sentence."

In both decisions, the Court of Appeals affirms the trial court. In neither of these decisions is Blakely v. Washington mentioned. Note that although the federal courts may be waiting for the U.S. Supreme Court to decide the impact of Blakely on the U.S. Sentencing Guidelines, that is not an issue here.

[More] Bloomington attorney Michael Ausbrook (INCourts blog) has pointed me to the docket for the two cases. Thanks Michael! Consolidated oral argument regarding Blakely will take place on November 10th:





Posted by Marcia Oddi on Monday, September 27, 2004
Posted to Indiana Decisions

Indiana Courts - Clark County seeks to hire judge

The Louisville Courier-Journal reports today that "Clark [County] studies adding a judge: Goal is to ease crowding at jail." Some quotes:

A top elected official in Clark County wants to hire a temporary judge in the hope that a speedier judicial process will help relieve pressure on the crowded jail in downtown Jeffersonville.

The extra judge could work out of a meeting room in the City-County Building, said Vicky Kent Haire, president of the county's Board of Commissioners.

Haire said she is seeking advice from the county's legal staff to find out what steps would be required to make the temporary hire.

Posted by Marcia Oddi on Monday, September 27, 2004
Posted to Indiana Courts

Law - U.S. Supreme Court considers Poletown-type case

Tony Mauro, writing for Legal Times, reports today that "Major Land Use Case Lands on Supreme Court's Doorstep." Some quotes:

A case that raises what property rights advocates say may be the most important land use issue in decades goes before the Supreme Court at its private conference today.

At issue in Kelo v. City of New London, Connecticut, No. 04-108, is whether governments, under their eminent domain power, may condemn property for the benefit of private developers rather than for such traditional public uses as roads or parks. The Court will announce soon after the conference whether it will review the case. * * *

[Dana Berliner, senior attorney at the Institute for Justice, which petitioned the Court in the case] responds that Supreme Court review is needed to end the "chaos" in lower courts over what public use means. "It's time," she says.

One recent decision in Michigan reached an opposite conclusion from the Connecticut ruling at issue in Kelo. The Michigan Supreme Court in July reversed its controversial 1981 ruling in Poletown Neighborhood Council v. City of Detroit, which allowed Detroit to condemn hundreds of properties for the benefit of General Motors. The Michigan court said it was rejecting the view that "a private entity's pursuit of profit was a 'public use' for constitutional takings purposes simply because one entity's profit maximization contributed to the health of the general economy."

An amicus brief filed to support Kelo also argues that the expansion of eminent domain has given unfair advantage to rich and powerful interests over poorer property owners.

"Only this court can restore the 'public use' clause as an effective constitutional limit on the abuse of government power," writes James Burling of the Pacific Legal Foundation.

Joining in the brief were George Mason University economists James Buchanan, a 1986 Nobel Prize winner, and Gordon Tullock.

Earlier Indiana Law Blog entries citing Poletown may be found by typing "Poletown" in the search box in the right column.

Posted by Marcia Oddi on Monday, September 27, 2004
Posted to General Law Related

Indiana Decisions - More on Street v. State

On Friday I reported here on the case of Street v. State, a Court of Appeals decision issued Friday, 9/23/04, ruling, as stated in the Indianapolis Star, that "A man convicted of fatally shooting his mother and wounding his father in their Terre Haute home in 1993 should not have been found competent to stand trial ...". I have obtained a copy of the decision; it may be accessed here.

Pursuant to Appellate Rule 65, the decision was classified by the Court of Appeals as a not-for-publication memorandum decision (NFP). Recall that under Rule 65(D), "Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case."

Posted by Marcia Oddi on Monday, September 27, 2004
Posted to Indiana Decisions

Sunday, September 26, 2004

Environment - Stories Today

"Well contamination may cost Martinsville $6 million" is the headline of this story in the Mooresville/Decatur Times, following up on the groundwater contamination stories reported here on 6/22/04 and 6/29/04.

"Hidden environment: Heated Daniels-Kernan contest excludes talk of green issues," is the title of a lengthy editorial today in the Ft. Wayne Journal Gazette. An editorial with a similar point appeared in the Sunday Indianapolis Star on June 27; the headline was "State's environmental record should be an issue in governor's race, but it's not." Read more here.

A front-page story in today's Indianapolis Star reports "Antiquated sewers wear on waterways: City still struggling to update system." A quote:

[T]hree years after the city of Indianapolis outlined a billion-dollar, 20-year plan to fix the problem -- and raised sewer rates to help pay for it -- officials are preparing to tell residents next month that they need more money. Possibly another $1 billion or more.

Posted by Marcia Oddi on Sunday, September 26, 2004
Posted to Environmental Issues

Law - Tension between privacy, security and the right to access public records

Last week the Greenwich Time, a Connecticut paper, published a story headlined "State's highest court to hear town case on public records" that reported:

Perhaps sensing its potentially far-reaching ramifications after the Sept. 11, 2001, terrorist attacks, the state's highest court will now decide a landmark public records case involving access to aerial reconnaissance photographs and maps of Greenwich.

The town maintains the images in a tightly kept database known as a geographic information system, which a judge declared to be public records last December.

The Connecticut Supreme Court announced Monday that it will hear the town's appeal of that ruling, expediting the case by leap-frogging the state Appellate Court. * * *

"I could see where the Supreme Court would want to take it," said Clifton Leonhardt, director of litigation for the state FOIC, which sided with the computer consultant in the case and is named a defendant in the town's appeal. "It's a first in the United States, a case of first impression on a national basis. It really is a case of 'Where are we going with computerized records?' "

Leonhardt said placing restrictions on the images, which the town effectively does by making only individual maps available to citizens, undermines the public's ability to analyze the same data government relies on in its decision-making.

Assistant Town Attorney Haden Gerrish also noted the significance of the case, but for different reasons. "I think it shows that the court recognizes the importance of the public safety issues involved," said Gerrish, who has long argued that the unfettered release of detailed information on infrastructure, public safety facilities, schools and celebrities' homes in electronic form could lead to breaches in security and privacy. * * *

Among those public records watchdogs who will be monitoring the case is Charles Davis, executive director of the Freedom of Information Center at the Missouri School of Journalism.

"I sense the importance of this case in that it is a good conceptualization of a post-Sept. 11 clash between access and privacy," Davis said. In Connecticut, Davis said, the burden of proof in public records cases rests largely with government agencies.

"Without access to GIS systems and images, we're allowing government to create an extremely powerful parallel universe without any scrutiny of that parallel universe, and that's fraught with disaster," he said.

I was particularly taken with this comment from the Slashdot.com discussion of the article. [Thanks to How Appealing for the pointer.]

And what about Indiana? The Indianapolis Star today has a story titled "Angling for a better view: As officials hail benefits of aerial imaging tool, some see risk for abuse." Here is a description of the new tool from a side-bar to the story:

A new tool being used by Indianapolis officials provides digital aerial views of the city from an angle, such as this one of the Indiana Statehouse. That's a big improvement over more traditional straight-down photography (the same building, left) because it allows users to see building facades and measure height and distance. The new pictures are taken at two altitudes -- 2,500 feet and 5,000 feet -- depending on the level of detail needed for a particular area. -- Photo provided by IndyGIS/Pictometry International Corp.
From the story itself:
The technology, created by Rochester, N.Y.-based Pictometry International Corp., allows officers to view the entire city, building by building. It can show structures at an angle, exposing features -- such as exits -- that are hidden in the more widely used straight-down photography.

"We can look at how best to approach an area," said Indianapolis Police Lt. Dale True, who is assigned to emergency management. "We can pre-scan the area looking for threats and protective areas."

While at least one group has raised privacy concerns about the technology, city agencies are using the images not only for police work but for everything from enforcing sign permits to helping the Parks Department eradicate weeds.

The images are collected by airplanes that fly above Marion County once a year and are calibrated so that a user can, in most parts of the city, view buildings and neighborhoods from four different directions. * * *

Elizabeth Ross, a project engineer with the Department of Public Works, uses the software to help residents with drainage problems after heavy rains. Ross can identify ditches and land elevations that affect flooding.

"You almost feel like you've been to the area before you've ever been there," Ross said. "When I do make that site visit, I'm able to make it count."

And here is the tension:
But at least one Washington-based privacy group has raised questions about the technology, arguing that better guidelines should be put in place to prohibit misuse.

"The real key with evaluating a lot of this new technology is to look at the nature of the purpose of the data collection," said Marc Rotenberg, executive director of the Electronic Privacy Information Center.

The city said safeguards are already in place. The image resolution is limited to 6-inch pixels, meaning that anyone attempting to zoom in on a license plate, on a face or through a window would see only large, unidentifiable blotches.

And unlike the straight-down views, which are available on the city's Web site [select "general viewer"], Pictometry pictures will be viewed only by city and county employees.

"Pictometry pictures will be viewed only by city and county employees." Hmmm.

Posted by Marcia Oddi on Sunday, September 26, 2004
Posted to General Law Related

Indiana Law - Feature on Muncie attorney

The Muncie Star-Press has a feature today on a Muncie attorney who is running for Delaware County commissioner, titled "Brooke's legal experience circles the globe." It begins:

MUNCIE - John Brooke stands before a map of the United States in his downtown law office. The map is studded with dozens of stick pins, each representing the location of one of his clients.

"This is one of my favorites," Brooke says, pointing to a pin sticking in Hawaii. "He's a great guy."

How often does Brooke get to Hawaii?

"Not often enough," he says, laughing.

Brooke plainly loves his job as an attorney for clients ranging from the town of Albany to Hong Kong fireworks manufacturers. At a reporter's request, he gives a tour of his 15,000-square-foot building, which is home to the Brooke and Mawhorr law firm.

He tells the history of the vintage Chinese fireworks company posters that adorn the walls of one conference room - dubbed the Hong Kong Room - and laughs when one of his 15 employees recounts the smell that emanated from a collection of exotic beetles Brooke brought back from one Far Eastern trip.

Why would a successful attorney with clients in 44 states and seven countries run for Delaware County commissioner?

Posted by Marcia Oddi on Sunday, September 26, 2004
Posted to Indiana Law

Indiana Courts - Several stories today

There are a number of interesting law-related stories today in the Munster Times:

Using Porter County courts as an example, this story discusses delay in the state's criminal court system.

Four stories focus on the juvenile justice system:

"A day in juvenile court"

"Juvenile not the only focus of justice system"

"A teen, a detention center, a court order"

"Drugs, defiance led one teen to justice system"

Posted by Marcia Oddi on Sunday, September 26, 2004
Posted to Indiana Courts

Saturday, September 25, 2004

Indiana Decisions - New attorney disciplinary cases posted

A number of new Orders of Final Resolution in Attorney Disciplinary Cases have been posted. The full list is here. September listings include:

9.20.04 - In the Matter of Philip R. Dawalt, Jr.
9.20.04 - In the Matter of Lawrence W. Lunn
9.20.04 - In the Matter of Robin E. Willis
9.20.04 - In the Matter of Melanie K. Reichert
9.17.04 - In the Matter of Robert E. Lehman
9.17.04 - In the Matter of William P. Headlee [reinstated]

The Marion/Grant County Chronicle-Tribune contains a story today on the Dewalt suspension that begins:

The Indiana Supreme Court has suspended Marion attorney P. Robert Dawalt's law license for 18 months starting Nov. 1, saying he improperly handled money a client received in a personal injury case.

According to an order signed this week by Chief Justice Randall T. Shepard with other justices concurring, Dawalt deposited a check in a trust account for his client, but did not forward the money to the client. Instead, he cashed checks from the account.

"The client tried for over a year to contact (Dawalt) about the settlement, but (he) did not respond to any of these efforts," the order said.

Posted by Marcia Oddi on Saturday, September 25, 2004
Posted to Indiana Decisions

Indiana Law - Whiting curfew ordinance impacts parents

"Irresponsible parents could be fined: New curfew revision allows up to $2,500 penalty if crime is committed" is the headline to this story today in the Munster Times. Some quotes:

WHITING -- Parents who allow their children out after curfew can face a stiff fine for any property damage the child causes.

The Whiting Common Council's revision of the city's curfew ordinance comes in response to a recent U.S. Supreme Court ruling that allows children younger than 18 to be out after curfew hours if they have a parent's permission.

Whiting's ordinance fines a parent or guardian up to $2,500 per incident if convicted of a crime.

"If a parent allows their children to roam the streets after curfew and they get into trouble, being subject to a financial penalty for their irresponsibility is warranted," Whiting Mayor Joe Stahura said.

Emphasis added. I am unaware of the "recent U.S. Supreme Court ruling" referenced. We have had a number of decisions from the SD Indiana and the 7th Circuit - see this July 23rd Indiana Law Blog entry on the issue.

Posted by Marcia Oddi on Saturday, September 25, 2004
Posted to Indiana Law

Environment - State OK's Randolph County dairy CAFO

"State OK's Randolph County dairy CAFO" is the headline to this story in the Muncie Star-Press. Some quotes:

WINCHESTER - Five weeks after hearing complaints from angry opponents, the Indiana Department of Environmental Management on Friday issued a permit for European immigrant Tony Goltstein's planned 1,650-cow dairy CAFO (concentrated animal feeding operation).

The National Pollutant Discharge Elimination System permit was issued "because they met all the requirements in the rule," said Tim Method, deputy commissioner of IDEM, in an interview. "They were able to clearly meet the requirements of the rule, so we are obligated to issue the permit. We have no discretion." * * *

Opponents have 15 days to challenge the permit by filing a petition for administrative review with the Office of Environmental Adjudication. OEA was created in 1995 to review IDEM enforcement actions and decisions to issue or deny permits. Challenges are heard by OEA's environmental law judges.

Ivonne Goltstein, Tony's wife, on Friday said: "We worked very hard to accomplish this. We did a lot of things the opponents asked for. It's going to cost us a lot more money to do this project. We worked very hard and waited a very, very long time. We are pretty sure this is going to be a very good CAFO." * * *

Vreba-Hoff Dairy Development, of Wauseon, Ohio, is assisting the Goltsteins and dozens of other European dairy farmers in re-locating to Indiana, Ohio and Michigan. The Goltsteins, doing business as Union-Go Dairy, would be the 12th Vreba-Hoff-affiliated dairy in Indiana, including one in Madison County and one in Henry County. * * *

IDEM's Amy Hartsock said the agency required the Goltsteins to obtain an individual NPDES permit rather than a general NPDES permit, which allowed the agency to impose more conditions. Those include:

  • Construction of a landfill-like liner for the manure storage lagoon consisting of two feet of compacted clay and a PVC liner.
  • Installation of a ground water monitoring system around the storage lagoon.
  • Installation of a perimeter sub-surface drainage system to lower the ground water table under the lagoon.
  • Document, through photographs, continuous engineering oversight during construction of the CAFO.
See also this story from the Richmond Palladium-Item, headlined "IDEM approves megadairy plan."

Posted by Marcia Oddi on Saturday, September 25, 2004
Posted to Environmental Issues

Law - Is justice too important to be left to the judges?

"It is hard to pinpoint the exact moment in American history when we decided that justice was too important to be left to the judges. But it was a big mistake." That was the lead to an editorial last week in the Salt Lake Tribune arguing against mandatory minimum sentencing laws.

I thought of the quote this morning when I read this editorial in the Indianapolis Star, arguing against recent Congressional efforts to strip the courts of jurisdiction over certain cases. Some quotes:

Thursday's vote by the U.S. House to deny the Supreme Court authority to hear cases related to the Pledge of Allegiance is the latest in a series of "court-stripping" actions by conservative lawmakers who claim activist judges are usurping the will of the majority.

Flag-burning and same-sex marriage are among other issues subject to such legislation. It stands no chance in the Senate, but serves its purpose, especially in an election year, by allowing proponents to present themselves as champions of the people in a highly emotional climate.

In fact, the courts function in large part as a brake on popular enthusiasm, lest it threaten the rights of minorities under the Constitution. * * * Judges will err and overreach, or be perceived to do so. Congress may respond in many ways, including rewriting laws that are struck down and seeking to amend the Constitution. Many members have done the latter on such issues as the flag and marriage. But to go farther and presume to tell the Supreme Court what it may review is not only futile, it's fallacious. Separation of powers is not a political option, liberal or conservative.

Posted by Marcia Oddi on Saturday, September 25, 2004
Posted to General Law Related

Friday, September 24, 2004

Indiana Decisions - Report on Court of Appeals oral argument

On Sept. 14th we reported here on an upcoming argument before the Court of Appeals at the IU School of Law-Indianapols. Apparently the argument took place Monday, Sept. 20th. I've failed to locate any earlier report, but here is a story today from the Princeton Daily Clarion. It does not appear that the reporter attended the argument. None of the IU/Indy law school-related sites I checked mentioned the argument (or much else academic).

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Decisions

Indiana Decisions - Not available

As is often the case on Fridays, at least one opinion has been issued, but has not been posted on the court's website, and probably will not be available until after 2 p.m. on Monday. Grumble.

The press receives paper copies of the opinions. And true, if I went down to the Statehouse, I could also access a paper copy. But I cannot access an online copy to link to, because today's decisions have not been posted.

[Correction] I've just learned that the case reported below was not posted because it has been designated Not for Publication by the Court of Appeals. That means it will never be posted online, unless one of the parties moves to have it redesignated, and the motion is granted. Readers may recall that last week two of the three cases granted transfer by the Supreme Court had been designated NFP, and have not been posted online.

The Indianapolis Star is reporting this afternoon, in a story titled "Murder conviction reversed on mental grounds," that:

A man convicted of fatally shooting his mother and wounding his father in their Terre Haute home in 1993 should not have been found competent to stand trial, the Indiana Court of Appeals ruled today.

The appeals court vacated the guilty pleas Howard Frank Street Jr. made to charges of murder and attempted murder. But the ruling said there was no dispute that Street committed the crimes, so he could be tried again if he regains competency. * * *

Katherine Liell, Street's attorney, said she hoped her client was ultimately diverted to the mental health system and will "finally be getting the help he deserves."

"I've represented him for so many years and I was not going to give up this fight, because I am absolutely certain that Mr. Street was incompetent at the time he committed the offenses and still is today," Liell said.

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Decisions

Indiana Decisions - One so far today from 7th Circuit

Sullivan, Frank M. v. CBS Corporation (ND Ill.)

Before RIPPLE, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Seeking to protect his trademark in the band name Survivor (the Band), Frank Sullivan brought an action alleging trademark infringement, federal and common law trademark dilution, unfair competition, and deceptive trade practices against defendants CBS Corporation, CBS Broadcasting, Survivor Productions, TVT Records and Tee Vee Toons, (collectively referred to as CBS), the producers and distributors of music CDs and merchandise bearing the logo of the well-known television show, Survivor (the Series). Sullivan, who registered the mark Survivor in connection with the Band in 1994, claims that the defendants cannot use the word Survivor on their CDs and merchandise. The district court granted summary judgment in favor of the defendants, holding that although Sullivans mark is entitled to protection, Sullivan cannot demonstrate any likelihood of confusion as to the origin of the CDs or merchandise related to the Series, nor can Sullivan show any likelihood of dilution. On our de novo review, we too conclude that Sullivan cannot show any likelihood of confusion or dilution, and so we affirm the judgment of the district court. * * *

Sullivan, through his band Survivor, has been fortunate enough to have a successful rock band, succeeding in a business where many fail. CBS, through its show Survivor, has (for better or for worse) revolutionized the world of reality television. Both Sullivan and CBS are using the same mark, but we hold that there is no likelihood of confusion in the minds of consumers. We therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Decisions

Indiana Decisions - No transfer list for week ending September 24, 2004

I'm told the Supreme Court did not have conference this week so there is not a
transfer list.

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Transfer Lists

Law - Documents trump DNA in Illinois paternity suit

An AP story today in the Munster Times reports:

SPRINGFIELD (AP) -- Documents trump DNA when it comes to deciding a child's legal father, the Illinois Supreme Court ruled Thursday.

The court held that a man who signed a paternity agreement saying he fathered a baby cannot challenge the document now, even though DNA tests prove he isn't the biological father. The agreement can be challenged if it was obtained through fraud or duress but not because it is simply wrong, the court said.

The Illinois Supreme Court decision is THE PEOPLE ex rel. THE DEPARTMENT OF PUBLIC AID v. ROMEL C. SMITH. Access it here.

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to General Law Related

Indiana Law - Details of Hospital Contract Interesting

The details of the contract of Porter hospital (formerly known as Porter Memorial Hospital in Valparaiso) with its CEO are detailed in the Gary Post Tribune today, in this story. Some quotes:

VALPARAISO The chairman of Porter hospitals board of directors says the board will remove a controversial clause in the contract of its CEO. The rolling term clause would have renewed CEO Ron Wingers five-year contract every day he showed up for work.

Charges that the clause was added without the knowledge of the board have surfaced in the past week, after copies of the contract were distributed by Julie Wheeland, founder of Porter Watch, a recently formed hospital watchdog group. * * *

The rolling term was news to former board vice president Dan Roszkowski, who oversaw Wingers hiring in 2001. * * * Roszkowski said he was surprised the board will just now be discussing the amendment 19 months after it was signed by board chairman John Rhame III and Winger. But Rhame said the rolling term clause was never officially ratified by the hospital board and will be removed at the hospitals next board meeting at 5 p.m. Wednesday.

What does remain in force from the second amendment is a seven-year contract beginning from the original date of agreement on May 7, 2001. Rhame said the perpetual-renewal clause would only have taken effect after the seven years had been completed by Winger. Such rolling term agreements provide a stability factor to institutions like the hospital, Rhame said. * * *

The contract allows for a new, full-sized leased automobile for Winger every two years. It also includes gasoline reimbursement, country club memberships, six weeks of annual and accruable paid vacation, and generous pension and severance provisions. Parks said that anything more than a five-year contract is out of the ordinary. But Rhame defended the contract with Winger, and said contracts are usually in a constant state of renegotiation. He said Wingers pay a basic total of more than $551,000 in 2003 is comparable to Chicagoland pay for hospital CEOs.

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Law

Indiana Law - IU settles with Ron Felling

A brief AP story today, which is appearing in dozens of papers nationwide, reports:

BLOOMINGTON, Ind. -- Indiana University has agreed to pay $35,000 to former basketball assistant Ron Felling, who was fired by then-coach Bob Knight after a post-game confrontation in 1999.

Felling also sued Knight, who settled with him two years ago by paying him $25,000 and admitting that he had shoved Felling in anger after he overheard a telephone conversation in which Felling criticized his coaching and behavior.

This is the part I found notable:
Felling will keep $23,040 from the settlement for lost wages and compensatory damages. The rest will be divided between two Indianapolis law firms that represented him. * * * In addition to the $35,000, Frapwell said, the Felling case has cost the university $107,470 in attorney fees and costs.

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Law

Indiana Law - Another political sign story

Yesterday it was Noblesville (scroll down two entries), today it is Lake County. This story today in the Gary Post Tribune reports:

Although there is an ordinance in Lake County controlling the use of election signs, County Attorney John Dull said he's not going to enforce it because its unconstitutional.

The question came up when Crown Point GOP Chairman John Moos questioned Thursday the election signs placed along Main Street in Crown Point in a small unincorporated area promoting the re-election of Lake County Commissioner Gerry Scheub, D-Schererville, and state Rep. Bob Kuzman, D-Crown Point.

Dull said he made the decision not to enforce the law when Joe Hero, a Republican candidate for 3rd District commissioner, challenged the constitutionality of the law at a commissioners' meeting earlier this year. Dull said he agreed with him and told him to go ahead and put his signs up earlier than mandated in the ordinance. * * *

Not only the county but also cities and towns have their own yard sign ordinances. "They're going to have to deal with it," Dull said.

Scheub said his signs are in an unincorporated area and therefore come under the county ordinance Dull is not going to enforce.

"The law is tough to enforce," Dull said. "I don't think the citizens of Lake County want to pay me to go through and challenge that and run it up to the Supreme Court and down."

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Law

Environment - Odor, odor everywhere

"Portage plant blamed for odor" is the headline to this story today in the Gary Post Tribune that reports:

OGDEN DUNES A strong odor that led to a complaint and investigation by the county and state has been traced to Precoat Metals, a state environmental agency said Thursday.

Amy Hartsock, a spokeswoman for the Indiana Department of Environmental Management, said IDEM and Porter County Hazmat inspectors responded to an odor complaint Wednesday night. Hartsock said they determined the smell was coming from the company.

We want to investigate whether Precoats equipment is operating as efficiently as it should, Hartsock said Thursday afternoon. We have asked for the companys stack-testing data, which will tell us whether the company is meeting the requirements. * * *

Ogden Dunes resident Mark Coleman, a member of the towns environmental committee, said he had called and complained to IDEM about the smell for the past three days. Though emission odors are not unusual to that area, Coleman said the smell has been particularly bad after 5 p.m. each day.

Hartsock said Precoat Metals, located at 6300 U.S. 12 in Portage, was applying a coating with pollution controls to metal Wednesday night. Hartsock said that after IDEM reviews the stack-testing data, it will determine if there is a ongoing connection between the areas odors and the companys stacks.

In answer to continuing odor issues in New Castle is this story published yesterday in the Muncie Star-Press with the memorable headline: "'Anyone with half a brain' knows source of odor, neighbor says." Some quotes:
NEW CASTLE - Melissa Raines is amazed that Metaldyne continues to deny that its factory emits any odor.

Her dad worked at the factory, formerly owned by DaimlerChrysler, for 36 years, retiring a year ago in July. The factory makes automobile chassis components.

"There is obviously an odor, and my dad smelled like that every day he came home from Chrysler, so they can't say it isn't coming from them," said Raines, who lives three blocks north of the factory. "For 27 years of my life, he smelled like that."

Raines said the odor from the factory enters her house. "It's very odd - musty smelling, almost like a rotten chemical," she said in an interview. "It's very nasty smelling. Sometimes it's horrendous, and other times it's faint. Anybody with half a brain knows it's coming from there." * * *

When metal-working fluids smell bad, like a "locker room," it usually means there is biological growth, which should be treated with biocide, according to the federal Occupational Safety and Health Administration.

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Environmental Issues

Indiana Law - Trump casino contract at issue?

"Bailout for Trump collapses: Bankruptcy looks likely for company developing second Indiana casino," reads the headline to this AP story today in the Indianapolis Star. The lead and some further quotes:

ATLANTIC CITY, N.J. -- Donald J. Trump may have a new project for his apprentices -- helping him figure out how to take his troubled casino company private after a proposed bailout fell through. * * *

In Indiana, Trump's company has a riverboat casino in Gary and a license to create a $108 million casino complex in French Lick. Robert Pickus, executive vice president of the Trump casino company, has said that the French Lick proposal relied on the success of refinancing. * * *

One analyst said it is unlikely Trump could raise the money to take the company private. Without a cash infusion, bankruptcy appears to be his only option, according to casino industry analyst Jane Pedreira of Lehman Brothers.

"He's in a tough spot right now," said Pedreira. "If he has to file, his name will be in the press for two years or however long it takes to get through bankruptcy."

Lesley Stedman Weidenbener reports today in the Louisville Courier Journal, in a story headlined "Trump financial woes unsettle casino plans":
INDIANAPOLIS Indiana regulators have "concerns" about whether Trump Hotels & Casino Resorts Inc. can develop a casino in French Lick after a proposed bailout of the troubled company fell through, a key official said yesterday.

But Glenn Lawrence, executive director of the Indiana Gaming Commission, said it's too soon to discuss choosing another company.

"I don't want to speculate," Lawrence said. "When they (Trump) were chosen, we knew they had those financial difficulties, and they still have cash to operate."

But Lawrence told Trump executives to appear before the gaming commission Oct. 1 in Indianapolis to answer questions about the company's financing, as well as the French Lick project and its casino riverboat in Gary.

"We do have some concerns," Lawrence said, adding that commission members need more information to determine "if they want to proceed" with Trump as the casino operator.

Although the commission voted in July to give the contract to Trump, it remains unsigned. Commission staff and Trump executives have been negotiating its details, Lawrence said.

That process was expected to be completed in October. But state law gives the commission the option of choosing another developer if it can't come to terms with Trump.

[More] I just opened my NY Times and found this story, headlined "Now, Reality for Trump Looks More Like 'Survivor.'" A quote:
"I think this could get ugly because we're about to see a very high-level game of chicken," said Dennis J. Drebsky, a New York bankruptcy lawyer who has been involved in the restructuring of other Atlantic City casinos. "Your guess is as good as mine as to what happens next."

Posted by Marcia Oddi on Friday, September 24, 2004
Posted to Indiana Law

Thursday, September 23, 2004

Indiana Law - Noblesville suspends law limiting political signs

An Indianapolis Star story posted this afternoon reports:

Under pressure from the Indiana Civil Liberties Union, Noblesville has suspended an ordinance that limits the display of political signs. The ICLU filed a lawsuit in U.S. District Court earlier this week on behalf of Joseph Santos, who claimed his First Amendment rights had been violated after the city ordered him to remove a pair of political signs from his yard. Noblesville's sign ordinance prohibits residents from displaying political signs more than 30 days prior to an election. * * *

"We're very happy about the city's decision, since it clearly appeared to be an unconstitutional ordinance," said Ken Falk, an attorney with the ICLU. "There are numerous cases around the country striking down similar ordinances."

Posted by Marcia Oddi on Thursday, September 23, 2004
Posted to Indiana Law

Law - Florida Supreme Court rejects "Terri's Law"

"Florida Court Rejects Law Keeping Comatose Woman Alive" is the headline to this story posted by the NY Times. Some quotes:

Fourteen years after Theresa Schiavo slipped into a vegetative state, Florida's highest court said today that Gov. Jeb Bush violated the constitutional tenet of separation of powers when he signed a law to keep Ms. Schiavo alive against her husband's wishes.

The high court said that a law passed by the Legislature in October 2003, referred to as "Terri's Law," granted the governor unconstitutional power to overturn several court decisions that granted Michael Schiavo the authority to make a final decision on his wife's fate. * * *

In the end, the justices went on, "this case is not about the aspirations that loving parents have for their children."

"This case is about maintaining the integrity of a constitutional system of government with three independent and co-equal branches, none of which can either encroach upon the powers of another branch or improperly delegate its own responsibilities," they wrote. * * *

"If the Legislature with the assent of the governor can do what was attempted here, the judicial branch would be subordinated to the final directive of the other branches," the court wrote. "Vested rights could be stripped away based on popular clamor."

Here is the AP report published by the Washington Post, including links to the opinion in Bush v. Schiavo, and other documents.

[Update 9/24/04] The Washington Post reports today:

MIAMI, Sept. 23 -- Florida's highest court ruled unanimously Thursday that Gov. Jeb Bush (R) violated a "cornerstone of American democracy" when he overrode a court decision and ordered doctors to resume tube-feeding a severely brain-damaged woman.

Chief Justice Barbara J. Pariente of the Florida Supreme Court called Bush's actions in the case of Terri Schiavo "an encroachment on the judicial branch" that undercut the constitutionally protected separation of powers among the executive, legislative and judicial branches. * * *

Pariente wrote that allowing Bush's executive order to stand would mean that "no court judgment could ever be considered truly final and no constitutional right truly secure."

"Vested rights could be stripped away based on popular clamor," the opinion said. "The essential core of what the Founding Fathers sought to change from their experience with English rule would be lost."

"Our hearts" comprehend the pain of Schiavo's family, Pariente wrote. "But our hearts are not the law."

Posted by Marcia Oddi on Thursday, September 23, 2004
Posted to General Law Related

Indiana Decisions - Two today from the Court of Appeals

Butler University v. Estate of George C. Verdak (9/23/04 IndCtApp) [Estates & Trusts]
Mathias, Judge

Liene Dindonis filed a petition to reopen the estate of George Verdak (the estate) in Marion Superior Court, Probate Division, which alleged that other property of the estate had been discovered. The probate court granted the petition and issued an order reopening the estate. Shortly thereafter, Butler University (Butler) filed objections to Dindoniss petition. After a hearing was held on Butlers objections, the probate court issued an order overruling Butlers objections. Butler has filed this interlocutory appeal arguing that the probate court abused its discretion when it reopened the estate because Dindonis failed to prove that the property was subsequently discovered property of the estate. Dindonis cross-appeals and argues that Butler did not have standing to object and its appeal is untimely. * * *

Accordingly, we conclude that the probate court did not abuse its discretion when it granted Dindoniss petition to reopen the Verdak Estate under Indiana Code section 29-1-7.5-8 and overruled Butlers objections. Moreover, we observe that our holding is consistent with our view that a prompt and orderly determination of the ownership of the Ballet Russe property at issue is of primary importance considering the circumstances presented. Once title is properly determined in probate court, claims in courts with ancillary jurisdiction will be resolved as well.

Conclusion. Butler is an interested party and had standing to object to Dindoniss petition to reopen the Verdak Estate. Moreover, Butlers appeal was timely. Finally, the probate court did not abuse its discretion when it granted Dindoniss petition to reopen the Verdak Estate and overruled Butlers objections. Affirmed.
BARNES, J., and CRONE, J., concur.

David A. Tebbe v. Conni M. Tebbe (9/23/04 IndCtApp) [Family Law]
Mathias, Judge
The marriage of David Tebbe (David) and Conni Tebbe (Conni) was dissolved in Allen Superior Court. David appeals, raising the following restated issues: [1] Whether the pass-through income of an S-corporation that does not increase a minority shareholders actual income should be included in the calculation of child support obligations; and, [2 Whether the trial courts valuation of the Tebbe marital property was clearly erroneous.

Concluding the trial courts valuation was proper but pass-through income should not be included when calculating Davids child support obligations, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion. * * *

Conclusion. Davids pass-through income from TBI should not have been included in the calculation of his child support obligations. However, the valuation of Davids interest in TBI and the GMC van is supported by the record. Affirmed in part, reversed in part, and remanded.
DARDEN, J., and FRIEDLANDER, J., concur.

Posted by Marcia Oddi on Thursday, September 23, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts one (so far) today

Meyer Medical Physicians Group v. Health Care Services Corp. (ND Ill.)

Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. After Meyer Medical Physicians Group, Ltd. (Meyer) filed a voluntary petition for relief under Chapter 11, the bankruptcy court granted a motion by a creditor, Health Care Service Corporation d/b/a HMO Illinois (HCSC), to effectuate a setoff of approximately $1.3 million against amounts owed by Meyer. The district court affirmed the bankruptcy courts discretionary decision, and Meyer appeals. * * *

Because we conclude that the district court properly affirmed the bankruptcy courts decision to allow HCSC to exercise its right of setoff under 553(a) of the Bankruptcy Code, we decline to reach the issue of recoupment. AFFIRMED.

Posted by Marcia Oddi on Thursday, September 23, 2004
Posted to Indiana Decisions

Environment - Cormorant comeback: Too much of a good thing?

"Protected bird makes a comeback: But some see cormorant as more of a nuisance," is the headline to this story today in the Evansville CourierPress. Some quotes:

When Mark Pochon arrived at the Hovey Lake Fish and Wildlife Area 18 years ago as property manager, the only double-crested cormorants were the ones pictured in the refuge office's bird books.

The hook-billed predatory waterfowl had once been prevalent throughout North America, but like the bald eagle, the bird was nearly decimated by the use of the pesticide DDT. By the early 1970s, it was considered extinct in Indiana and endangered in most other states.

Environmentalists came to its rescue, and thanks to a combination of events, including an amendment to the federal 1918 Migratory Bird Treaty Act, the double-crested cormorant won the protection of the federal government. Now, Pochon arrives in the morning at Hovey Lake in Posey County to find between 800 to 1,000 of the slender-beaked black birds submerged in the water "like submarines" with their snake-like long necks sticking up like periscopes. By mid-October, he expects another 4,000 to 5,000 to arrive at Hovey Lake during their annual migratory stopover from the North. "They've made a fantastic comeback," said Pochon. At an estimated 2 million and growing at a rate of almost 8 percent a year, there's little doubt they've made a comeback. Some say they've come back with a vengeance. * * *

Lewis and other wildlife officials fear the double-crested cormorant will soon join the ranks of other once-precious wildlife that are now perceived by the public as pests. On that list is the Canadian goose and the white tail deer, two animals that had come close to extinction in North America, only to be brought back with such vigor that they now are seen as a nuisance by some. Geese are a subject of aggravation for their prolific excrement and the deer for eating shrubs in suburbia and darting into highway traffic during mating season. Especially vulnerable, Lewis said, are the double-crested cormorants because they're, well, ugly.

The cormorant story caught my attention because of this headline last weekend in the Chicago Tribune: "Goose got the blame, but it was rare bird plane hit." The Trib story reported:
The bird may have looked like a goose to the pilots, but what flew into a jet engine over Chicago was a double-crested cormorant, a bird rarely involved in midair collisions with airplanes.

Until 1994, cormorants, found from Alaska to the Bahamas, were federally listed as an endangered species. Their numbers have rebounded--so much so, some fishermen now consider them a nuisance.

And perhaps pilots should, too.

At a briefing Friday by a wildlife expert, American Airlines officials were told cormorants have a particularly dense body with the potential to do as much damage to an airline engine as a Canada goose, which can be more than triple the weight of a 5-pound cormorant. * * *

"Cormorants are flocking birds and usually the planes hit more than one," Dolbeer said. "Thank God both engines did not ingest birds in the Chicago incident."

Collisions reported to the FAA between aircraft and cormorants are less common than encounters with other birds. Only 34 incidents have been reported since 1990 nationwide and none occurred in Illinois.

By comparison, 190 American kestrels, 151 gulls and 72 Canada geese have been struck by planes in Illinois since 1994, FAA records show.

Posted by Marcia Oddi on Thursday, September 23, 2004
Posted to Environmental Issues

Wednesday, September 22, 2004

Indiana Decisions - Ft. Wayne paper reports today in Airport Authority emergency transfer

"Court to review legality lawsuit: Group says Airport Authority didnt have right to consider the closing of Smith Field" is the headline of a Fort Wayne News-Sentinel story today. Some quotes:

The Indiana Supreme Court has agreed to consider a lawsuit challenging the constitutionality of the agency that has governed Fort Waynes two airports since 1985.

A group calling itself the SMDfund sued the Fort Wayne-Allen County Airport Authority early last year, claiming the board could not close Smith Field as it intended to do at the time because the authority did not legally exist. SMD is the federal designation for Smith Field.

The lawsuit ultimately failed in Allen Circuit Court. But the high courts willingness to hear the case could have broader significance, because the lawsuit was specifically based on the courts 2002 ruling that called into question the legality of laws passed by the Indiana General Assembly intended to benefit only certain parts of the state. Before the legislature created the Airport Authority, Fort Wayne had operated Smith Field and Fort Wayne International Airport, called Baer Field at the time.

The Indiana Law Blog reported in detail yesterday on the Supreme Court's granting of an emergency transfer. Scroll down or click here to access yesterday's entry.

Posted by Marcia Oddi on Wednesday, September 22, 2004
Posted to Indiana Decisions

Law - 7th Circuit appears to call a halt to sentencing until Supreme Court acts in Blakely/Booker

In a decision just issued today, USA v. Malik, Judge Easterbook concludes:

Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision. VACATED AND REMANDED
For more, see the earlier entry below, summarizing today's 7th Circuit decisions.

Posted by Marcia Oddi on Wednesday, September 22, 2004
Posted to General Law Related

Indiana Decisions - Three Court of Appeals, one Tax Court decision today

Town of New Ross v. Scott Ferritti, et al. (9/22/04 IndCtApp) [Contract]
Vaidik, Judge

The Town of New Ross appeals the $57,393.57 judgment that the trial court entered in favor of Scott Ferretti d/b/a Ferretti Construction based upon the theories of breach of contract and unjust enrichment. Ferretti cross-appeals, contending that the trial court should have awarded him pre-judgment interest. Because the public work contract between the parties included the costs of implementing a storm water drain plan, we conclude that the Town of New Ross must pay Ferretti for those costs and pre-judgment interest for those damages. In addition, because of the dearth of evidence regarding whether any of the changes Ferretti made to the project were mandated by state law, we remand for such a determination. In the event that any of the changes were mandated by state law, we conclude that Ferretti must be compensated for them as well. However, we conclude that the trial court erred in awarding damages to Ferretti for the remaining changes he made to the project that were not memorialized in writing because to do so would violate public policy. We therefore affirm in part, reverse in part, and remand in part. * * *
SULLIVAN, J., and MAY, J., concur.
The Housing Authority of South Bend v. Ricky Grady (9/22/04 IndCtApp) [Negligence; Federal Preemption]
Hoffman, Senior Judge
Defendant-Appellant The Housing Authority of the City of South Bend (Housing Authority) appeals the determination of the trial court denying its motion for summary judgment. We reverse and remand.

The Housing Authority presents three issues with regard to the trial courts denial of its motion for summary judgment. Restated, these issues are as follows: [1] Whether federal law preempts Gradys state law claim of negligence. [2] Whether the Housing Authority owed a common law duty to Grady. [3] Whether the Housing Authority assumed a duty of care with regard to Grady.

Robert Clark owns a residence in South Bend, Indiana, which he leased to LaShonda James. James received tenant-based assistance from the Housing Authority to assist her in paying rent for the residence. Plaintiff-Appellee Ricky Grady was living at the residence with James, and on March 24, 2002, Grady fell through an upstairs floor of the residence and sustained injuries. * * *

Based upon the foregoing discussion and authorities, we conclude that the trial court erred by denying the Housing Authoritys motion for summary judgment because federal law preempts state law with regard to this negligence action, and the Housing Authority neither owed a common law duty to Grady, nor assumed any duty of care with regard to Grady. Therefore, the trial court is ordered to enter summary judgment in favor of the Housing Authority. Reversed and remanded with instructions.
NAJAM, J., and BAILEY, J., concur.

Dawn R. Carter-McMahon v. Danny W. McMahon (9/22/04 IndCtApp) [Family Law; Attorney Fees; Procedure]
Crone, Judge
Issues. Wife raises one issue: [1.] Whether the trial court erred in dismissing her motion to correct error, which was filed thirty-three days after entry of an order awarding attorneys fees to Husband.

Husband challenges Wifes issue and raises the following additional, related issues: [2] Whether the trial court erred by not granting Husbands request for attorneys fees incurred in the defense of an untimely filed motion to correct error; and [3] Whether Wifes continuing violations of the Indiana Rules of Appellate Procedure coupled with her frivolous arguments warrant the imposition of damages pursuant to Indiana Appellate Rule 66(E).

[Re her argument that her filing 33 days after the trial court's entry should not be dismissed, Wife] notes the marked judicial preference for deciding disputes on their merits and for giving parties their day in court, especially in cases involving material issues of fact, substantial amounts of money, or weighty policy determinations. Wife asserts that Trial Rule 6(E) applies to extend by three days the time-period during which she could file her motion to correct error. For support, she cites both Baker v. Sihsmann, 161 Ind. App. 260, 315 N.E.2d 386 (1974) and Coleman v. Charles Court, 797 N.E.2d 775 (Ind. Ct. App. 2003). In addition, she notes, Trial Rule 59 does not state that Trial Rule 6(E) does not apply. In the alternative, Wife cites Trial Rule 72(D) and (E), contends that there was no record of mailing of the order of attorney fees in the Chronological Case Summary, and argues that the trial court has discretion to grant an extension of time which would clearly encompass October 6, 2003[.] * * *

As we noted previously in this opinion, in asserting that Trial Rule 6(E) applied to extend the thirty-day period of Trial Rule 59(C), Wife raised an issue of first impression. Although we hold against her today, Wife did not put forth contentions and arguments utterly devoid of all plausibility. Therefore, an award of Appellate Rule 66(E) damages and fees against her would be inappropriate. * * * Affirmed.
RILEY, J., and VAIDIK, J., concur.

Norrell Services, Inc. v. Indiana Department of State Revenue (9/21/04 IndTaxCt) [GI Tax]
Fisher, Judge
Norrell Services, Inc. (Norrell) appeals the Indiana Department of State Revenues (Department) imposition of Indiana gross income tax on franchise fees Norrell received during the years ending November 1, 1992, October 31, 1993, and October 31, 1994 (the years at issue). The matter is currently before the Court on the parties cross-motions for summary judgment. * * *

It is clear to the Court that the position of the Department in its 1998 LOF [Letter of Findings] is different than the position it took in its 1984 LOF. Specifically, in its 1998 LOF, the Department concluded that the payroll portion of the franchise fees was taxable because Norrell was acting as an agent of its franchisees. In contrast, the 1984 LOF determined that an agency relationship did not exist between Norrell and its franchisees. Similarly, the Department determined in its 1998 LOF that the royalty portion of the franchise fee was taxable because it was an intangible with a business situs in Indiana (i.e., the
franchisees). Yet, in its 1984 LOF, the Department did not attribute the franchisees activities to Norrell when it determined that Norrell did not have sufficient local activities to support the imposition of the gross income tax.
Absent a modification in the Agreements, or a change in the governing regulations, the Department improperly altered its 1984 LOF interpretation as to the imposition of gross income tax against Norrell. Accordingly, the Court grants summary judgment in favor of Norrell and against the Department.

CONCLUSION. For the above stated reasons, the Court GRANTS the Petitioners motion for summary judgment and DENIES the Departments motion for summary judgment.

Posted by Marcia Oddi on Wednesday, September 22, 2004
Posted to Indiana Decisions

Indiana Decisions - Five from 7th Circuit

Ralph Nader v. John Keith, et al. (ND Ill.)Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Ralph Nader, joined by his campaign committee and two registered Illinois voters who support his candidacy, brought this suit to require the State of Illinois to place his name on the ballot for the forthcoming Presidential election. He appeals to us from the district courts denial of a preliminary injunction that would order the state to do that. We have expedited the parties briefing and our consideration of the appeal because of the short time remaining to the election. * * *

By waiting as long as he did to sue, and despite the strenuous efforts by the district court and this court to expedite the litigation, Nader created a situation in which any remedial order would throw the states preparations for the election into turmoil. * * * At argument Naders lawyer offered no reason for the delay in filing the suit. * * *

So, all things considered, we cannot say that the district judge abused his discretion in refusing to issue a preliminary injunction. AFFIRMED.Lin, Xia J. v. Ahscroft, John [Petition to Review an Order of the Board of Immigration Appeals]

Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Xia J. Lin claims that the Chinese government forced her to abort two pregnancies under its coercive family planning policies and will subject her to involuntary sterilization if she is forced to return to China. Lin filed for asylum, withholding of removal, and protection under the United Nations Convention against Torture. The Immigration Judge (IJ) denied all relief because he concluded that Lin was not credible, a ruling the Board of Immigration Appeals (BIA) summarily affirmed. We vacate the removal order and remand Lins case for rehearing because the IJs adverse credibility determination was not supported by substantial evidence. * * *

We are not holding here that every woman of childbearing age in China will automatically be entitled to asylum in this country, because they are all potentially subject to the coercive family planning policies. We find only that in the particular circumstances Lin has shown, where she testified that she endured two forced abortions and fears forced sterilization, where her testimony is consistent with the State Department Profile, and where she has supported her claim with relevant documentation, Lin as an individual may be entitled to this relief. We therefore VACATE the removal order and REMAND for further proceedings consistent with this opinion. We recognize that the BIA exercises discretion in selecting a presiding judge. However, we urge the BIA to assign a different judge to Lins case on remand.

EVANS, Circuit Judge, concurring in part, dissenting in part. The majority opinion is beautifully written and quite persuasive. Yet, despite the fact that it concludes by saying we are not holding here that every woman of childbearing age in China will automatically be entitled to asylum in this country, because they are all potentially subject to the coercive family planning policies, I think, as a practical matter, we are either doing, or coming close to doing, just that. How is Lins case going to be different from that of any other Chinese woman who takes issue with Chinas policy and arrives here saying she does not want to submit to its population control policy? * * *

Finally, although I join Judge Woods opinion, I do disagree on one pointI do not join the suggestion that the BIA should, upon remand, assign this case to a different immigration judge. We should not be making gratuitous suggestions of that sort.

Hoagland, Don v. Sandberg Phoenix & Von Gontard, PC (SD Ill.)
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. Donald Hoagland, as receiver for Midwest Transit, filed suit in an Illinois state court against the Sandberg law firm, which in the course of representing Midwest had, Hoagland charged, wronged its client. The law firm removed the suit to federal district court on the basis of diversity of citizenship. The district court entered judgment for Sandberg after determining that Hoagland had not proved the elements of legal malpractice, and Hoagland appeals. * * *

The claim, in substance and without regard to how it might be characterized, is that the Sandberg law firm represented the adversariesa corporation (Midwest) and its swindling presidentin a derivative action and used its dual representation to prevent the corporation from recovering assets of which the president had wrongfully deprived the corporation; that the law firm had wrongfully accepted payment of its fees from the corporation (the client whose interests the firm had sacrificed); and that it should therefore be required to rebate (disgorge) the fees to Hoagland for the benefit of the corporation. An attorneys throwing one client to the wolves to save the other is malpractice, whatever the plaintiff chooses to call it. He cannot be permitted, by recharacterizing the claimwhether by calling the conflict of interest a breach of fiduciary obligation or by contending that his contract with the law firm contained an implied promise not to commit such conflictsto get around the requirement of presenting expert testimony. That is the kind of formalist move that courts rightly reject. Illinois courts hold that when a breach of fiduciary duty claim is based on the same operative facts as a legal malpractice claim, and results in the same injury, the later claim should be dismissed as duplicative.

The fact that restitution was sought instead of conventional damages also does not alter the nature of the suit. Restitution is a remedy, at least when sought as here as reparations for a tort. Asking for restitution doesnt change the cause of action. AFFIRMED [cites deleted]

EASTERBROOK, Circuit Judge, concurring. A curious consequence of todays holding is that states define the meaning of a federal statutea jurisdictional statute, no less, one designed to draw a boundary between state and federal domains. My colleagues conclude that for purposes of 28 U.S.C. 1332(a) a corporation is any entity on which a state bestows that label. Thus if a state renames a limited liability company as a limited liability corporation, it becomes a citizen with its own jurisdictional attributes, and the citizenship of its members no longer matters. So too if a state renames a limited partnership a limited partnership corporation, or a joint stock company as a joint stock corporation. * * *

Indeed, no matter what feature one names as the potential dividing line, it is possible to find a decision of the Supreme Court on the other side. That makes life hard for an intermediate appellate court. We must choose between letting nomenclature control and trying vainly to identify which legal characteristics distinguish corporations from other entities. The former approach is wrong in principle, the latter untenable in practice.

Forced to choose between these options, I join the majority in thinking that it is better to let names control than to set off on a snipe hunt. * * *

USA v. Malik, David (ND Ill.)
Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * Because Malik must be resentenced, the district court will need to take account of United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, No. 04-104 (U.S. Aug. 2, 2004). Malik failed to make a Booker-like argument in the district court, but he is free to develop this contention at a new sentencing after Booker. Defendants may raise after a remand new arguments based on statutes or opinions that post-date the original sentencing and are not logically foreclosed by the appellate decision. [cites omitted] Appellate mandates may limit the issues that are open on remand, but we impose no such restrictions; Malik should be resentenced from scratch. Forfeiture is significant only to the extent that, by not filing a cross-appeal, Malik disabled himself from receiving a sentence lower than 30 months.

Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision. VACATED AND REMANDED

[Note: May the last paragraph, above, be read to mean that the 7th Circuit is urging a halt to all sentencing until after the Supreme Court acts on Blakely/Booker?]

Bricklayers IL 21 v. Banner Restoration (ND Ill.)

Before BAUER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs brought this action to compel an audit of Banner Restoration, Incorporated (Banner) to determine ERISA compliance. Banner filed a counterclaim, seeking a refund of prior payments. After a bench trial, the district court ordered an audit and denied Banners counterclaim. Banner timely appealed. For the following reasons, we affirm the judgment of the district court.

Posted by Marcia Oddi on Wednesday, September 22, 2004
Posted to Indiana Decisions

Indiana Decisions - More on yesterday's Trump Indiana decision

Lesley Stedman Weidenbener of the Louisville Courier Journal has this story today on yesterday's Indiana Supreme Court ruling in the case of Indiana Dept. of Revenue v. Trump Indiana, Inc. (9/21/04 IndSCt) [scroll down four to access the entry]. Some quotes:

INDIANAPOLIS The Indiana Supreme Court ruled yesterday that casinos must pay a "use tax" when they buy their gambling boats and bring them into Indiana. The decision could cost Caesars Indiana millions of dollars. The decision also means that Trump Casino in Gary and Grand Victoria Casino in Rising Sun will not get refunds on taxes they've already paid. * * *

Caesars originally contested a $3.4million tax bill issued by the Indiana Department of Revenue for use taxes on its Glory of Rome boat, located in Harrison County, and equipment. Use taxes are similar to sales taxes, although they apply to items purchased out of state and brought into Indiana. Caesars and other casinos claimed the boats and equipment were subject to property taxes and therefore not sales or use taxes.

[The Tax Court agreed last year, saying that] because the General Assembly had declared the boats "real property" similar to homes for taxation, the use tax did not apply. Yesterday, the Supreme Court reversed that decision, saying use taxes applied to the purchase of the boats as well as the equipment. * * * Only when the boats are opened as casinos are they reclassified and subject just to property taxes, the Supreme Court said. * * *

The ruling did not directly involve Caesars. Instead, the decision came in a case in which Trump was seeking a refund for the use tax it already had paid. But the court did not limit its ruling to Trump. Instead, it made a general decision that the boats are subject to the tax.

Posted by Marcia Oddi on Wednesday, September 22, 2004
Posted to Indiana Decisions

Not law but interesting - Vanderburgh County assessor's site to feature images of property

According to a story in the Evansville CourierPress today:

Ground-level photographs of properties in Vanderburgh County are being added to the county assessor's Web site. So far, photographs of about 13,000 structures primarily in Pigeon, Knight and Center townships are available at the Web site (www.assessor.evansville.net). * * *

The photographs will be helpful for appraisers, real estate agencies and people shopping for homes, according to [Assessor Cheryl Musgrave ]. She said the goal of her Web site is to provide "everything you need when you're trying to learn about a piece of property," and a photograph "is worth 1,000 words." The feature was created at no additional cost to the county, said Musgrave.

To use the feature, log on to the Web site and click on "search our databases" on the left-hand side. Choose "assessment database with GIS mapping," then click on "property search." Type in the address of the property and then "search." Then click on "view map" on the right side of the screen under search results and then on the link below the map and next to the owner's name. If no photograph is available, none will appear.

Musgrave said it will be up to township assessors on how quickly more photographs are added. "Each township proceeds along at their own discretion," Musgrave said.

Posted by Marcia Oddi on Wednesday, September 22, 2004
Posted to General News

Indiana Courts - Five nominees for St. Joseph Superior Court

This information has just been released via the Indiana Supreme Court:

The St. Joseph Superior Court Judicial Nominating Commission today submitted to Governor Joseph Kernan its list of five candidates to fill a vacancy on the St. Joseph Superior Court, Indiana Supreme Court Justice Frank Sullivan, Jr. announced. The vacancy will occur on Janu-ary 3, 2005 when the Honorable William C. Whitman retires. From the list, Governor Kernan will appoint Judge Whitmans successor.

The nominees are:

  • Larry Leonard Ambler, 58, a lawyer in private practice.
  • Hon. David Charles Chapleau, 51, a Magistrate of the St. Joseph Circuit Court.
  • Mark A. Kopinski, 46, a sole practitioner and public defender.
  • Hon. Richard Leo McCormick, 36, a Magistrate of the St. Joseph Superior Court.
  • Sen. Joseph C. Zakas, 53, an Indiana State Senator and lawyer with the firm Thorne Grodnik, LLP.
Under state law, the Commission must submit to the governor a list of five candidates with written evaluations of the qualifications of each candidate. Following his receipt today of the list of nominees, Governor Kernan has sixty days in which to make his appointment to the St. Jospeh Superior Court. In the event he does not do so, the Chief Justice of the Indiana Supreme Court shall make the appointment from the list of nominees. Indiana law provides that any ap-plicant for the vacancy whose name was not submitted to the Governor shall have access to any evaluation of him made by the Commission and the right to make the evaluation public.

Posted by Marcia Oddi on Wednesday, September 22, 2004
Posted to Indiana Courts

Tuesday, September 21, 2004

Indiana Decisions - Supreme Court Grants Emergency Transfer

In an order issued September 13, the Indiana Supreme Court assumed jurisdiction over the case of SMDfund, Inc. et al. v. Fort Wayne-Allen County County Airport Authority, pursuant to the an infrequently granted Appellate Rule 56(A) request:

Rule 56. Requests to Transfer to the Supreme Court
A. Motion Before Consideration by the Court of Appeals. In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination. If the Supreme Court grants the motion, it will transfer the case to the Supreme Court, where the case shall proceed as if it had been originally filed there. If a filing fee has already been paid in the Court of Appeals, no additional filing fee is required.
[emphasis added]
A copy of Chief Justice Randall T. Shepard's 9/13/04 order may be accessed here*. A copy of the case docket, as of today, is available here. [Note: Scanned documents, may be slow to load.]

Trial Court Decision. I have been able to obtain a copy of the trial court decision of Allen County Circuit Court Judge Thomas J. Felts.*

SMDfund, Inc. et al. v. Fort Wayne-Allen County County Airport Authority (6/28/04 AllenCirCt) [Note - scanned, may be slow loading]
Judge Felts

[Issue] Whether the doctrine of the statute of limitations precludes citizens from contesting the constitutionality of a statute that provides a basis for the formation of an airport authority 17 years after the statute was enacted * * * [Note: The limitation on actions at play here is IC 34-11-1-2.]

In compliance with the 1985 amendment made by the General Assembly and under the direction of the specifications stated in the amended statute, a joint airport authority was created beween the City of Fort Wayne and Allen County. To this day, Allen County is the only county in Indiana that meets the requirements of the specific population bracket stated in the statute [IC 8-22-3-1.1]. * * *

On February 12, 2003, SMDfund, Inc., Joseph Tocci and Scoa W. Noble filed a complaint with the Allen Circuit Court. This complaint states that the Fort Wayne-Allen County Airport Authority does not possess any legal control over Smith Field and the statute creating the Authority is unconstitutional as "special legislation". * * * On October 10, 2003 the Plaintiffs filed an amended complaint seeking a declaration that [IC 8-22-3-1.1] is unconstitutional special legislation and that the Authority has no legal status pursuant to the statute. * * *

The purpose of the statute of limitations is to establish a time limit for suing in a civil case based on the date when the event causing the injury transpired.

In the Authority's motion for summary judgment, the party's reasoning for why the statute of limitations precludes Plaintiffs' claims is based upon many factors. In its motion for summary judgment, the Authority recognizes the complexity of applying the statute of limitations to an issue challenging the constitutionality of a statute. In the past, courts have differentiated between facial challenges and as applied challenges and have implemented this limitation analysis to statutes. Kuhnle Brothers v. County of Geauga (6th Cir. 1997); National Advertising C. v. City of Raleigh (4th Cir. 1991). A facial challenge is a claim that the "mere enactment" of a statute is unconstitutional. National Advertising. An as-applied challenge focuses on the effect of a statute's application to specific property and individuals. Id

Under an as-applied challenge, the statute of limitations does not commence until the unconstitutional act ceased to exist. This type of constitutional violation is often referred to as a "continuing violation". Kuhnle Bros. In a facial challenge, the statute of limitations begins to run on the date the statute was enacted. De Anza Properties (9Ih Cir. 1991). Although it is ultimately the Court's discretion to determine whether a constitutional violation is a continuing violation. Plaintiffs' complaint seems to constitute a facial challenge. ***

The Plaintiffs argue that the statute of limitations does not apply to this lawsuit because the [airport] statute should be considered special legislation therefore allowing Plaintiffs to bring a claim at anytime. The Plaintiffs base this reasoning from a case in which property owners filed a remonstrance and presented a petition in opposition to annexation by the defendant city. Municipal City of South Bend v. Kimsey. 78 1 N.E.2d 683 (Ind. 2003). In order for Plaintiffs' argument to proceed, it must be determined whether the statute creating the Authority is unconstitutional on the premise of special legislation. * * *

[U]nlike the statute being challenged in Kimsey, there is no evidence that the population category contained in [IC 8-22-3-1.1] is designed to operate upon or benefit only particular municipalities and thus may not constitute special legislation. * * *

Plaintiffs' claim was filed more than 17 years after the enactment of the challenged statute. Because the challenged statute may be considered constitutional and Plaintiffs filed a facial challenge, the general statute of limitations of ten years bars Plaintiffs from filing such a claim. In addition, Plaintiffs failed to provide evidence that a genuine issue of material fact existed regarding the time limit for challenging whether a statute was unconstitutional providing grounds for the Authority's motion for summary judgment.

Some thoughts.

The Indiana Supreme Court's decision in City of South Bend v. Kimsey, et.al. (Ind.S.Ct. 1/15/03) may be accessed directly here. The Indiana Law Blog entry summarizing it is here. See also this entry.
*Thanks to Edward P. Benchik, Esq. TUESLEY & HALL, LLP, for providing me with copies of these two documents.

Posted by Marcia Oddi on Tuesday, September 21, 2004
Posted to Indiana Decisions

Indiana Decisions - One Supreme Court, One Court of Appeals ruling today

Indiana Dept. of Revenue v. Trump Indiana, Inc. (9/21/04 IndSCt) [Tax; Statutory Construction]
Boehm, Justice

The Indiana Tax Court held that a boat assembled in Florida and transferred to Indiana for use as a casino riverboat is not personal property and therefore not subject to sales and use taxation in Indiana. We hold that a boat delivered to Indiana is taxable as tangible personal property for purposes of the Indiana sales and use tax, even though it is also subject to property tax as real property once it is in place as a casino riverboat. * * *

For the reasons already given, we think the property tax definitions are inappropriate to interpretation of the sales and use tax provisions. When the Indiana General Assembly chooses a word without defining it, the court must examine the statute as a whole and attribute the common and ordinary meaning to the undefined word, unless doing so would deprive the statute of its purpose or effect. Consolidation Coal Co. v. Ind. Dept of State Revenue, 583 N.E.2d 1199, 1201 (Ind. 1991) (citations omitted). Indeed, the statutes direct us that words and phrases shall be taken in their plain, or ordinary and usual, sense. I.C. 1-1-4-1 (1998). See also Ind. Dept of State Revenue v. Hardware Wholesalers, 622 N.E.2d 930, 932-33 (Ind. 1993); Cf. UACC Midwest, Inc. v. Ind. Dept of State Revenue, 667 N.E.2d 232, 237 (Ind. Tax Ct. 1996). Because the General Assembly did not define tangible personal property for purposes of the sales and use tax, we apply the ordinary meaning of the phrase. Blacks Law Dictionary defines personal property as any movable or intangible thing that is subject to ownership and not classified as real property. Blacks Law Dictionary 1254 (8th ed. 2004). By this rather ordinary definition, a casino riverboat, like any other boat, is tangible personal property. As such, its purchase rendered it subject to use tax.

Conclusion. The decision of the Tax Court is reversed.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.

Richard D. Kruse v. The National Bank of Indianapolis (9/21/04 IndCtApp) [Banking]
Vaidik, Judge
Case Summary. Richard D. Kruse, guarantor of indebtedness arising from a loan from National Bank of Indianapolis (NBI or Lender or the Bank) to SignTec, LLC (SignTec or Borrower or the Company), appeals, arguing that genuine issues of material fact should have precluded the trial courts entry of summary judgment in favor of NBI. We find that because Kruse signed an absolute, unconditional and continuing Guaranty providing for unlimited liability and the waiver of various defensesincluding claims that the Bank extended the loans maturity date without Kruses consent and failed to notify Kruse of Borrowers noncompliance with the loans financial reporting requirementsKruses unsubstantiated allegations as to the Banks alteration of and Borrowers failure to comply with the underlying loan agreement will not discharge his liability. Moreover, we find that NBIs conduct did not breach any existing fiduciary duty or implied duty of good faith. Given these conclusions, we affirm the trial courts entry of summary judgment in favor of NBI and remand to the trial court with instructions to determine the amount of appellate attorneys fees to be added to NBIs judgment. * * *

Conclusion. We affirm the trial courts entry of summary judgment in favor of NBI, finding that Kruse has failed to show that there are any genuine issues of material fact affecting his guarantor liability. Given this finding, we need not reach the question of whether the trial court erred in striking Kruses original affidavit.

Additionally, we remand this case to the trial court with instructions to determine the amount of appellate attorneys fees to be added to NBIs judgment. Affirmed.
SULLIVAN, J., and MAY, J., concur.

Posted by Marcia Oddi on Tuesday, September 21, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts one (so far) today

Juen Toney v. L'Oreal (ND Ill.)

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge.
I. Background. In November 1995, June Toney, a model who has appeared in print advertisements, commercials, and runway shows, authorized Johnson Products Company to use her likeness on the packaging of a hair-relaxer product called Ultra Sheen Supreme from November 1995 until November 2000. In addition, Toney authorized the use of her likeness in national magazine advertisements for the relaxer from November 1995 until November 1996. * * *

In her complaint filed in state court, Toney asserted that LOreal, Wella, and Wella Personal Care of North America, Inc. (collectively, Defendants) used her likeness in connection with the packaging and promotion of the Ultra Sheen Supreme relaxer product beyond the authorized time period. Specifically, she claimed that the Defendants thereby violated (1) her right to publicity in her likeness as protected under the Illinois Right of Publicity Act, 765 Ill. Comp. Stat. 1075/1, et seq. (2003) (IRPA), and (2) the Lanham Trademark Act of 1946, 15 U.S.C. 1125(a).

The case was properly removed to federal district court on the basis of federal question jurisdiction. Following the Defendants motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court found that the IRPA-based claim met the conditions set out in 301 of the Copyright Act (Act), 17 U.S.C. 301, and was therefore preempted. Toney later voluntarily dismissed her Lanham Act claim with prejudice and the case was closed. She now appeals the district courts preemption determination. For the reasons stated herein, we affirm. * * *

In closing, we emphasize that Toney has attempted to obtain in this litigation that which could have been sought through a breach of contract action. In light of our Baltimore Orioles decisionwhich Toney does not challengewe are left only to speculate as to why such an action was not brought against the Defendants, which would have most likely avoided these copyright preemption issues.

III. Conclusion. For the foregoing reasons we AFFIRM the district courts dismissal of Toneys Illinois Right of Publicity Act claim.

Posted by Marcia Oddi on Tuesday, September 21, 2004
Posted to Indiana Decisions

Law - Are dress codes unconstitutional?

An article on MTV.com asks the question: "Are School Dress Codes A Violation Of Civil Liberties?" Some quotes:

Does a dress code help to eliminate gang activity and make schools safer, or is this just an example of schools trying to eliminate individuality? And if you want to dress like Marilyn Manson or Nelly, should your school have the power to make you look like John Mayer? * * *

The dress-code flap in Wichita is similar to what has occurred at schools in places like Whiting, Indiana, and Hershey, Pennsylvania. Essentially, clothing (be it patent-leather pants or a baggy pair of Ecko jeans) can be banned if a school's principal thinks that it will help "curb gang activity." In its publication Manual of School Uniforms, the U.S. Department of Education cited "decreasing violence and theft" and "preventing students from wearing gang-related colors to school" as benefits of adopting a school-uniform policy. But according to another organization, the Education Commission of the States [ECS] which monitors and researches education policy for 49 states and the District of Columbia none of these benefits have ever actually been researched. * * *

[W]here does the buck actually stop? According to [Jennifer Dounay, spokesperson for the ECS], the state governments give the power of decision to school districts, and school districts pass responsibility on to principals.

"Various court cases deal with students' First Amendment rights as far as clothing, and the courts have generally said that students do not have to get rid of those rights when they walk through a school door," Dounay said. "But at the same time, courts have said that the school does have an interest in safety, and if putting a uniform policy in place keeps the student safe, then that's an overriding interest."

This decentralization of policy, and the vagueness of the relationship between a wardrobe and student safety, has resulted in the wide range of dress codes in American schools. Perhaps not surprisingly, the people most effected students are often divided on the issue as well, as exemplified by the opinions of two people who wrote to MTV News regarding the Wichita story.

"Racial and religiously offensive clothing should be banned. That is about as far as it should go," said Jason Paar, a 17-year-old from Olean, New York. "If you discriminate against a type of preference, you are discriminating against the student. That should never happen."

"Bitch all you want, demand that a public school not have dress-code policies, [or] that this is a violation of our civil liberties," said Lara Niedzwiedzki, a 21-year-old Chicagoan. "This principal is doing nothing wrong by setting [a dress code] in place. Don't we have bigger problems to worry about?"

Posted by Marcia Oddi on Tuesday, September 21, 2004
Posted to General Law Related

Law - Secretary allegedly loots firm

"Ex-Legal Secretary Accused of Embezzling $200,000" is the title of this story posted today by Law.com. Some quotes:

Law partners Robert Pave and Debra Bogaards were "shocked and outraged," the suit says, to find out on Aug. 23 that the firm had $1,100 in the bank and owed $110,000 to vendors, with rent and payroll due in nine days.

The same day, the firm posted a want ad on the craigslist Web site seeking a new legal secretary, to "start immediately." * * *

According to the suit, Boyd began working at the firm in 1997, and her responsibilities included paying bills as well as signing and depositing checks.

Apparently, red flags began waving last spring.

In May or June, vendors notified the firm that they hadn't been paid, and that they'd sent many past-due notices. Around the same time -- in May -- Boyd decided to move to Mississippi; however, she offered to return to San Francisco for one week a month to pay the firm's bills and bill its clients, the suit says.

Posted by Marcia Oddi on Tuesday, September 21, 2004
Posted to General Law Related

Courts - Marion County Small Claims Court Judge Faces Charges

The lead story on the front page of the Local News section of the Indianapolis Star today is headlined: "Judge faces misconduct charges: Disciplinary complaint alleges violation of Small Claims Court rules, ethics." Some quotes:

Warren Township Judge Lori K. Endris has been accused of violating court and ethics rules in a disciplinary complaint filed Monday by the Indiana Commission on Judicial Qualifications.

Endris, who has served as judge of the Warren Township Small Claims Court since 2001, faces three judicial disciplinary charges for alleged misconduct.

"Judge Endris violated the small claims rules as well as the rules of ethics which require judges to respect and comply with the law, to act at all times in a manner promoting the public confidence in the impartiality of the judiciary, to maintain professional competence in the law, and to dispose of cases fairly," the commission alleged in a prepared statement.

The judge's attorney, Kevin P. McGoff of Indianapolis, said that he had not seen the charges and that it would be inappropriate to comment.

The commission charges claim Endris "has engaged in a pattern and practice" of violating Indiana Small Claims Rules by:

Permitting nonattorneys to file claims seeking more than $1,500 on behalf of others.

Allowing claims on contracts and accounts without requiring the claimants to attach copies of contracts and statements.

Entering judgments against small-claims defendants without giving them the required 10 days' notice.

The process the complaint will follow is outlined here, on the website of the Indiana Commission on Judicial Qualifications.

Judge Endris was earlier an Environmental Law Judge with the Indiana Office of Environmental Adjudication.

Posted by Marcia Oddi on Tuesday, September 21, 2004
Posted to Indiana Courts

Monday, September 20, 2004

Law - Madison County Illinois the focus of a number of stories

A "plaintiff's paradise" is how Madison County Illinois has been described. See, for instance, this April 17th Indiana Law Blog entry.

Howard Bashman of How Appealing has collected here the links to nine (so far) stories in the St. Louis Post-Dispatch that yesterday began a series entitled "Madison County: Where asbestos rules." The lead story may be accessed here. Some quotes:

How has Madison County, population 261,689, become a national center for lucrative asbestos litigation? The Post-Dispatch examined the system and found:

* A one-party court system dominated by Democratic judges whose campaigns are financed by contributions from Democratic plaintiff lawyers.

* A county where judges are often related to or at the least used to work beside the plaintiff lawyers appearing before them.

* A history of anti-corporate sentiment that produces sympathetic and generous juries.

* A history of intimidation that makes some judges wary of crossing the powerful plaintiff bar. * * *

Class-action settlements are often touted at dollar amounts that bear only slight resemblance to what is eventually paid out, and big medical malpractice awards, though well-publicized, are relatively rare.

But asbestos pays off huge in Madison County regularly returning settlements of $2 million to $3 million for asbestos-caused cancer and settlements of five and six figures for asbestos-related breathing problems. And it has been paying off regularly, month after month, year after year.

A RAND Corp. study estimates that 730,000 asbestos suits have been filed and $70 billion has been transferred from defendant corporations and insurance companies to victims and their lawyers since the litigation began in the 1970s.

Madison County's share of that $70 billion can be only estimated, because settlements are usually secret and the few cases that do result in jury verdicts are often resolved for a fraction of the verdict.

Even conservative estimates peg the payouts in the multibillion-dollar range, making the county a recognized center for such litigation, along with courts in Texas, Mississippi, Ohio, West Virginia and New York. * * *

Why is Madison County such a magnet for asbestos litigation?

For the same reason it draws all types of civil suits.

Madison County has been famous for decades as a good place to sue corporations. Plaintiff lawyers have brought their claims to Madison County because the county's juries have awarded damages to plaintiffs at far higher amounts than juries in, say, Clayton or Peoria.

[One reason is historical] Most of the area's industrial workers at the time were immigrants from Eastern Europe. Their leftist politics originated in the old country and were carried on here in pro-union groups such as the Industrial Workers of the World the Wobblies and the Socialist Workers Party. They fought for improved working conditions and higher wages against such corporate titans as the Niedringhaus family, owners of the city's massive Graniteware plant. * * *

The radical politics softened over succeeding generations.

"Politically, it has kind of petered out into pseudo-liberalism, but it's still an anti-corporate community," Chapman said. "That still affects the juries."

Add to that mixture Illinois' system of electing judges. Unlike Missouri's nonpartisan plan, in which urban judges are appointed by the governor, circuit judges in Illinois must run for election, and once elected, run for retention every six years.

A Post-Dispatch examination of campaign contributions found that the campaigns of Madison County judges are financed almost exclusively by lawyers, particularly the plaintiff bar.

[These quotes merely touch the surface of the story, and remember there are at least nine more.]

Posted by Marcia Oddi on Monday, September 20, 2004
Posted to General Law Related

Indiana Courts - Justice Rucker's son runs for Ohio prosecutor job

The Cincinnati Enquirer reports here today that:

Fanon Rucker started thinking like a prosecutor when he was a kid growing up in Gary, Ind.

He remembers burglars ransacking the family home, vandals tearing apart his mother's car and neighborhood thugs waking him up one morning as they tried to break in through a basement window. * * *

So when he became a lawyer years later, the first job he took was as a prosecutor for the city of Cincinnati. And when the Nov. 2 election for Hamilton County prosecutor was thrown open by a sex scandal three weeks ago, Rucker jumped at the chance to run.

"If you commit a crime, you need to be afraid," Rucker says. "That's my philosophy."

It's a philosophy he hopes will resonate with voters this fall in a race that pits him against three Republicans - including Ohio Treasurer Joe Deters - who are likely to echo his tough-on-crime mantra throughout the campaign. * * *

Rucker received the unanimous Democratic endorsement Sunday, said Tim Burke, the county's Democratic Party chairman. He has about six weeks to convince voters he's the right man for a job that has been held by Republicans for decades.

"Fanon Rucker is a very solid individual. He's just a good guy," Burke said. "He's going to more than hold his own against Joe Deters."

At 32, Rucker is the youngest candidate in the race, and he's believed to be the first African-American to run for the office.

But Rucker insists his campaign isn't about his age, his race or his party. Instead, he says, it's about how his personal and professional experience makes him the right person for the job.

Although he now does civil rights and criminal defense work, Rucker says he's naturally drawn to the prosecutor's office because of his childhood experience as a crime victim. He's also the son of Robert Rucker Jr., a former deputy prosecutor in Gary who now is an Indiana Supreme Court justice.

Posted by Marcia Oddi on Monday, September 20, 2004
Posted to Indiana Courts

Indiana Decisions - Two from Court of Appeals Today

Dirk Morris, et al. v. Economy Fire & Casualty, et al. (9/2004 IndCtApp) [Insurance]
Riley, Judge

ISSUE. * * * [W]hether the trial court erred in granting summary judgment in favor of Economy. * * *

On May 30, 2000, the owner of a mini-storage facility in Cloverdale, Indiana, contacted the Morrises to inform them that the storage unit that they rented from the facility had been broken into. Several items were taken from the Morrises storage unit, including a number of personal property items. Dirk went to the site of the mini-storage facility and met with an Indiana State Police Officer. At that time, Dirk estimated the loss to be approximately $15,000.00, as the used or garage sale value of the property that was stolen. * * *

On December 27, 2000, [the Morrises] submitted their Sworn Statement in Proof of Loss claiming the value of the stolen items to be Thirty-Eight Thousand Thirty-Eight Dollars and 28/100 ($38, 038.28). * * *

Based upon all of the above, we find that Economy has not shown that the Morrises willfully and intentionally refused to provide Economy with the necessary documentation so that it could continue its investigation of the Morrises insurance claim. Further, we hold that a genuine issue of material fact exists regarding the Morrises failure to submit to separate examinations under oath as required by the insurance policy. Consequently, we conclude that the trial courts award of summary judgment in favor of Economy was not appropriate. T.R. 56(C). * * *

[W]e find that the trial court erred in granting Economys motion for declaratory judgment. Particularly, Economys motion was based on its claim that the Morrises breached the insurance contact, and therefore, that the Morrises were not entitled to bring a suit in tort against them, pursuant to the policy. However, since we have determined that genuine issues of material fact exist regarding whether the Morrises breached the insurance contract, there is insufficient evidence as a matter of law to conclude that the Morrises were not entitled to file a lawsuit before the one-year limitations period expired. Consequently, we find that the trial court erred in denying the Morrises motion for summary judgment, and granting Economys motion for declaratory judgment.

United Farm Family Mutual Insurance Company v. Harold Michalski, et al. (9/2004 IndCtApp) [Insurance; Personal Property; Replevin]
Sullivan, Judge
Following a bench trial, Appellant, United Farm Family Mutual Insurance Company (United), appeals from the trial courts adverse judgment in an action for replevin of a boat known as Velocity brought by Riverside Lounge & Marina, Inc. (Riverside) and Riversides owner, Harold Michalski. Upon appeal, United presents four issues for our review, one of which we find dispositive: whether the trial court erred in finding for and awarding damages to Michalski and Riverside in their action for replevin. We reverse and remand.

This litigation centers around who, between the parties, has proper legal title and a right to possession of a 1988, thirty foot, Regal cigarette boat, HIN RGMT1035K788, known as Velocity. * * *

In short, Michalski and Riverside did not establish that Velocity was stored at the request of or with the consent of its owner, the authorized agent of the owner, or the lawful possessor thereof. Thus, Riverside did not establish that it had acquired a valid lien against Velocity. In applying for a title to Velocity, inaccurate representations were made, i.e. that a valid lien had been acquired, to induce the State of Illinois to issue a new title to the boat to Riverside. Riverside and Michalski thus failed as a matter of law to establish a valid title to Velocity which is superior to Uniteds. Further, Michalski and Riverside did not show that they have a right of possession to Velocity other than through the purported title, which we have concluded was not properly obtained. Therefore, we hold that the trial court erred in finding for Michalski and Riverside on their claim of replevin. The judgment of the trial court is reversed and remanded for further proceedings.
MAY, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Monday, September 20, 2004
Posted to Indiana Decisions

Environment - Stories Today

Medical Waste. The lead to a story today in the Gary Post Tribune reads:

Gov. Joe Kernan gave his word Sunday to a large group of Northwest Indiana residents that he will have the state review the legality of a proposed medical-waste dump slated to be built in Gary.
[Recall the 9/14/04 ILB entry that quoted this lead from a Chicago Tribune story: "Prompted by neighborhood activists pushing to close Evanston Hospital's medical-waste incinerator, Gov. Rod Blagojevich on Monday urged the state's last remaining hospital-trash burners to shut down."]

Private sewage treatment plants. The Louisville Courier-Journal reports today:

Two Floyd County citizens' groups have been instrumental in getting a state agency to consider a rule that could sharply limit the use of new or expanded private sewage-treatment plants by developers.

The proposed rule says such plants could be built or expanded only on streams that always have water in them and much more water than sewage.

It would prohibit the now-common practice of building subdivision sewage plants or package-treatment plants on small streams that are dry part of the year. The rule was proposed by the Greenville Concerned Citizens and Save Our Knobs. Brian Zipperle, a vice president of the Greenville group, said the proposal would create a major change in the way sewage plants are regulated in the state. * * *

But Greg Fifer, a Floyd County lawyer who often represents developers and once was an official of a company that built and managed sewage plants, said the proposal is unreasonable. "If you require that," he said, "you would shut down development. In Floyd County there are no streams that run year round."

Fifer said he believes that's also true elsewhere in the state. Major rivers, he said, wouldn't support the state's development needs if they were the only places new sewage plants could be built.

It happens that I have a several documents relating to this proposal. I've posted them; access them here: (1) the original citizens' petition; (2) an addendum (large file, contains color maps, etc. - Sorry, I can't get this to work. If you want it, you will need to download it as a MS Word doc from IDEM - check here); (3) an IDEM press release.

Note that this involves a citizens petition, much like the proposal before the Air Board concerning mercury emissions, discussed at length in this Sept. 16th Indiana Law Blog entry titled "Confusion about citizen rulemaking petitions." In the case of the Water Board petition, the IDEM press release does make it clear that all that is to be considered at the hearings is whether or not the public thinks a rulemaking should be initiated:

The Indiana Water Pollution Control Board (WPCB) wants to hear what Hoosiers think about a request that the state amend its rule regarding into which streams wastewater treatment plants can discharge treated water.
However, there is still confusion, as the the LCJ story quoted above implies that the Water Board is considering a rule, when in fact all it is doing is considering whether to direct IDEM to initiate a formal rulemaking. If and when a formal rulemaking is underway, there are a number of official notice and comment periods, public hearings on the content of the proposed rule, etc. The entire formal process can take several years or may entirely bog down at any point along the way.

Buyout of river homes to start. That is the headline of an AP story today reporting:

FORT WAYNE, Ind. -- More than a year after floodwaters swamped dozens of homes along the St. Marys River, officials are ready to buy and raze several of the houses.

Mayor Graham Richard said Friday that city officials expected to begin closing this week on the purchase of several homes damaged by the July 2003 floods. * * *

John Perlich, public works spokesman, said in determining values for the homes, the city used the average of two professional appraisals. He said homeowners uncomfortable with the average could pay for a third appraisal.

Regional Sewer Districts. The South Bend Tribune reports today that "Group's petition asks IDEM to drop Koontz Lake project." Some quotes:
Opponents of a sewer system for Koontz Lake say they have collected 363 petition signatures and will present them today to the Marshall and Starke county commissioners. * * * Another group of residents, the Koontz Lake Sewer Advisory Committee, has asked IDEM to form a sewer district in their community because they fear that septic tanks are polluting the lake or will eventually do so. IDEM plans to hold a public hearing in the spring. * * *

About 900 properties are in the Koontz Lake area. The Sewer Advisory Committee has claimed its survey found a majority of residents in favor of sewers.

However, Newlon in late June told The Tribune that whether a sewer district is formed is "not a matter of a popularity vote," and sewer proponents and IDEM do not have to prove that household septic systems have polluted the lake.

Sewer supporter David Stanley, a 49-year-old lifelong resident of the lake, said he is not sure what effect the opponents' petition will have.

"IDEM from what I understand has said this is not up for popular vote," said Stanley, a second-generation owner of Stanley's Marine. "They're saying, 'You have a pollution problem that the state is going to come in and require you to fix.' "

Smillie has said there might be failing septics on the lake, but it's up to their owners to fix them. But Stanley said a polluting septic system becomes everyone's problem.

Posted by Marcia Oddi on Monday, September 20, 2004
Posted to Environmental Issues

Law - Blakely v. Washington impact featured today in the Wall Street Journal

I generally read the Wall Street Journal online (paid subscription required) but I bought a copy this morning to read over breakfast. The featured story today (upper righthand side) is titled "Reasonable Dounts: How Judges Punish Defendants for Offenses Unproved in Court." The subheads: "Stories of five convicts show that chages in dispute can multiple prison time," and "The Supreme Court steps in." Excellent.

And there is more. The lead story in the B section is titled "Federal Sentencing Changes Could Strain Probation System."

Posted by Marcia Oddi on Monday, September 20, 2004
Posted to General Law Related

Indiana Decisions - One (so far) from 7th Circuit today

Fanslow, William v. Chgo Mfg Center Inc (ND Ill.)

Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. William Fanslow claims that his employer, the Chicago Manufacturing Center (CMC), retaliated against him in violation of the whistle-blower protections of the False Claims Act (FCA), 31 U.S.C. 3730(h), the Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/4(g), and Illinois public policy, when he reported alleged misappropriations of federal funds to a government official. CMC contends that it terminated Fanslow for legitimate, non-retaliatory reasons, including performance problems. Although the district court ruled in favor of CMC, we conclude that its grant of summary judgment was premature. We reverse and remand for further development of the record. * * *

For the same reasons we are remanding the FCA claim, we remand the state law claims for reconsideration.

Posted by Marcia Oddi on Monday, September 20, 2004
Posted to Indiana Decisions

Sunday, September 19, 2004

Indiana Courts - More on "Blakely Waiver in State Courts?"

On August 6th I posted an entry noting that "I've been told that a 'Blakely waiver' is being used in the Marion County courts." I said: "I'd like to post a copy here." However, no one contacted me.

Today I saw the following comment (affixed to this post) on the IU-Indiananpolis Law Student site, Sapere aude:

A defendant can waive the right to a jury trial on the aggravators (called, strangely enough, Blakely waivers).

In fact, it was the office of the Marion County Prosecutor's Office at the time I finished my summer internship to not allow defendants to waive a jury trial unless they also agreed to have the judge decide the aggravators. Prosecutors were under strict orders to not sign any jury waiver provided to us by opposing counsel. We were not going to have a bench trial on the facts and then go through voir dire and such for a jury trial merely on the aggravators. The Public Defenders thought they could use this as leverage to push for the office to agree to a lesser sentence after conviction to avoid the hassle of a jury trial. After much grumbling and a few days of us allowing no juries to be waived, the PD's office finally agreed, though they were still occasionally trying to get us to sign their forms.

I'm going to contact the author of the comment and see if he can help.

Posted by Marcia Oddi on Sunday, September 19, 2004
Posted to Indiana Courts

Indiana Law - Homeowners associations and deed restrictions

An interesting, and lengthy, editorial today in the Fort Wayne Journal Gazette on homeowner associations and restrictive covenants. A few quotes:

More municipalities are relying on developers to create homeowners associations, which include fees that can be in the high four-figure range annually. Southwood Parks association fee is $5 per year. Theyd like to raise it.

The fees are there to pay for the upkeep of common areas, such as snow removal and landscaping. In return, the covenants, conditions and restrictions, known as CC&Rs, which vary from subdivision to subdivision, establish guidelines to regulate, among other things, architectural standards. These private agreements are fine as long as they do not interfere with public safety and violate state and federal laws.

The problem that homeowners association opponents have is the draconian measures taken to assure compliance. The homeowners associations are, in effect, private governments, they say.

In the summer issue of Regulation, University of Maryland professor Robert H. Nelson writes that the legally permissible actions and obligations of a private neighborhood association in many areas will be considerably wider than of a municipal government.

An example is how covenants supersede municipal zoning regulations. If zoning ordinances reflect social policy, restrictive covenants are a contract between two private parties. City code may allow the construction of outbuildings, such as sheds, but a community association has a right to prevent one from being built.

In June the Indiana Supreme Court declined to hear a case involving a Fort Wayne man, a shed and the Wedgewood Community Association. Robert Nash was ordered to pay $28,000 in attorneys fees to the association for building an 8- by-10-foot garden shed on his property, in violation of the covenant. The shed did not violate any city ordinance.

Nashs lawyers argued that there was selective enforcement of the code. One of the board members was violating the same shed restriction. A lower court agreed, citing the unclean hands doctrine  the association acted in a disingenuous and unjustifiable manner. The building stayed, and Nash wouldnt have to pay the associations legal fees.

The appellate court reversed the decision, stating the unclean hands doctrine was erroneously used. The Wedgewood association is a not-for-profit corporation, not a homeowner.

Alleged selective enforcement of restrictive covenants is clearly not a violation of the restrictive covenant forbidding outbuildings and may be remedied by the ballot box of the association officer elections, the judges wrote.

Allen County government has run afoul of covenant restrictions. In 2000, a federal judge forced the countys plan commission to pay $35,000 in attorney fees and costs after the court ruled the commission violated the constitutional rights of William and Judy Daniels. The plan commission removed a restrictive covenant in the Broadmoor Addition that would have allowed a shopping center to be built there. The Broadmoor covenant states: No building other than a single-family dwelling and a private garage shall be built on any one lot. The plan commission, acting under an Indiana statute, sought to vacate the covenant. In effect, the lower court ruled the state statute was unconstitutional.

The 7th Circuit Court of Appeals in Chicago upheld part of the ruling. The plan commission, the three-judge panel concluded, was wrong for vacating the covenant for private purpose, in this case the building of a shopping center. The court did not agree the state statute was unconstitutional. There are several scenarios, the court said, where vacating the covenant would be a rational act, as in the case of enhancing the health, safety and welfare of the community.

Mr. Nelson's article, "The Private Neighborhood," that is mentioned in the editorial, is available here, from the Cato Institute's publication, Regulation, Vol. 27, No. 2, Summer 2004.

For more on neighborhood/homeowner associations. "Your Neighbors May Rule Your Roost" was the headline of a NYT story quoted in a July 28, 2003 Indiana Law Blog entry on the power of neighborhood associations to foreclose without due process.

"Homeowners associations facing backlash: More states taking aim at restrictive covenants," was the headlne of an AP story quoted in the Indianapolis Star, featured in this July 13, 2003 ILB entry. A quote from the AP story:

Experts call this accelerating trend one of the most stunning transformations in how Americans live, rent and buy homes; an estimated 50 million people live in areas governed by homeowners associations. Especially prevalent in the Sunbelt, homeowners associations -- with corporate-style rules that limit traditional town hall democracy and keep closed financial records -- govern 80 percent of the nation's new housing and neighborhoods, said a trade group.
The Indiana decisions mentioned in the editorial. Wedgewood Community Association, Inc. v. Robert & Barbara Nash is the Indiana Court of Appeals decisions referred to in the Journal Gazette's editorial. Justice Rucker dissented to the Supreme Court's denial of transfer (denial of appeal) in a written, published dissent dated 6/17/04, to which Justice Dickson concurred, making it a 3-2 vote to deny transfer -- I cannot recall having seen another written transfer dissent. You may access it via this 6/17/04 ILB entry -- third item.

The Court of Appeals decision in Wedgewood, dated 1/21/03, is available here. The CA opinion on rehearing, dated 5/21/03, is available here.

[Update] Here is the 7th Circuit opinion in the case of William Daniels and Judy Daniels v. The Area Plan Commission of Allen County (9/11/02) It was written by Judge Manion, and is 42-pages long.

Posted by Marcia Oddi on Sunday, September 19, 2004
Posted to Indiana Law

Indiana Law - More on "Are lawyers' invoices privileged?"

An opinion piece today in the Indianapolis Star, written by Dennis Ryerson, Editor, uses the Star's dispute with the library board as a springboard to talk about the need for more openness in government. The title is "Insisting on the public's right to see library legal bills." A quote:

During the last year, Star reporters filed dozens of Freedom of Information requests seeking information on everything from salaries paid public officials to records of closed meetings. In some cases we will take legal action to get the information we, and you, should expect to get under Indiana law.

Doing business in the open seems counter to basic human instinct. Private businesses typically don't have to disclose how they make decisions. Parents typically don't have to share family information with others. And some government leaders believe that the more information that's public, the more opportunity people will have to challenge it, adding conflict and delays to the decision-making process.

But this is a democracy, not a dictatorship. It's open government, not a private business. If public officials are doing their jobs well, they should have no hesitancy about operating in the open.

Without openness, the public cannot exercise its right to have a say on everything from the design and financing of new sports arenas to what is taught in the classrooms of our schools.

The media have a major role to play in protecting that right.

More about the libary board dispute may be found in this ILB entry from Sept. 17th.

Posted by Marcia Oddi on Sunday, September 19, 2004
Posted to Indiana Law

Law - Many election-process stories today

Voting machines. The Indianapolis Star has a front page story about voting machines used in Indiana elections, headlined "Voting machines' reliability debated: Questions rage over touch-screen systems." A companion story, titled "State's voting system has its sore spots," points to three other weak points in the Indiana voting system: poll worker issues; inaccurate voting rolls; and absentee voting fraud.

The Indiana Law Blog has had numerous postings about electronic voting and vote fraud; you may use the search box to locate them.

The NYT front page today also featured a story on touch-screen voting, titled "Ready or Not (and Maybe Not), Electronic Voting Goes National." Related Times stories today, available in the sidebar, are headlined "The Hand-Marked Ballot Wins for Accuracy" and "Missing Voting Machines Snarl Election."

Electoral college. The Colorado electoral college ballot initiative is featured today in the Times, in a story headlined "Coloradans to Consider Splitting Electoral College Votes." Some quotes:

Colorado voters have delivered the state for the Republican presidential candidate in every election in the last half century, except when Bill Clinton won by a whisker in 1992 and Lyndon B. Johnson swamped Barry Goldwater in 1964.

But if a ballot initiative called Amendment 36 is approved by the voters here on Election Day, the facade of unanimity will shatter, and in one stroke a new small state's worth of definitively Democratic Electoral College votes will be created in the heart of what has been the solidly Republican West.

Amendment 36 would make Colorado the first state to distribute its electoral votes on the basis of its popular vote. The change would take effect immediately with this year's election, which means that President Bush and Senator John Kerry would share Colorado's nine electoral votes, but neither would get all. * * *

If Amendment 36 passed it would essentially create a ministate within a state. For example, if a majority of voters go for Mr. Bush, Mr. Kerry could still collect four electoral votes. That is the total electoral allotment for New Hampshire.

"It could set a dramatic and amazing precedent," said James G. Gimpel, a professor of government at the University of Maryland. "When one state pursues a particular new initiative or new idea, other states tend to take a look." * * *

Supporters landed the measure on the ballot after collecting 134,000 signatures with help from a foundation in Phoenix that wants the Electoral College system scrapped nationwide. The amendment's backers say that voters are ready to try something new and that simply mentioning the 2000 election was enough to induce many people to sign. * * *

Although two states, Nebraska and Maine, allow each Congressional district's voters to determine that district's electoral vote, neither state has ever split its votes as a result. Colorado's system would guarantee a split every time.

Opponents of the measure say that a proportional distribution would make Colorado even less relevant than it is now in presidential elections, since the difference between winning and losing might just be one electoral vote. Supporters say the state would matter as never before.

The backdrop for the issue is the ever-increasing polarization of the nation, a fact that many political experts say is exaggerated by the Electoral College, with its winner-take-all mechanism. The candidates this year are not competing at all in a majority of states - some large, like California; others small, like Idaho - because they think they cannot win there or they cannot lose there.

Other recent ILB entries on the electoral college may be found here and here.

Redistricting. "Drawing the political lines: How gerrymandering affects election results" is the focus of a dual-author opinion piece today in the Star's opinion section. Too complex to summarize, but certainly worth a read, "Craig Ladwig of the Indiana Policy Review Foundation and Rob Richie and Steven Hill of the Center for Voting and Democracy examine this lack of competition [that is the result of gerrymandering] and what can be done about it." The answer appears to be "not much." This has also been the "answer" from earlier ILB entries, including this one from May 23, 2004.

Posted by Marcia Oddi on Sunday, September 19, 2004
Posted to General Law Related

Saturday, September 18, 2004

Law - A Mild Shanghai Lawyer and His Accidental Crusade

"A Mild Shanghai Lawyer and His Accidental Crusade" is the headline to this "Saturday Profile" in today's NYT that tells the story of Guo Guoting, who did not intend to become an activist. Some quotes from what I consider a must-read-in-full story:

For his efforts to defend a friend and principle, Mr. Guo has recently been driven from the law, deprived of a livelihood after most of his paying clientele was scared away, but not before adding his name to a long and growing roll of accidental activists, people driven to do something in their own immediate spheres by the intolerable injustices they encounter in everyday life.

One of those is the dispossession of the powerless, which has long been the dirty little secret behind much of China's extraordinary urban development. Local authorities have been able to condemn buildings and clear land without so much as a hearing, and distribute the land to developers in murky, no-bid sweetheart deals.

In Shanghai, a fantasyland of skyscrapers today in a city where tall buildings scarcely existed only 15 years ago, these stories have a particularly breathtaking quality to them. In some instances, residents of old properties in choice areas of the city have been summoned to the police station only to return and find their houses demolished.

Mr. Zheng had angered local officials by filing a series of lawsuits and court motions designed to at least slow the land expropriations.

In a touch that could have been borrowed from Kafka, the city government accused Mr. Zheng of violating security laws for faxing public documents about a real estate case to a human rights group in the United States.

That was when Mr. Guo took up his case, filing an appeal for his schoolmate in the Shanghai High People's Court. Immediately, he said, there were warnings to stop, subtle at first, but then increasingly menacing. Then his main business, representing maritime shippers, began to fall off, his clients frightened away. "The authorities called me in 18 times to tell me to abandon this case," he said. "It's not a legal matter, it's a political matter, they'd say.

"Finally, a midlevel cadre warned me, 'If you pursue this case any further, whatever comes of it will be entirely your own responsibility.'

Posted by Marcia Oddi on Saturday, September 18, 2004
Posted to General Law Related

Indiana Decisions - Ind. high court debating mouth jewelry

"Ind. high court debating mouth jewelry" is the headline to this UPI story published today in the Washington Times. (Scroll down or check here for earlier ILB tongue stud coverage.)

Posted by Marcia Oddi on Saturday, September 18, 2004
Posted to Indiana Decisions

Law - Woman with Levenger bookmark arrested by airport security

Here is the item in question from the Levenger catalog. Here is the catalog description:

Our weighty bookweight, which resembles a doorstop, will keep you on the page no matter how rebellious a book's binding. Even overfed paperbacks settle down. At 8"W x 2"H and 11 ounces strong, this full-grain leather bookweight is one of the heavyweightsmost bookweights weigh a mere 7 or 8 ounces. Designed in Levenger Studios, it's evenly balanced and covered by felt on the underside to protect paper. It also doubles as a convenient paperweight.
Here are some quotes from the AP report headlined "Teacher Arrested After Bookmark Called Concealed Weapon:"
Kathryn Harrington was flying home from vacation last month when screeners at the Tampa, Fla., airport found her bookmark. It's an 8.5-inch leather strip with small lead weights at each end.

Airport police said it resembled a weighted weapon that could be used to knock people unconscious. So the 52-year-old special education teacher was handcuffed, put into a police car, and charged with carrying a concealed weapon. [My emphasis. I'd guess she also missed her flight.]

She faced a possible criminal trial and a $10,000 fine. But the state declined to prosecute, and the Transportation Security Administration said it probably won't impose a fine.

Thanks to Richmond attorney E. Thomas Kemp, who reported this yesterday in his Kemplog.com.

Interesting. I recall this AP report from Arpil 21st:

Indiana Republican John Hostettler was detained at an airport checkpoint in Louisville while he was travelling through Kentucky on his way back to D.C. The congressman was eventually allowed to board the flight. A spokesman for Hostettler said the congressman is an avid sportsman and has a permit for the weapon. Hostetler said having a gun at the airport was "a rather stupid mistake."
And some quotes from this AP report dated August 10th:
LOUISVILLE, Ky. An Indiana congressman pleaded guilty Tuesday to a charge he brought a loaded gun to Louisville International Airport in April. * * *

Hostettler agreed to a 60-day sentence that would be suspended for two years, said Bill Patteson, a spokesman for the Jefferson County Attorney's office. Hostettler would not have to serve the sentence if he meets the terms of the plea agreement, Patteson said. * * *

Hostettler, a Republican who represents the 8th District in southwestern Indiana, was stopped when security workers at the Louisville airport found a Glock 9 mm semiautomatic handgun in his briefcase as it passed through an X-ray scanner. Hostettler said he forgot he had placed the gun in the briefcase. He was about to board a flight to Washington. * * *

In the last two years at least 10 people have been stopped at the Louisville airport with guns in carryon luggage. Court and airport police records show most were fined about $100 and given no jail time.

So even if the feds do impose a fine on the teacher packing the concealed bookmark, chances are it may not be more than $100.

Posted by Marcia Oddi on Saturday, September 18, 2004
Posted to General Law Related

Indiana Decisions - More on yesterday's Court of Appeals ruling on abortion waiting period statute

The Indianapolis Star has a more extensive story this morning on yesterday's ruling. The headline is "Court rules for privacy in abortions: Judges sidestep decision on whether waiting period before an abortion is constitutional." Some quotes from the story:

The court sent the case back to a Marion County judge, extending the long legal battle that began soon after the Indiana General Assembly passed the law in 1995.

Delayed by court challenges for so long that it didn't go into effect until this April, the law has been a lightning rod for abortion-rights advocates.

Though it left the key question unanswered, Friday's ruling sets a standard that judges can use in determining whether the legal requirement will remain on the books.

"There appears to be scant evidence that an externally imposed waiting period actually leads to further reflection or soul-searching," Judge Nancy Vaidik wrote for the court. * * *

"The citizens of Indiana have a fundamental right of privacy inherent in and protected by our state Constitution," Vaidik wrote.

"We have no doubt that it extends to the right to make decisions about our health and the integrity of our minds and bodies. Included within the protection of the right to make decisions about our health care and the integrity of our minds and bodies is the decision to terminate pregnancy."

The law cannot impose a "material burden" on exercising these privacy rights, the appellate court ruled. * * *

Judge John Baker, in a minority opinion, declared the informed-consent law should be struck down immediately because it discriminates against women.

Baker stated: "My research has uncovered no medical procedure in Indiana other than abortion, which by definition can only be performed upon a woman, in which the attending physician is required to provide information in the patient's presence 18 hours before the procedure."

With 10 clinics and hospitals in Indiana performing abortions, requiring women to receive face-to-face counseling and then return after at least 18 hours for the procedure was intended only to make it tougher to get abortions, said Betty Cockrum, president and chief executive of Planned Parenthood of Indiana.

"One gender is being unduly burdened," she said. "Nowhere else in state or federal law do you find that."

An AP side-bar to the story is titled "What's next?" It reports:
According to the ruling Friday by the state Court of Appeals:

Marion Superior Court Judge Gerald Zore will have an evidentiary hearing to determine whether the informed-consent law imposes a "material burden" on a woman's right to privacy.
Abortion providers should be allowed to present evidence on the nature and severity of the burden imposed by the law's waiting period and in-person counseling requirements.
The requirements should not be considered separately, the ruling said, "as it is the imposition of the two in tandem that appears so burdensome."

The main story states:
Ken Falk, legal director for the Indiana Civil Liberties Union, which filed the lawsuit with help from New York attorneys, said he expects the state to appeal.

Indiana Attorney General Steve Carter, who defended the law, was unavailable for comment. His spokeswoman, Staci Schneider, said the attorney general's office was reviewing the opinion and won't decide its next move for several weeks.

The Indiana Court of Appeals has now posted an alternative, much better-formatted version of its opinion than that posted yesterday (and linked to in yesterday's entry, below); you may access the well-formatted version here: Clinic for Women, Inc. et al. v. Carl J. Brizzi.

Here is a link to the AP coverage, as published today in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Saturday, September 18, 2004
Posted to Indiana Decisions

Friday, September 17, 2004

Indiana Decisions - [Updated] Court of Appeals acts on abortion statute

The online Indianapolis Star has posted a story this morning reporting, per the headline: "Appeals court orders review of abortion law: Three-judge panel sends informed-consent case back to Marion Superior Court, saying it must decide whether statute is constitutional." Some quotes:

The Indiana Court of Appeals weighed in on the abortion debate today when it ruled -- for the first time -- that women have a right to privacy when it comes to the controversial procedure.

The three-judge panel's ruling was in response to an appeal in an ongoing battle over a 1995 informed-consent law that requires women seeking an abortion to make two trips, at least 18 hours apart, before having an abortion.

The judges unanimously agreed on the privacy issue, but sidestepped whether the law violates that standard and is thus unconstitutional. They voted 2-1 to send the case back to Marion Superior Court Judge Gerald Zore to let him decide the law's constitutionality.

Last year, Zore denied abortion providers' request to block the law, which has been the subject of ongoing court battles. Zore's ruling allowed the law to take effect while appeals were being pursued.

While one appeals court judge said the law is unconstitutional, the other two voted to let Zore determine what steps should be taken next.

The decision is Clinic For Women, Inc., et al v. Carl J. Brizzi, et al.

Clinic For Women, Inc., et al v. Carl J. Brizzi, et al (9/17/04 IndCtApp) [Constitutional Law]
Vaidik, Judge

Clinic for Women (the Clinic) appeals the trial courts decision to dismiss its complaint challenging the constitutionality of Indiana Code 16-34-2-1.1, the statute governing voluntary and informed consent to abortion. We find that article I, 1 of the Indiana Constitution protects and is animated by privacy as a core constitutional value and that this state constitutional right of privacy extends to all Indiana citizens, including women seeking to obtain an abortion. Thus, we reverse and direct the trial court to reinstate the complaint and to conduct a hearing for the purpose of determining whether the requirements of the informed consent statute impose a material burden on the core constitutional value of privacy. We also find, as a matter of first impression, that article I, 9 of the Indiana Constitutionthe free speech provisionextends to the right to refrain from speaking, i.e. compelled speech, but that the informed consent statute does not unconstitutionally infringe upon this right. Reversed. * * *
KIRSCH, C.J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion:
The law is dialectic in a deeper sense than its adversary process. It mediates most significantly between right and right. See footnote Today we are charged with precisely this type of mediationthe womans right to an abortion and the governments right to regulate the same. I fully concur with Part III of the majoritys opinion. However, I must dissent from the majoritys determination that a right to privacy may be found in Article I, section 1 of the Indiana Constitution. I further disagree that the question of whether the eighteen-hour and in-person requirements are a material burden is a question of fact that should be remanded to the trial court. Because I believe that these requirements are facially discriminatory and not rationally related to a legitimate state goal, I would reverse the trial court without remanding. * * *

Posted by Marcia Oddi on Friday, September 17, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts two today

Gale, Andrew v. Hyde Park Bank (ND Ill.)

Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. In April 2002 Andrew Gale overdrew his checking account at Hyde Park Bank. He blamed the Bank, asserting that its delay in posting to his account a transaction in December 2001 with his debit card led him to think that the account contained a greater balance. He sued under the Electronic Funds Transfer Act, contending that the delay in posting the debit-card transaction violated 15 U.S.C. 1693h(a)(1), which requires banks to make electronic fund transfers in a timely manner. He also contended that the Bank had failed to provide him with information required by 15 U.S.C. 1693f. The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief may be granted.

* * * Although the complaint did not cite these regulations, it did not have to. Complaints plead claims, not legal theories. See Bartholet v. Reishauer A.G. (Zrich), 953 F.2d 1073 (7th Cir. 1992). All a complaint need do is narrate a claim for relief. See Fed. R. Civ. P. 8; Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Gales complaint met this standard. He is entitled to judicial resolution of that grievance.

The judgment is vacated, and the case is remanded for further proceedings on Gales claim under 1693f and the corresponding regulations.

Crull, Misti v. Sunderman, William (ND Ill.)
Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Misti Crull brought this action pursuant to 42 U.S.C. 1983 against her former employer, the State of Illinois Judicial Inquiry Board (JIB), individual JIB members and employees. She alleged constitutional violations as a result of the termination of her employment. The district court dismissed the JIB as a party because it was immune from suit in federal court. The parties then filed cross-motions for summary judgment. The remaining defendants asserted that summary judgment was appropriate because Ms. Crull had no property interest in her continued employment, and, therefore, they were entitled to qualified immunity. The district court denied both motions. The defendants appealed. We now reverse the judgment of the district court. * * *

[p. 27] Conclusion. We find that Ms. Crull failed to demonstrate a property interest in her continued employment pursuant to any statute, regulation or contractual agreement, either express or from mutually explicit understandings. Accordingly, the defendants were entitled to summary judgment. The judgment of the district court is reversed.

Posted by Marcia Oddi on Friday, September 17, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer List for Week Ending September 17, 2004

Here is the Indiana Supreme Court's transfer list for the week ending September 17, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Three cases are granted transfer. The ILB entry for one of them, Stephen & Suzan Cox v. William E. Paul, DDS (4/7/04 IndCtApp), may be found here. The other two cases granted transfer were categorized as "Not for Publication" by the Court of Appeals, have not been made available on the Court's website, and hence we have not yet seen them.

Posted by Marcia Oddi on Friday, September 17, 2004
Posted to Indiana Transfer Lists

Indiana Courts - Are lawyers' invoices privileged?

The Indianapolis Star reported yesterday:

The city's library and The Indianapolis Star squared off in court Wednesday over legal fees racked up as part of the newspaper's attempt to make library documents public. The Star wants the library to pay $8,600 in fees the newspaper incurred in a battle to obtain documents that detail how much Tabbert Hahn Earnest & Weddle charged the library for its legal work. The Indianapolis-Marion County Public Library used Tabbert to negotiate the legal morass triggered by construction problems discovered in the $102.7 million Central Library expansion. * * *

Library attorneys countered that they always had intended to produce the documents and argued that taxpayers should not foot the bill of attorneys hired by a private company. "Part of our profession is to protect our attorney-client privilege," said library attorney Greg Hahn, explaining why the bills were reviewed and redacted before being released. "We've erred on the side of redaction."

I recalled the Star story this morning when I read this story, titled "Lawyers' Invoices Are Not Privileged Communications: Records must be produced upon subpoena, Pennsylvania appeals court rules." Some quotes about the law in Pennsylvania:
Lawyers' billing invoices are not privileged attorney-client communications and must be produced when subpoenaed in a civil contempt hearing, the Pennsylvania Superior Court ruled Monday in a dispute over a guardian ad litem's fee request.

"The subpoenaed invoices are not privileged documents to the extent that they do not disclose confidential communications" between the attorneys and their client, Senior Judge Zoran Popovich wrote in Slusaw v. Hoffman.

If an invoice does refer to confidential communications, those references may be redacted, the three-judge panel concluded.

Posted by Marcia Oddi on Friday, September 17, 2004
Posted to Indiana Courts

Environment - Stories Today

"County may sue state on landfill" is the headline to this story today in the Gary Post Tribune, that begins:

CROWN POINT Lake County officials are holding the hammer over the state Department of Environmental Management: deal with the mess at the Feddeler landfill or get ready for court. At a meeting with IDEM officials this week, representatives of the county Solid Waste Management District board outlined options for dealing with the closed landfill on Indiana 2 near Lowell, according to County Commissioner Gerry Scheub.

If IDEM doesnt see to it the site is either capped or emptied, the county will sue the agency, said Scheub, the Waste Management Boards chairman. IDEM didnt do their part to make sure this site was run properly, and the people down there are paying for it, Scheub said. The landfill was supposed to hold only construction and demolition debris, but hazardous waste from Spartan Chemicals was illegally dumped there at some point.

IDEM is working to make sure R&M Enterprises, the corporate parent of now-bankrupt Feddeler, properly closes the site, according to Bruce Palin of IDEM. * * * Palin said IDEM will likely present a report to the Solid Waste Board within the next couple weeks, detailing the amount of progress at the Feddeler site and describing the plans to finish the containment work there.

"Tire recyclers facing criminal charges" is the headline to this story today in the Muncie StarPress. Some quotes:
MUNCIE - For five years, two brothers who owned the CR3 tire recycling business knowingly or intentionally violated the state's environmental management laws, authorities alleged Thursday. As a result, Michael Gruppe and William Gruppe III are facing six felony charges apiece. A major tire fire destroyed CR3 on Aug. 1, 2003.

"Disregard for laws that are a threat to the public's health cannot be tolerated," Indiana Attorney General Steve Carter said in an interview. "These are class D felonies [each] punishable by six months to three years incarceration and fines up to $10,000." The criminal charges include illegal disposal of waste tires, creating a fire hazard, and storing waste tires without a certificate of registration.

"New rules unveiled to battle toxic air: Regulations part of reduction effort" reports the Louisville Courier-Journal today:
Louisville air regulators yesterday unveiled six new and eight modified regulations that make up its proposed program to reduce toxic air. The regulations are designed to allow the metro government to curb toxic air pollution within six years a much faster pace, officials said, than if they allowed the federal government to do the job.

"It will absolutely make a difference," Art Williams, director of the Louisville Metro Air Pollution Control District, said of the program.

A study completed last year identified health risks from toxic air pollution that were higher than the U.S. Environmental Protection Agency previously had estimated for anywhere in the country.

The regulations require 173 industrial facilities to more thoroughly report emissions of 38 toxic chemicals believed to pose health risks to Louisville residents. The companies would need to determine whether their emissions pose an unacceptable risk. If so, they would need to reduce emissions or seek an exemption.

"Judge hears Elkhart River dispute" reads the headline to this story in today's Fort Wayne Journal Gazette. Some quotes:
ALBION Attorneys for and against converting the Elkhart River into a regulated drain made oral arguments for their cases during a judicial review hearing Wednesday.

Representing four environmental organizations, four municipalities and three couples, Attorney Martin Lucas argued that the Joint Noble-LaGrange County Drainage Board did not have the authority to declare the river a regulated drain and the data the board used to justify the decision was not scientifically replicable.

For the drainage board, attorney J. Everett Newman III said that the river needs to be maintained for the good of the landowners along it, as well as for the more than 500 miles of county roads in its watershed.

The issue at hand is the drainage boards May 2003 decision to designate the river a regulated drain, allowing the county to perform maintenance work on the river and assess property owners in the watershed. A minimum ditch assessment of $5 per parcel was approved.

Posted by Marcia Oddi on Friday, September 17, 2004
Posted to Environmental Issues

Indiana Decisions - Tongue stud DUI case argued yesterday before Supreme Court

"Tongue stud's impact on breath test argued: State Supreme Court considers whether mouth jewelry affected the examination in woman's 2001 DUI case." That is the headline to this story today in the Indianapolis Star. Some quotes:

Brenna Guy doesn't wear a stainless steel stud in her tongue anymore, but her old one was debated at the Indiana Supreme Court on Thursday.

The Indianapolis woman's tongue stud is at the center of a case about the way police should deal with metal in people's mouths during alcohol breath tests.

Guy, 23, was wearing the mouth jewelry when an Indianapolis Police Department officer pulled her over in 2001 and suspected she was driving drunk. Though he noticed she was wearing a tongue stud, he didn't make her take it out.

Guy's breath test showed a blood-alcohol level at which a driver is considered drunk, so she was arrested and charged with operating a motor vehicle while intoxicated. She was not convicted; the case is on hold pending the Supreme Court ruling.

State law and regulations declare that no "foreign substance" be in a person's mouth during the 20 minutes before a breath test.

And that's the crux of the issue before the state's five-member high court, which didn't issue a ruling Thursday.

I, for one, certainly would have been surpised if it had.

The case heard yesterday was Brenna Guy v. State of Indiana. Here is the Court of Appeals decision.

Here are links to three ILB entries on Court of Appeals decisions on tongue studs: 4/5/04; 4/3/04; and 4/2/04.

Posted by Marcia Oddi on Friday, September 17, 2004
Posted to Indiana Decisions

Thursday, September 16, 2004

Law - Still more on 6th Circuit decision holding Ohio tax incentives unconstitutional

The Fort Wayne Journal Gazette has an editorial today that begins:

A recent ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati that tax credits to corporations are unconstitutional could eventually affect Indiana. Local and state economic development officials should watch closely as the case continues.

The ruling upheld a lawsuit arguing that an investment tax credit Ohio gave to DaimlerChrysler AG to build a Jeep plant in Toledo constituted preferential treatment and was hence unfair. A lawyer arguing against the tax credits called them corporate welfare.

For more on this, see this 9/8/04 ILB entry, and this 9/3/04 ILB entry that includes a link to the 6th Circuit decision, Cuno v. DaimlerChrysler Inc.

[Update] See also "6th Circuit Rejects Ohio's Use of Tax Credit: Dozens of states that lure businesses with tax credits could be affected", from the National Law Journal.

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to General Law Related

Environment - Frustrated by IDEM, Berne finds assistance elsewhere

"Frustrated by IDEM, Berne finds assistance elsewhere" is the headline to this story today in the Decatur Daily Democrat that reports:

Frustrated in their attempts to convince Indiana Department of Environmental Management (IDEM) that numerous projects under way in Berne to alleviate flooding and eliminate combined sewer overflows should be sufficient to have the state agency lift a building ban in the city, Berne municipal officials turned to the Indiana lieutenant governor's office for assistance.

That move apparently has paid dividends.

Mayor John Minch termed an August 31 meeting with IDEM, coordinated by the lieutenant governor's office, as "more positive" than previous sessions.

"I felt IDEM was starting to listen to us," Minch told Berne City Council on Monday.

In my experience, this is not a new strategy. It marks the continuing tension between environmental concerns and economic development.

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to Environmental Issues | Indiana economic development

Environment - Confusion about citizen rulemaking petitions

I'm confused after reading two editorials about the citizen mercury proposal pending before the Indiana air board, and a letter to the editor from IDEM Commissioner Lori Kaplan. I've got the rulemaking statutes in front of me. I'm going to set out a number of items and try to tie them together. It is not my intention to take a position one way or the other but simply get people to think in terms of the statutory requirements.

First, the 9/1/04 ILB entry titled "Indiana air board meeting turns contentious today." I was at that meeting. The entry lays out the basic issue -- the Hoosier Environmental Council submitted a petition to the Air board in June, pursuant to the provisions of IC 13-14-8-5, which allows citizen-initiated rulemaking ("for the adoption, amendment, or repeal of a rule") under certain conditions. If the conditions are met, "the board shall give notice and hold a hearing on the proposal."

The editorials I will quote below argue that a number of hearings need to be held throughout the state. I don't agree; I think that would only delay actual rulemaking. I think that the "hearing" before the board described in IC 13-14-8-5 is for one purpose only -- for the board to decide whether or not to direct IDEM to initiate a formal rulemaking on mercury emissions.

By "formal rulemaking", I mean one that complies with the statutes. The rulemaking law has very specific requirements that must be met. It is quite complex, as can be seen from these environmental rulemaking charts (overview -- center column) and (detailed -- a 2-page chart) I prepared some time ago. As is shown, the formal rule development process allows for several written comments periods, and a number of public hearings. It may take from one to two years to complete; the end result is a promulgated rule.

Anything else -- the public hearings/meetings the two editorials are calling for, the workgroup process that IDEM is proposing, may be useful but they are not a part of the formal statutory rulemaking process and do not lead to a formal rule.

Second, here are some quotes from the editorials and IDEM letter I mentioned earlier.

"One hearing won't cover mercury issue" is the headline to this editorial published Monday, Sept. 6th in the Indianapolis Star. Some quotes:

The state Air Pollution Control Board's decision to hold a public hearing on mercury emissions regulations is welcome news for those who believe this issue is too important to be left to specialists.

One hearing, however, is not enough. The board and its working group of environmentalists, business representatives and government agents have the option of adding hearings as the process goes on; they should exercise it.

It took public pressure, including a petition drive by the Hoosier Environmental Council, to move the board to hold a hearing, which is set for Oct. 6 in Indianapolis. Concerned citizens from elsewhere -- especially southern Indiana, where the electrical power plants that spew the bulk of mercury emissions are concentrated -- deserve reasonable access to the ears of the decision-makers.

I believe the Star editorial is based on a misunderstanding of the Indiana environmental rulemaking process.

Here is some of what the Evansville Courier-Press said last week (9/6/04):

The Issue: State plans only one public hearing on mercury rules. Our View: Apparently, officials don't give much weight to public input.

Finally, the Indiana Air Pollution Control Board has agreed to have a public hearing on new rules aimed at reducing mercury pollution and, in addition, is planning a series of discussions with industry, environmentalists and others.

But that's not enough. * * *

But Janet McCabe, assistant commissioner in the Office of Air Quality at the Indiana Department of Environmental Management, said there would be a series of working-group discussions, and one public hearing, Oct. 6, in Indianapolis.

IDEM Commissioner Lori Kaplan responded to the editorial in a letter published in the Evansville paper yesterday, Sept. 15th. Here are some quotes:
* * * The debate is not about whether Indiana should develop a mercury rule. The board has already indicated its intent to do so. The issue now becomes the substance of that rule, and we need more information before meaningful public debate can begin. * * *

Indiana will be greatly affected by any new regulation because it has a significant electric utility industry that relies heavily on Indiana coal to generate low-cost electricity. Utilities are the top producers of mercury emissions as part of their operations. And while we must address regulatory needs to protect human health, we must also keep in mind that the costs of that regulation will be borne by ratepayers, so the money must be invested in the best possible manner.

Because mercury emissions are easily transported from state to state, the best regulatory solution is one that is followed uniformly by all the states. IDEM chose not to recommend that the board pre-empt the federal government's mercury emissions rule-making process by adopting a state regulation. Not because it believes the issue can wait. Not because it believes these emissions do not need regulation. But because it made sense for it to try to influence the federal rule first, and then, once it is finalized, to address any flaws in that rule, which it then must accept as the foundation for state regulation.

IDEM looks forward to the board's public hearing, the workgroup's discussion and findings and any additional action that may be necessary as a result. The workgroup will include as many members of the public, the scientific community, and the environmental community as want to participate.

Indiana is on course to adopt mercury emission regulations. That process requires and will provide additional public hearings and opportunities for all Hoosiers to express their thoughts on the issue. I encourage all those who are concerned to be a productive part of the workgroup and to submit your comments throughout this process.

I'm confused. The letter says the board has already indicated its intent to adopt a mercury rule. If so, perhaps there is no need for any hearing; the board can simply direct IDEM to begin the rulemaking process under the law, by publishing a First Notice in the Indiana Register and asking for formal input. Once the formal rulemaking process is underway, workgroups can also be established to provide an additional forum for input. That is the normal practice on a complicated issue.

Third, here are a couple additional documents for those who have read this far.

Here is IDEM's workgroup proposal that I also posted Sept. 1st and described then thusly:

The dispute today involved a "Proposal for Mercury Rule Workgroup" (available here) prepared for the Board by IDEM, and in particular whether the IDEM proposal for proceeding corresponded to the process set out in the statute.
And finally, the IDEM legal office published in the Indiana Register on June 1, 1995 (18 IR 2355-56) a NonRule Policy Document titled "APCB, WPCB, SWMB Citizen Rulemaking Petition Procedures." Access it here. You may observe that the process described parallels my understanding of the statutory requirements.

[Note that the environmental statutes were recodified and renumbered in 1996; IC 13-7-7-3 became IC 13-14-8-5.]

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to Environmental Issues

Law - More on Blakely impact on states

Anne Skove, Sr. Analyst/Staff Attorney for the National Center for State Courts, and author of the 30-page paper "Blakely v. Washington: Implications for State Courts" has sent me a note to say: "The Blakely memo has been updated to reflect state activity. The new version has the same web address as the old." The memo is available here.

Indiana is mentioned on pages 3 and 12; the Indiana Law Blog is mentioned on pages 13 and 21.

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to General Law Related

Indiana Law - Reports of two SE Indiana land use disputes

Both stories are in today's Louisville Courier-Journal. The first is headlined "Charlestown denies zoning change sought for sale of land." Some quotes:

The Charlestown City Council has denied a zoning change requested by a New Albany couple who wanted a subdivision with 70 to 90 homes developed on Charlestown's northern border. By a 3-2 vote, the council decided Monday to reject the proposed change from agricultural to residential zoning. * * * The zoning denial restricts the Bachelders from seeking a similar change in the future. City Attorney Lonnie Cooper said he believes the restriction applies for 12 months.

Paul Primavera, a surveyor and engineer based in Corydon, handled some of the presentation for the Bachelders at the meeting. He said the zoning change would have fit with Charlestown's master plan, because the land is adjacent to property with an even denser residential classification. Primavera also worked on two larger proposals earlier this year that ran into problems with Charlestown's regulatory process. But he said those projects by developers James Darnall and Greg Furnish, respectively eventually received the city's blessing after their density was reduced. Joyce Bachelder said she and her husband plan to talk to their attorney before deciding how to proceed.

The second story is headlined "Greenville group sues to stop project." Some quotes:
Continuing an 18-month-long controversy, a group of Greenville-area residents filed suit yesterday asking the courts to overturn the approval of a 206-lot subdivision proposed for their area. The lawsuit, filed in Floyd Superior Court by the Greenville Concerned Citizens, claims the county Plan Commission made nine errors in approving the 98-acre Heritage Springs development last month. Commission President Paul Riggs said the issues raised in the suit were considered by the commission and shouldn't lead a judge to overturn the approval. "It sounds like a shotgun approach," Riggs said, "a last-ditch effort" to stop the subdivision. Anna Mae Gahlinger, the citizens' group president, said her members strongly oppose the subdivision because they believe it will destroy their rural lifestyle by turning the area into a transient, urban neighborhood of small houses and congested streets.
[Update 9/19/04] Make that three. The LCJ reports here today that:
Several residents along Utica Pike in Jeffersonville have gone to court to stop a developer from building 26 patio homes they say were illegally approved by city zoning officials and the Jeffersonville City Council.

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to Indiana Law

Indiana Decisions - Same-sex custody issues

The Indiana Law Blog had two entries earlier this month on the the custody case in Noblesville involving, as the Indianapolis Star reported at the time: "A couple sparring over custody of their son, [who] will square off today in a legal fight that also tests state law. Both parents are women, and each is the mother of 4-year-old Luke Wihebrink -- one biologically, the other by adoption."

The first entry, dated 9/3/04, reported that the dispute would be heard before Judge Bernard L. Pylitt that day, and gave a good deal of background. The second entry, dated 9/4/04, reported on the outcome of the case.

A story today in the Star, titled "Judge seeking custody laws in same-sex cases," reports:

A judge in a custody dispute between parents who are each the boy's mother is urging legislators to help jurists in his position.

"Unfortunately, the Indiana General Assembly has not yet created a vehicle for a court to address child custody disputes when a same-sex relationship terminates," Hamilton Superior Court Judge Bernard "Buddy" Pylitt said in a recent order setting a final hearing in the case for Jan. 31.

"The General Assembly is encouraged to address this vacuum at its earliest convenience."

It is unclear whether this order was issued on Sept. 4th or later. [The ILB would be pleased to post a copy of the order, if one is available -- there are no clues in the stories as to who the counsel are, etc..] More quotes, as reported by the Star, from the order:
While typical adoption statutes do not allow a mother to retain parental rights, judges across the country have begun to permit such equal-parent and same-sex adoptions.

In general, they reason, adoption laws based on the best interests of a child should allow for societal changes that recognize same-sex partnerships and any parental benefits they bring.

Pylitt said, however, that a new challenge arises when those relationships end, further widening the gap between how law is written and how it is applied.

"It would be very easy for this court to 'close its eyes' . . . by simply finding no jurisdictional basis and dismissing all pending petitions," Pylitt said in noting the lack of a guiding statute that has judges employing modern-day interpretations as they see fit.

"However, to do so would require that the court ignore the best interests and needs of an innocent 4-year-old boy, who is deeply loved by both of his mothers."

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to Indiana Decisions

Indiana Decisions - Same-sex marriage case still being pondered by Court of Appeals panel

"Couple's life goes on as court considers same-sex marriage" is the headline of this page one story today in the Indianapolis Star. Some quotes:

Nearly eight months have passed since a three-judge panel from the Court of Appeals heard oral arguments in the case, similar to the suit that last year resulted in the Massachusetts Supreme Judicial Court striking down that state's ban on same-sex marriages.

While the Indiana court has issued rulings in other cases heard after the Jan. 12 oral arguments, there is no indication when it will rule in the marriage case. * * *

The three appellate judges who will decide the case are Chief Judge James S. Kirsch, of Indianapolis; Michael P. Barnes, of South Bend; and Ezra H. Friedlander, of Carmel.

Regardless of how they rule, the case is likely to end up with the Indiana Supreme Court.

As the case moves through the court system, the Indiana General Assembly is expected next year to consider a proposed constitutional amendment banning same-sex marriage. If approved, the amendment would override a court ruling that opens the door to same-sex marriage or civil unions.*

The legal challenge to Indiana's ban on same-sex marriage is among about a dozen pending in states across the country, said Heather Sawyer, supervising attorney for Lambda Legal, a national organization fighting for the civil rights of gay, lesbian, bisexual and transgendered people.
*[A] proposal to amend the Indiana Constitution to ban same-sex marriage is expected to be considered by the General Assembly in 2005. If approved, the proposal would require a second approval by the legislature in 2007, then would be put to a referendum of voters in November 2008. [This is from a side-bar to the main Star story.]

The case currently pending before the Indiana Court of Appeals is titled Morrison v. Sadler. Earlier Indiana Law Blog entries may be found here: 2/27/04, 2/16/04, 2/4/04 (comprehensive), 1/13/04 (comprehensive), 1/8/04, and 12/14/03. Morrison v. Sadler was argued before Judges Friedlander, Kirsch and Barnes on 1/12/04. Many of the documents in the case can be found here.

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to Indiana Decisions

Indiana Decisions - [Updated] 7th Circuit posts four rulings

Note: The CA added three more cases to its site to go along with the first, which I had blogged here earlier today.

Frederiksen, Michell v. Caneva, Ron (ND Ill.)

Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. A state court authorized the demolition of plaintiffs building in Lockport, Illinois. Lockport v. Talano, 318 Ill. App. 3d 1241, 789 N.E.2d 944 (3d Dist. 2000) (unpublished). The ex-owners have filed eight federal suits under 42 U.S.C. 1983 contesting the condemnation and associated steps, such as inspections. We held in the first of these suits that federal courts lack jurisdiction, because only the Supreme Court of the United States may review decisions of state courts in civil litigation. See Talano v. Lockport, No. 00-1697 (7th Cir. Apr. 26, 2001) (unpublished order relying on Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)). That did not stop the ex-owners. Surprisingly, none of the more recent seven suits has ended in sanctions for vexatious litigation. Perhaps that is because the federal defendants have taken to ignoring them and thus incur few costs; in this appeal only one of the many defendants bothered to file a brief. * * *

Plaintiffs appellate brief reveals that this is frivolous and vexatious litigation. Legal disputes must be resolved in a single proceeding. Nine suitsone in state court, eight in federal courtis eight too many. We will issue an order under Rule 38 directing them to show cause why they should not be sanctioned. [cites omitted] The reason why we are issuing a published opinion, however, is to clean up an inconsistency in the district courts handling of the suit, and in our own precedents.

The Rooker-Feldman doctrine is a rule of federal jurisdiction. A suit dismissed for lack of jurisdiction cannot also be dismissed with prejudice; thats a disposition on the merits, which only a court with jurisdiction may render. See Johnson v. Wattenbarger, 361 F.3d 991, 993 (7th Cir. 2004). No jurisdiction and with prejudice are mutually exclusive. * * *

Russell, William v. Richards, J.D. (SD Ind., Judge Tinder)
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Plaintiffs William Alan Russell and Mark E. Garriott were incarcerated in the Johnson County, Indiana, jail in 2001. They filed this suit pursuant to 42 U.S.C. 1983 against then-Sheriff J.D. Richards, contending that the jails policy of directing incoming inmates to use a delousing shampoo violated their Fourteenth Amendment due process right to be free from unwanted medical treatment. The district court entered summary judgment in favor of Richards. We affirm.
USA v. Morgan, Frederick J. (ND Ind., Judge Lee)
Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. After police in Fort Wayne, Indiana, arrested George Perrin for selling cocaine, Perrin agreed to help mount a sting operation against Frederick Morgan. * * * Although Morgan was represented by counsel in the district court, he has since fired both of his attorneys and now appeals pro se, arguing that a host of errors led to his convictions. * * * Affirmed.
City of Chicago v. US TREASURY ATF (ND Ill.)
Before BAUER, ROVNER and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. The City of Chicago (the City) seeks information from a federal database regarding the sale of firearms and the tracing of firearms that have been recovered by law enforcement. Two and a half years ago we first heard this case and considered whether the Bureau of Alcohol Tobacco and Firearms (ATF) could refuse to release the information to the City based on certain exemptions in the Freedom of Information Act (FOIA). Following our decision that ATF must release the information, ATF appealed and the Supreme Court granted certiorari. While that appeal was pending, Congress passed the Consolidated Appropriations Resolution of 2003 which ordered that no funds . . . shall be available to release the records in question. This case now comes to us on remand from the Supreme Court in order to determine what effect, if any, 644 of the Consolidated Appropriations Resolution of 2003 has on this case. We find that the statutes in question preclude the use of federal funds for the retrieval of the information but do not substantively change the FOIA; accordingly, ATF must provide the City access to the databases.

Posted by Marcia Oddi on Thursday, September 16, 2004
Posted to Indiana Decisions

Wednesday, September 15, 2004

Indiana Law - Lake County appears to be the national poster-child for absentee vote fraud

Monday the NY Times published a lengthy feature on vote fraud, headlined "FRAUD: Absentee Votes Worry Officials as Nov. 2 Nears." Some quotes:

As both major political parties intensify their efforts to promote absentee balloting as a way to lock up votes in the presidential race, election officials say they are struggling to cope with coercive tactics and fraudulent vote-gathering involving absentee ballots that have undermined local races across the country. * * *

The increasing popularity of absentee voting is reshaping how and when the country votes. Since the last presidential election, a growing number of election officials and party operatives have been promoting absentee balloting as a way to make it easier for people to vote and alleviate the crush of Election Day. At least 26 states now let residents cast absentee ballots without needing the traditional excuse of not being able to make it to polling places. That is six more states than allowed the practice in 2000.

As a result, as many as one in four Americans are expected to vote by absentee ballot in the presidential race, a process that begins today, nearly two months before Election Day, as North Carolina becomes the first state to distribute ballots.

But some experts say that concerns about a repeat in problems with voting machines is overshadowing the more pressing issue of absentee ballot fraud. * * *

"Loosening the absentee balloting process, while maybe well intentioned, has some serious consequences for both local races and the general election," says Todd Rokita, secretary of state in Indiana, where fraud investigations are under way in at least five communities.

The more blatant cases of criminal misconduct have prompted some state officials to seek new legal powers in fighting fraud, including making it a crime to lie about not being able to vote in person in those states that require an excuse.

A Matter for the States

The Justice Department says the Constitution mandates that states run elections, and it generally can intervene only on civil rights matters like ensuring that non-English-speakers are not excluded.

In the mayoral race last year in East Chicago, Ind., federal officials declined to act on the pleas of one candidate's supporters, who foresaw trouble in absentee voting. Two weeks before the election, in the Democratic primary, the campaign of the challenger, George Pabey, was tipped to shenanigans, and his supporters asked the United States attorney there to safeguard the balloting. The prosecutor referred the matter to the Justice Department's civil rights division, which did not show up until a year later, to monitor a different election.

Mr. Pabey lost the race. Last month, the state Supreme Court voided the election after a judge found that the "zealotry to promote absentee voting" resulted in residents being coerced into voting with offers of jobs and other assistance.

There are now criminal investigations of the election by local, state and federal authorities, with five people already charged. Some voters who agreed to vote absentee in return for polling-place jobs say they had no idea this was improper.

"That's how I thought it was, you get paid to vote," Larry Ellison of East Chicago, 32, said in a recent interview, adding that he needed the $100 he received for his vote to buy medicine for his seizures.

Today the Chicago Sun Times has this commentary titled "Too much fraud showing up with absentee voting." It begins:
You'd think Robert Pastrick wouldn't have any anxiety about being re-elected as mayor of East Chicago: He has had a firm lock on that position since 1971. But even a long-seated mayor, it seems, isn't immune to illegally twisting arms to get back into office. Last month, the Indiana Supreme Court said the city's mayoral primary was so tainted by fraudulent absentee ballots that a new election is necessary.

The court said Pastrick's supporters knowingly manipulated voters who were in ill health or financially disadvantaged; they wrongfully assisted voters in the completion of their ballots and delivered the ballots to election officials. Some voters were offered cash or jobs if they cast their vote the ''right'' way -- that is, in Pastrick's favor. Some putative polling booths were located in abandoned buildings and vacant lots. The abuses were stunning and egregious in their transparency: Pastrick's opponent, Democrat George Pabey, was ahead by 278 votes until the absentee ballots were counted. Then he was out on his ear. The Indiana court, bemused by such flagrant illegalities -- what it called the ''zealotry to promote absentee voting'' -- wisely ordered a new election for October.

This kind of criminal behavior isn't resident in Indiana alone. The New York Times recently investigated absentee voting and concluded there was lots of room for vote manipulation when a person doesn't have to show up at a polling booth and can mail or send in his ballot. The newspaper reported that in the last four years prosecutors have filed criminal cases in at least 15 states as a consequence of fraudulent absentee voting. * * *

Posted by Marcia Oddi on Wednesday, September 15, 2004
Posted to Indiana Law

Indiana Decisions - Two from Court of Appeals Today

In the Matter of the Commitment of Martin Golub v. Dr. David Giles, M.D. and Gallahue Mental Health Services (9/15/04 IndCtApp) [ ]
Baker, Judge

Appellant-Respondent Martin Golub appeals an order involuntarily committing him to a mental health facility as an in-patient. Specifically, Golub argues that (1) appellees-petitioners Dr. David Giles, M.D. and Gallahue Mental Health Services (collectively, Dr. Giles) did not present sufficient evidence of a grave disability as defined by Indiana Code section 12-7-2-96 to satisfy the commitment requirements; and (2) the special conditions of the commitment prohibiting Golub from consuming alcohol and drugs and harassing or assaulting his family members were improperly imposed because they were not requested by Dr. Giles, and they bore no relationship to the reasons for Golubs commitment.

Finding that there was sufficient evidence of a grave disability, we affirm the order of commitment. We also find, however, that all of the special conditions were improperly imposed as they relate to Golubs in-patient care and that the special conditions prohibiting Golub from consuming drugs and alcohol was also improperly imposed as it relates to Golubs out-patient care. We therefore reverse that portion of the order and remand this cause to the trial court with instructions that it strike all special conditions from the order of commitment insofar as they apply to Golubs in-patient care and to strike the special condition preventing Golub from consuming drugs and alcohol from the order of commitment altogether. * * *

The judgment of the trial court is affirmed in part and reversed in part with instructions to strike all special conditions from the order of commitment insofar as they apply to Golubs in-patient care and to strike the special condition prohibiting Golub from consuming alcohol and drugs from the order of commitment altogether.
KIRSCH, C.J., and ROBB, J., concur

Jason Rhea v. State of Indiana (9/15/04 IndCtApp) [Criminal Law & Procedure]
Kirsch, Judge
Following retrial, Jason K. Rhea appeals his conviction for conspiracy to commit robbery as a Class A felony. See footnote On appeal, he raises four issues for review, one of which we find dispositive: whether the trial court abused its discretion during Rheas second trial by admitting a transcript of testimony given by a witness at the first trial, after declaring that witness unavailable to testify. We reverse and remand. * * *

While the trial court pursued a novel approach to the thorny problem of Sadlers refusal to testify, Sadlers testimony was improperly admitted as a hearsay exception. As noted above, for prior testimony to be admitted under a hearsay exception, the testimony must have been given under oath at a prior judicial proceeding; the party against whom the testimony is offered had to have had the opportunity to cross-examine the witness at the prior proceeding; and the witness is unavailable at the time of the later proceeding. While Sadler was under oath at Rheas first trial, and found to be unavailable at his second, our court determined in Rheas first appeal that Rhea did not have a sufficient opportunity to cross-examine Sadler; therefore, Sadlers testimony was not admissible at Rheas second trial.

We appreciate the balancing process the trial court undertook to try to preserve the rights of each party. Nevertheless we find it was error for the trial court to allow the transcript of Sadlers testimony from Rheas first trial to be admitted at his second trial.

In the first appeal, our court concluded that, notwithstanding the error of the trial court, the State presented evidence that Rhea agreed with Sadler to commit the robbery sufficient to support the conspiracy conviction. Therefore, retrial with respect to the conspiracy charge is not barred. Reversed and remanded.
BAKER, J., and ROBB, J., concur.

Posted by Marcia Oddi on Wednesday, September 15, 2004
Posted to Indiana Decisions

Indiana Decisions - New postings on the SD Indiana site

Several recent rulings by Judge Sarah Evans Barker have been posted on the Southern District of Indiana website.

An Indiana Law Blog posting of August 30, 2004, titled "Federal court upholds Indianapolis' ordinance re adult businesses," reported on Judge Barker's 8/27/04 decision in Annex Books v. Indianapolis. You may now access the 30-page ruling here. It concludes:

In summary, for the reasons stated above, we DENY Plaintiffs [Annex Books'] Motion for Summary Judgment and GRANT Defendants [City's] Motion for Summary Judgment on the first and second grounds (judicial review, licensure and premises requirements) and DENY the motion on the third ground relating to the unconstitutionality of warrantless inspections.
Also posted is this 9/13/04 entry of Judge Barker in the same case, which reads in full:
This matter comes before the Court on Plaintiffs Motion to Stay the Enforcement of the Judgment entered by this court on August 27, 2004 regarding the constitutionality of Chapter 807 of the Indianapolis Revised Code regulating, inter alia, the licensing and operation of adult businesses. For the reasons that follow, we GRANT a limited stay to enforce the judgment in effect to and including October 1, 2004.

Pursuant to Fed. R. Civ. P. 62(b), whether to stay the execution of any proceedings to enforce a judgment pending the disposition of a motion to alter or amend a judgment made pursuant to Fed. R. Civ. P. 59 is left to the sound discretion of the Court. Plaintiffs filed such a Rule 59 motion on September 8, 2004, but we received the final briefing on the issues only today, September 13, 2004, the very day that the ten-day stay agreed to by the City on August 30, 2004 expires.

We recognize a stay to enforce the judgment regarding Chapter 807 of the Revised Code is entirely in the Plaintiffs interest. We do not condone their approach in filing the motion and final briefs in so dilatory a fashion or in their submitting final briefings which appear to expand substantially the scope of the issues we addressed in the August 27, 2004 order. Nevertheless, we feel impelled to grant a limited stay of the judgment entered by this Court on August 27, 2004 to allow the Court to fully address the issues raised therein, which we expect to be able to accomplish by no later than October 1, 2004.

Also posted is Smith v. Potter (8/27/04), in which Plaintiff alleges gender-based harrassment and discriminatory termination against her employer, the US Postal Service, and Judge Barker grants Defendant's motion for summary judgment and directs entry of final judgment in Defendant's favor.

Another ruling, dated 8/27/04, is in Goodman v. U.S., which begins:

This matter comes before the Court on Defendant United States Motion to Dismiss Plaintiffs Mark Goodman, Karen Goodman, and L.G.s (the Goodmans) claims alleging that the Federal Highway Administration (FHWA) negligently and in violation of statutes and regulations approved an Indiana Department of Transportation (INDOT) project that installed warning signs at railroad grade crossings under 23 C.F.R. 646.214(b)(3) and (4). The Goodmans filed suit against the United States for damages in tort related to an accident allegedly caused by inadequate warning signs at a railroad grade crossing which had been approved by FHWA and installed by INDOT. The United States, however, contends that it is not a proper defendant to this lawsuit as it has not waived sovereign immunity under the Federal Tort Claims Act (FTCA). For the reasons explained below, we agree and therefore GRANT Defendants Motion to Dismiss.

Posted by Marcia Oddi on Wednesday, September 15, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts three today

Brown, Johnnie v. Argosy Gaming Co (SD Ind., Judge Barker)

Before POSNER, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. According to Ms. Johnnie Brown, the plaintiff-appellant, her husband has a problem with gambling. The Browns live in Cincinnati, Ohio, which is approximately twenty minutes from the defendant-appellees casino, the Argosy Casino, in Lawrenceburg, Indiana. * * *

Brown filed suit in the district court of the Southern District of Indiana, claiming that Argosy was negligent in its failure to exercise reasonable care after being notified that her husband was a compulsive gambler and was continuing to gamble at the peril of his family. Brown initially sought injunctive relief and damages. A few days after filing the complaint, Brown filed a motion to certify to the Indiana Supreme Court the state law question raised by her complaint. In response, Argosy filed a motion to dismiss and in opposition to the motion to certify. The District Court judge granted the motion to dismiss and denied Browns motion to certify and her motion for preliminary injunctive relief. Brown appealed only the denial of the motion to certify the following question to the Indiana Supreme Court:

Whether a wife has a cause of action against a casino where a husband is a compulsive gambler, where the husband has incurred substantial gambling losses, which occurred after the wife made a request to the casino to bar her husband, and which resulted in serious emotional and financial distress to the family.
We dismissed the appeal, noting the two procedural gaps that denied us jurisdiction. First, the district court below granted Argosys motion to dismiss without prejudicea non-final, non-appealable judgement. Brown v. Argosy Gaming Co., 360 F.3d 703, 705 (7th Cir. 2004). Second, we concluded that an order refusing to certify a question to a state supreme court was not an independently appealable order, and that the litigant whose motion to certify has been denied may appeal the denial of the motion along with the remainder of the final order. We noted that [c]ertification is meaningless without a viable cause of action in which to use the answer received from the state supreme court.

Notwithstanding these statements, Brown is before us again appealing only the denial of the motion to certify. * * *

Although we agree that gambling addiction and its attendant costs to families and society are matters of public concern, and we note that the question would be one of first impression for the Indiana Supreme Court, this case is not otherwise worthy of certification. As we have already discussed, it is not outcome determinative. Furthermore, intermediate courts of the state are not in disagreement, and there is little uncertainty regarding the issue. * * *

For all of the reasons that we refuse to certify this matter to the Indiana Supreme Court pursuant to our own Circuit Rule 52, we hold that the district court judge did not abuse her discretion in coming to the same conclusion.

For this reason we AFFIRM the district courts denial of the motion for certification and deny Browns motion for certification pursuant to Circuit Rule 52. Brown is to pay costs of this (second) appeal. AFFIRMED.

USA v. Fiedeke, Steve (ND Ind., Judge Sharp)
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
BAUER, Circuit Judge.
I. Background. Defendant-Appellant Steve Fiedeke and a business partner, Tim Pinnick, purchased a wholesale distribution company in January, 2002. Fiedeke and Pinnick planned to sell various products to convenience stores throughout Northern Indiana. One of the products they sought to sell was ephedrine, a federally regulated List I chemical. The federal regulations require a prospective seller to obtain a license from the Drug Enforcement Administration (DEA). Failure to obtain a license and then selling is a crime. * * *

This court will not disturb a criminal conviction based upon problems with the jury instructions unless we believe those instructions prejudiced the defendant. Because it clear that Fiedeke was not an agent of a licensed ephedrine distributer, any inadequacies in the agency instruction could not serve to prejudice his case. * * * For the reasons stated herein, we AFFIRM.

Morales-Morales v. Ashcroft, John D. [Petition for Review of an Order of the Board of Immigration Appeals]
Before FLAUM, Chief Judge, and DIANE P. WOOD and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Celia Morales-Morales (Morales) is a Mexican citizen who has resided in the United States since her original entry without inspection [i.e., illegally] 1986. After briefly returning to Mexico to attend to her gravely ill mother, Morales repeatedly and unsuccessfully attempted to reenter the United States in March 1999. Ultimately, she was arrested and convicted for the latter attempt. Upon Moraless release from imprisonment, the Immigration and Naturalization Service (INS)1 initiated removal proceedings, and Morales in turn applied for cancellation of removal. The Immigration Judge (IJ) ruled that Moraless brief absence from the country rendered her ineligible under the statute for cancellation of removal, and on that ground only, rejected her petition. The Board of Immigration Appeals (BIA) affirmed without opinion under its streamlining procedure. Because we conclude that the statute did not preclude this relief for Morales, we grant her petition for review and remand for further proceedings.

Posted by Marcia Oddi on Wednesday, September 15, 2004
Posted to Indiana Decisions

Indiana Decisions - Update on Flawed Bingo Rules

The Indiana Law Blog last reported on August 11th that a trial court had thrown out new state bingo rules that required bingo halls to give more money to charity. The reason was that one of the steps in the rulemaking process hadn't been followed. The Aug. 11th entry includes a copy of Judge Dreyer's 7-page order.

Today the Fort Wayne Journal Gazette reports:

The Indiana Attorney Generals Office has filed a notice of intent to appeal a Marion Superior Court ruling that stalled rules governing how much money bingo parlors should give to charity. The notice, filed on behalf of the Indiana Department of Revenue, does not mean an appeal is certain. Larry McKee, deputy commissioner of the revenue department, said Tuesday the notice is designed to keep the states options open. Those options, he said, could include an appeal, going through the entire rules adoption process anew or satisfying the technicality that quashed the rules. * * *

Both sides seem unwilling to budge. John Gahan, manager of American Legion Post 330 in New Haven and secretary-treasurer of a statewide advocacy group called the Indiana Charitable Alliance, said he believes resurrecting the rules would be ridiculous.

Its always been one-sided with Mr. McKee, Gahan said. I dont really understand it myself. I think he took it personal. Countered McKee: I have not taken anything personal. Whats there to take personal?

Gahan and Indianapolis attorney Marilyn Moores, who represents the charity gaming groups, said they believe McKee hasnt actually appealed yet because he wants to skirt controversy in the heat of down-to-the-wire election campaigning. Im not sure that I would want to be perceived as thwarting what is, for a lot of folks, their pastime and their social life in a politically charged year, Moores said. McKee said the political climate had nothing to do with filing just an intent to appeal.

Gahan and Moores also said the revenue department has legislative sanction to regulate only net proceeds, not gross receipts. McKee disagrees. Gahan and Moores have hinted that the matter should be decided by the legislature, although a state legislative study panel considered the issue late last month and took no action. The way things move, McKee said, Im sure theyll have their chance next year to (have legislators consider it.)

Posted by Marcia Oddi on Wednesday, September 15, 2004
Posted to Indiana Decisions

Tuesday, September 14, 2004

Indiana Decisions - "Diminshed value" class action decision concerns insurers

The Insurance Journal has a story today headlined "Ind. 'Diminished Value' Class-Action Case Could Set Dangerous Precedent, Insurers Argue" that begins:

Indiana Supreme Court justices should carefully consider the impact that a class-action case regarding compensation for the diminished value of a vehicle could have on numerous insurance policies and premiumsand ultimately reject the lawsuit, according to an amicus brief filed this month by a coalition of insurance industry lobbyists.

In Christina Allgood v. Meridian Security Insurance Co., the Court of Appeals held that Meridian's auto insurance policy requires Meridian to pay not only the cost of repairs, but also an additional amount for the "diminished value" that damaged vehicles allegedly may suffer even after being completely and properly repaired.

However, insurers argue that Meridian's policy language explicitly limits its liability to either the vehicle's actual cash value or the amount necessary to repair or replace the vehicle's damaged parts with repair parts of like kind and quality, whichever is less. * * *

"Only 10 states recognize the concept of diminished value, and Indiana shouldn't take that route," said Robert Hurns, PCI counsel and legislative database manager, in a statement. "There is an overwhelming trend reflected in recent court decisions around the nation that diminished value is not recoverable under policies limiting insurer liability to the cost of repairs. In the past three years, six state supreme courts have rejected coverage for 'diminished value,' and the Indiana Supreme Court should do the same."

Meridian's clear policy language regarding insurer's liability in repairing damaged vehicles is also very similar to many other carriers' auto policies. Therefore, the court's decision is likely to have a far-reaching impact on insurers who offer auto coverage in Indiana and on the premiums they charge to policyholders, Hurns said.

"This case could set dangerous precedent by conceivably forcing insurers to pay diminished value damages for past claims even though they have not received premiums to account for such payments," Hurns said.

Currently, according to the case docket, a motion for transfer to the Indiana Supreme Court is pending in Allgood v. Meridian Security Insuance [49 A 02 - 0307 - CV - 00580]. The original Court of Appeals decision in Allgood may be found here (6th case), in this 4/28/04 ILB entry. A case following Allgood, dated 6/21/04, Dunn v. Meridian Mutual, may be found here. And the 8/4/04 Court of Appeals opinion on rehearing, where the panel reaffirmed its original decisions, with the same 2-1 split, is available here.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Indiana Decisions

Law - Great Lakes: access to shorelines varies by state

The Chicago Tribune reports that the "Fight over access to Great Lakes shoreline [is] playing out in courts." Cases in Michigan and Ohio "have grown into a fight over public access to hundreds of miles of picturesque Great Lakes shoreline."

The Michigan dispute started four years ago in Alcona County, 200 miles north of Detroit. Glass trimmed bushes in her easement along the Lake Huron shore. Neighbors Richard and Kathleen Goeckel objected to the bush trimming and told Glass she was no longer welcome to walk the beach in front of their home. Glass sued, had her beachcombing rights restored by a local court, but lost those rights again with the appeals court ruling.

The Goeckels could not be reached for comment. But they have many defenders awaiting the Michigan Supreme Court's decision, as early as this fall, on whether to weigh in on Glass vs. Goeckel. A wide coalition of bankers, resort owners and the Michigan Chamber of Commerce argues that the need for "stable and predictable property ownership laws" requires that the appeals court decision be upheld.

Environmentalists "make it out like we want to put fences up to the water's edge - and that's not the intent at all," said Ernie Krygier, president of Save Our Shoreline, a property rights group boasting some 2,000 members throughout the Great Lakes basin. "It's all about principle," said Krygier, who lives on Lake Huron's Saginaw Bay. "If there are 100 homes on the water, you might have one goofy enough to want to keep people off the beach."

Joel Brammeier, manager of habitat programs for the 1,000-member Lake Michigan Federation in Chicago, said "a grand tradition of beach walking" along the Great Lakes is at stake.

If the state Supreme Court takes the case, justices could rule anywhere between granting visitors the right to legally meander the full beach to specifically allowing beach blockades.

The story goes on to report that:
While the public's right to the waters of the Great Lakes is unquestioned, beach access varies from state to state.

Michigan law was unclear before Glass vs. Goeckel. Some jurisdictions enforced a water's-edge boundary, while open beachcombing was the informal rule in many locales. In Illinois and Wisconsin, the law is the same as what the Michigan court recently ruled: Walkers along private beaches are not trespassing as long as they keep their feet wet. Indiana allows public access up to the ordinary high-water mark of Lake Michigan.

In Ohio, Lake Erie cottage owners are suing the state Department of Natural Resources to end public ownership claims up to the high-water mark, or gain compensation for the state "taking" of beaches.

"Basically, we're trying to get our deeds honored," said Tony Yankel, president of the Ohio Lakefront Group. Many of his members have property titles that specifically grant ownership to Lake Erie's low-water mark--in some cases, actually into the lake itself.

"People want the right to kick people out," he said, seeking to stop intruders at his beach in Cleveland's west suburbs. They have vandalized his Jet Ski and left behind condoms and broken beer bottles.

If the property owners win, "it would make it illegal for the average Ohioan to walk the beach--a right they've enjoyed for more than 200 years," said Jim Lynch, a Department of Natural Resources spokesman. * * *

Police in southwest Michigan said they're eagerly awaiting a final word from the state Supreme Court. In New Buffalo, Police Chief Larry Pitchford said he's most worried about a ruling to officially allow visitors up to the high-water mark--a line in the sand much closer to territorial cottage owners.

"The homeowners would just be up in arms," he said. "We even get calls from people complaining about how loud the boats are out in the water. We have instances where owners just don't want anyone in front of their homes, not even in the water."

Go here to access the May 17th Indiana Law Blog entry reporting on, and linking to, Michigan's 5/13/04 appellate court ruling in Glass v. Goeckel.

[More] See also this story that begins:

Like a boulder crashing into a quiet pond, the recent Michigan Court of Appeals ruling against Great Lakes beachcombing is making big waves across the Great Lakes Basin. The Appellate Court decision, Glass v. Goeckel, has delighted property rights activists in the state, motivated property rights groups in other Great Lakes states to bring the new doctrine to their own beaches, and even attracted support from some Michigan environmentalists.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to General Law Related

General News - Ed Feigenbaum in intensive care

My friend, and a friend to many of you readers, Ed Feigenbaum, INGROUP Publisher, Editor and Writer, was in an accident Saturday, September 11th and is recovering in intensive care at Methodist. The details of the accident, but not the names of those injured, were published in the Indianapolis Star on Sunday in a story headlined "Mattress on I-69 causes accident: 2 hurt in crash that closes highway near 96th Street for 3 hours."

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to General News

Indiana Decisions - 7th Circuit posts six today

USA v. Pree, Bette J. (CD Ill.)

Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Bette J. Pree was indicted by a grand jury for one count of failing to file a tax return for the tax year 1994, in violation of 26 U.S.C. 7203, and two counts of filing false tax returns for the tax years 1995 and 1996, in violation of 26 U.S.C. 7206(1). After trial, a jury found Ms. Pree not guilty of the failure to file charge but guilty of both counts of filing false tax returns. Ms. Pree appeals the convictions. For the reasons set forth in the following opinion, we affirm the judgment of conviction but vacate the sentence and remand the case to the district court for resentencing. The mandate of the court is stayed pending the Supreme Courts decision in United States v. Booker, No. 03-4225, 2004 WL 1535858 (7th Cir. July 9, 2004), cert. granted, 73 U.S.L.W. 3073, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No.04-104). * * *

D. Sentencing Enhancement. As a final matter, we address an issue not raised by the partiesthe constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Prees case was briefed and argued prior to the Supreme Courts decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Following the Courts decision in Blakely, this court held in United States v. Booker, No. 03-4225, 2004 WL 1535858 (7th Cir. July 9, 2004), cert. granted, 73 U.S.L.W. 3073, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-104), that enhancements imposed by the court without a jury finding violate the Sixth Amendment.

Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. See United States v. Seacott, 15 F.3d 1380, 1383 (7th Cir. 1994). Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.

The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this courts decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Courts decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case.17

Conclusion. Accordingly, we affirm the judgment of conviction but vacate the sentence and remand the case to the district court for resentencing. The mandate of the court is stayed pending the Supreme Courts decision in Booker. AFFIRMED IN PART; VACATED IN PART
17 It appears that Ms. Prees enhanced sentence will be completed prior to the decision of the Supreme Court. Any matter with respect to bail should be addressed to the district court.

Sullivan, Jeffrey J. v. Bornemann, Jon (ED Wis.)
Before FLAUM, Chief Judge, and POSNER and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge. After Jeffrey Sullivan was arrested for disorderly conduct, the Shawano County Jail in Wisconsin refused to admit him without a medical clearance, because of his high breathalyzer test result. To obtain that clearance, officers Jon Bornemann and Ed Whealon took Sullivan to the emergency room of a local hospital. After Sullivan failed voluntarily to produce a urine sample, the emergency room doctor ordered a catheterization. At the direction of medical personnel, Bornemann and Whealon physically restrained Sullivan during the brief procedure.

Believing that the officers actions violated his constitutional rights, Sullivan brought suit under 42 U.S.C. 1983 and added a supplemental battery claim under Wisconsin law. Ruling on stipulated facts, the district court concluded that even if Bornemann and Whealon were not authorized to restrain Sullivan, qualified immunity shielded the officers from any liability. We affirm the judgment based on our conclusion that no constitutional violation occurred, which makes it unnecessary for us to reach the second part of the qualified immunity inquiry.

Schimmer, Donald v. Jaguar Cars Inc (ND Ill.)
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
KANNE, Circuit Judge. On January 15, 2000, Donald Schimmer bought a new 2000 Jaguar XK8, manufactured by Jaguar Cars, Inc., from Towne & Countree Auto Sales, Inc. Schimmer paid the $69,513.00 purchase price in cash. * * * Schimmer encountered various problems with the XK8 and took the car to authorized Jaguar dealerships for repairs under the manufacturers warranty on numerous occasions.

After the dealers were unable to repair the XK8 to Schimmers satisfaction, Schimmers lawyer notified Jaguar, in a letter dated November 6, 2001, that Schimmer had revoked his acceptance of the vehicle. Jaguar refused to accept Schimmers revocation. Subsequent to the purported revocation, the XK8 has remained in storage. * * * Jaguar filed a timely notice of removal to federal district court on March 17, 2003, asserting that the court had federal subject-matter jurisdiction under the Magnuson-Moss Act. Once in federal court, Jaguar moved to dismiss Counts II and III of the complaintSchimmers breach of implied warranty and revocation claims under the Magnuson- Moss Actas well as Count IV, the state law claim. * * *

[W]e find that this case was improperly removed from state court and must be dismissed for lack of subject-matter jurisdiction.

III. Conclusion. Because the amount in controversy cannot exceed $50,000 to any legal probability, there is no federal subject-matter jurisdiction for Schimmers claims under the Magnuson-Moss Act. Without federal subject-matter jurisdiction, there can be no supplemental jurisdiction to consider the district courts interpretation of the Illinois Lemon Law. We VACATE the district courts decision and REMAND with instructions to dismiss for lack of subject-matter jurisdiction.

C. Etta v. Barnhart, Joanne B. (CD Ill.)
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. [Social Security disablity claim.] * * * For the foregoing reasons, although we sympathize with Ms. Rice due to her indubitably trying condition, the district courts judgment is AFFIRMED.

ROVNER, Circuit Judge, concurring in the judgment. I agree that the case may be summarily affirmed on the basis of the inadequately explained Circuit Rule 30 violation and I therefore concur in the judgment. As for the merits of the case, I cannot agree that the ALJs decision was supported by substantial evidence. The ALJs reasoning was thin at best, and contained a substantial error that even the SSA acknowledged on appeal. * * *

Holmes, Rochester v. Potter, John E. (ND Ind., Judge Moody)
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Rochester Holmes filed an action in the district court claiming discrimination, retaliation and breach of a settlement agreement. The district court disposed of the discrimination and retaliation claims though the entry of summary judgment against Holmes. A bench trial on the breach of a settlement agreement ended in favor of the Defendant. Holmes appeals. * * * Affirmed
Conder, Agnes v. Union Planters Bank (SD Ind., Judge Tinder)
Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. This appeal from the dismissal of a diversity suit (governed by Indiana law) for failure to state a claim requires us to consider a banks liability to victims of a Ponzi scheme for allowing checks made out to the malefactors to be deposited without proper endorsements. * * * Affirmed.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Indiana Decisions

Environment - Blagojevich targets medical incinerators

"Blagojevich targets medical incinerators: Burning banned at Evanston Hospital" is the headline to this lengthy story today in the Chicago Tribune that begins:

Prompted by neighborhood activists pushing to close Evanston Hospital's medical-waste incinerator, Gov. Rod Blagojevich on Monday urged the state's last remaining hospital-trash burners to shut down.

Most hospitals got out of the business of burning waste years ago after concerns about cancer-causing dioxins from incinerators led the U.S. Environmental Protection Agency to require a dramatic reduction in air pollution from trash burners.

But Illinois still has 12 such incinerators, five of which are in densely populated neighborhoods of suburban Chicago. Nearly 28,000 people live within a half-mile of one of the state's medical-waste burners, according to a Tribune analysis.

"Hospitals are supposed to provide health care, and hospitals are supposed to promote health care," Blagojevich said at a news conference a few hours before the Evanston City Council passed an ordinance that bans medical-waste incineration within city limits. "Hospitals are supposed to not undermine public health."

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Environmental Issues

Indiana Law - Educate all on Safe Haven Law

"Educate all on Safe Haven Law" is the headline to an editorial today in the Fort Wayne Journal Gazette. Some quotes from the beginning of the piece:

When a distraught mother left a baby boy at the fire departments administration offices last week, she demonstrated that Indianas Safe Haven law protects babies lives. Although it is only the second case in Allen County since the law took effect four years ago, those two lives more than justify the laws existence.

Saddened by stories of mothers killing or dangerously abandoning unwanted babies, state legislators wanted to give such desperate mothers an alternative. Under the law, mothers can anonymously drop babies off at a hospital, fire station or police station without fear of prosecution as long as the baby has not been abused and is no older than 45 days. In last weeks case, it worked.

The case also highlights some potential problems that local officials need to address to make sure that the law continues to protect Indianas infants. Police, in their concern for the babys health, may have unintentionally overlooked the laws provision to protect a parents confidentiality by conducting a search for the mother.

Police had only the best intentions in conducting this search, but knowing police might search for a mother after dropping off a child under the laws guidelines could have a chilling effect on women in trouble and might discourage them from using the law. Frightened parents need to know that the police will not only protect the babys well being but the parents privacy as well.

Here is a link to the Safe Haven law, found at IC 31-34-2.5.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Indiana Law

Indiana Courts - Upcoming Court of Appeals Oral Argument

Maureen Hayden of the Evansville Courier-Press has a story today about an upcoming oral argument before a panel of the Indiana Court of Appeals, "in a rare out-of-courtroom hearing conducted at the Indiana University School of Law in Indianapolis." Some quotes:

In essence, what they'll argue is that while Mobley, of Owensville, Ind., fell from Armstrong's car, he was never actually struck by the vehicle. Therefore, there was no accident for Armstrong to leave.

It may be one of the least appealing arguments that Evansville attorney Ivan Arnaez will ever have to make, he concedes.

"It's an emotional case, and our argument will cause a lot of people to be upset," said Arnaez. "Your gut tells you one thing, yet the law says another."

That is, said Arnaez, that his client "knows that under the moral code of law, he should have stopped. He regrets not doing so. But under Indiana law, he didn't have a legal duty to stop, and it's the letter of the law that must be followed."

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Indiana Courts

Law - More on electoral math

Updating the Indiana Law Blog entry from 9/2/04 titled "Electoral math offers number of nightmares" was a story yesterday in the Wall Street Journal (paid subscription required) reporting that Colorado is voting to amend the state constitution to "scrap the winner-take-all allocation of electoral votes practiced by 48 states. Instead, the state's votes would be divided in proportion to the popular vote, which would almost certainly assure Massachusetts Sen. John Kerry of at least four of them."

An AP story reports that:

This year, the Electoral College system is getting a critical look even before the election from voters in Colorado. And what happens here could affect the outcome of the presidential fight between Bush and Democrat John Kerry.

On Nov. 2, voters will consider a proposal to immediately scrap the state's winner-take-all electoral vote system and allow candidates to keep a proportion of the delegates they win. In theory, a candidate could win 55 percent of the statewide vote and get only five of the state's nine electoral votes.

If the proposal had been in place four years ago, Gore would have earned enough electoral votes to go to the White House.

Only two other states divide electoral votes, Nebraska and Maine. Each gives two votes to the winner of each state, and the remaining votes are cast to show who won each congressional district.

Colorado would be the first state to allocate all its electoral votes proportionately according to the popular vote - something supporters say would make every vote count.

"When a winner gets 51 percent and the loser 49 percent, and you give all the electoral votes to the winning candidate, that's not representative government," said Julie Brown, a spokeswoman for sponsors of the initiative.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to General Law Related

Indiana Law - State sex offender registry still not comprehensive

The Munster Times reported yesterday:

Errors and omissions plague Indiana's sex registry, rendering it useless to many residents. The registry was established so residents would be able to see the names, addresses and photos of those convicted of sex crimes living in their communities.

The statewide list is maintained by the Indiana Sheriffs Association, with individual contributions from county sheriff's departments throughout the state.

A Times' review of entries for Lake and Porter counties on the registry late last week showed that of the 410 sex offenders listed as living in the two counties, only 72 photos are posted on-line. And in at least four cases, the wrong photos were posted next to the names of registered offenders in Lake County, raising a question of whether the public can rely on the small percentage of photos posted on the registry.

See also this ILB entry from Feb. 16, 2004.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Indiana Law

Courts - Judge Vaidik honored

"Judge to get women's award: Portage native to be honored for her work on domestic violence issues" is the headline to this story yesterday in the Munster Times. Some quotes:

When Nancy Harris Vaidik served as an assistant prosecutor in Porter County in the 1980s, there were few if any cases filed involving domestic batteries.

It just wasn't something talked about then.

"There's been a whole lot of change since then," said Vaidik, a Portage native and now an Indiana Appellate Court judge.

Vaidik will be honored next month for her efforts in bringing about a change in views involving domestic battery and for assisting women not only in the legal community but in the communities in which she's served.

At a luncheon Oct. 14, she'll receive the Women in the Law Achievement Award presented by the Women in the Law Committee of the Indiana State Bar Association.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Indiana Courts

Environment - Ordinance requires builders to set aside open space

"Compromise on open space law: Developers required to set aside land at residential sites" is the headline to this 9/9/04 story in the Munster Times. Some quotes:

VALPARAISO -- Porter County Board of Commissioners forced a compromise late Tuesday night when it signed off on an amended version of an ordinance requiring developers to set aside open space as part of larger residential developments.

The ordinance calls on developers to set aside 10 percent for open space if a site does not include high priority natural resources, such as wetlands, forestry land or prairies, said Porter County Planner Bob Thompson. If these natural features are present, the open space requirement is bumped up to 20 percent, he said. This differs from the original version of the hotly debated ordinance, which called for a flat 20 percent amount of open space. * * *

Developers failed, however, in a last-minute attempt to include language that would have allowed detention basins to be counted as open space, said Read. The proposal was modified to allow detention basins to be counted if developers are willing to set aside more open space.

The Times also had an editorial on this requirement yestersday. Some quotes:
It has long been apparent that housing is the biggest cash crop in Porter County. Farmland is disappearing. So it is only right that the county require developers to preserve some open spaces while building large subdivisions.

A compromise approved by the Porter County Board of Commissioners late Tuesday night requires developers to set aside 10 percent of a large subdivision for open space. The requirement increases to 20 percent if the site includes high priority natural resources such as wetlands, forest or prairie.

The South Bend Tribune yesterday published a thoughtful letter on development by Merrill Clark, natural resources director for the League of Women Voters of Berrien/Cass Counties (Michiana), that concludes:
As [David] Dempsey stated, "Chasing the old mirage of expanded tax base through relentless development'' is a dead end plan. "Smart growth'' allows for a balance between development, recreation and environmental protection, which promotes overall quality of life for years to come.

For its part, the Niles Township Planning Commission, with its limit on residential development near and around a portion of the St. Joseph river, appears to be looking at the impact unplanned growth might have in that watershed area. The "residential preserve" idea may be good, if complete preservation of river frontage is out of the question. Yet, complainers at the July zoning meeting couldn't stop talking about a retail boom in Niles and the need for more homes.

"When you can only build two houses in an area where you now could build eight, that's definitely an attempt to stop development,'' said a meeting attendee.

Smart growth is not necessarily about "stopping development.'' If communities of thinking people can sit down and look first at the natural assets which bless a particular area and vow to protect them to the degree possible before launching off on plans to take over "country'' and riverbanks and dune areas, they will find their communities unique, green, clean and livable for years to come. Business and home sites will flourish in appropriate areas and Leopold's land ethic will have instilled a sense of stewardship throughout.

Posted by Marcia Oddi on Tuesday, September 14, 2004
Posted to Environmental Issues

Monday, September 13, 2004

Indiana Decisions - One decision today, from Tax Court

Keag Family Limited Partnership v. Indiana Board of Tax Review, et al.

[This opinion, issued as "not for publication" on 7/26/04 (see ILB entry here), has now been reclassified as "for publication."]

Posted by Marcia Oddi on Monday, September 13, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts five today

DFS Secured Healthca v. Caregivers Great Lakes, Inc. (ND Ind., Chief Judge Miller)

Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. This appeal involves a state law claim under Indianas Uniform Fraudulent Transfer Act (IUFTA), Ind. Code 32-18-2-1 et seq. It has long been argued by some that diversity jurisdiction should be limited or even abolished. The proponents of this view argue that the federal courts are overburdened, that they lack expertise in matters of state law and that in most cases, the concern of hometown bias originally driving the establishment of diversity jurisdiction represents no real threat to the parties. While we express no opinion as to whether diversity jurisdiction should be limited generally, we have little doubt that this case would have been better brought in an Indiana state court. This case raises numerous novel questions of Indiana state law, upon which federal courts can provide no more than conjecture as to how the Indiana Supreme Court would hold. The appellee, in oral argument, made it clear that it did not want us to certify any question to the Indiana Supreme Court because of the inevitable delay that would follow. However, it was the appellee that chose to file its complaint in federal court and it was that complaint which sought novel remedies, never previously awarded under Indiana law. R. at 36 (Cplt. 51). Therefore, although we are not fans of delay, it is with limited sympathy that ultimately we must certify several of the questions raised in this appeal to the Indiana Supreme Court. See Stephan v. Rocky Mountain Chocolate Factory, Inc., 129 F.3d 414, 418 (7th Cir. 1997). * * *

[p. 29] In conclusion, we certify the following three questions to
the Indiana Supreme Court:

(1) Can an officer or director of a first transferee under the IUFTA who is found to have personally participated in the fraud be held personally liable under Indiana law on that basis alone?
(2) Is an award of monetary damages under the IUFTA available only where reconveyance of the fraudulently transferred property is impossible or where the subject property has depreciated in value?
(3) Are punitive damages available under the IUFTA?
We invite, of course, the Justices of the Indiana Supreme Court to reformulate our questions if they feel that course is appropriate. We do not intend anything in this certification, including our statement of the questions, to limit the scope of their inquiry. Further proceedings in this court are stayed while the Indiana Supreme Court considers this certification.
USA v. Schaefer, Ronald T. (SD Ind., Judge Barker)
Before CUDAHY, POSNER and KANNE, Circuit Judges.
CUDAHY, Circuit Judge. * * * In the wake of the Supreme Courts
decision in Blakely v. Washington, 124 S.Ct. 2531 (2004) and our application of its principles to the federal sentencing guidelines in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted 2004 WL 1713654 (U.S. Aug. 2, 2004), Schaefer filed a supplemental brief arguing that resentencing is required because in calculating his sentence, the district court relied on facts not found by a jury.

These days it should come as no surprise that our discussion commences with the Supreme Courts recent decision in Blakely and our reading of Blakely in Booker. As we recently observed, the constitutional validity of the Guidelines is in doubt. United States v. Shearer, 2004 WL 1795085, at *3 (7th Cir. August 12, 2004). We continued:

Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendants sentence. As Booker holds, the Guidelines contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment.
Id. In accordance with both Booker and Shearer, we must remand the present case to the district court for resentencing.

Although Blakely and Booker necessitate our remand of this case to the district court for resentencing, we will nonetheless address Schaefers arguments under the Guidelines relating to the loss calculations and upward departures employed by the district court. We do so in the interest of judicial economy in the event that the Supreme Court may subsequently decide some other fate for the federal Guidelines than that indicated in Booker. * * *

In light of Blakely and Booker, this case is remanded for resentencing. However, in the event that the Supreme Court decides that Blakely does not invalidate the federal sentencing Guidelines, we affirm Judge Barkers loss calculation of $81,801 and two of Judge Barkers three onelevel upward departures, and we reverse with respect to the third one-level upward departure for unrealized appreciation. Since the Guidelines level Judge Barker arrived at was 21, whereas Judge Dillins was 20, this would place Schaefer in the same sentencing range as Judge Dillin employed. Since we believe that Judge Barker would likely reimpose Schaefers sentence of 37 months for the same reason she (and Judge Dillin) have previously imposed that sentence, a remand for resentencing in light of the lower applicable Guidelines range is unnecessary. Cf. United States v. Emezuo, 357 F.3d 703, 710-11 (7th Cir. 2003); United States v. Wallace, 32 F.3d 1171, 1174-75 (7th Cir. 1994).* REVERSED and REMANDED for resentencing.
*Schaefer has also requested immediate release under bond from incarceration, since he has already served what would presumably be his sentence if the Guidelines are invalid. Based on the present state of the law in this circuit, this seems to be a meritorious request, but we leave this decision to the district court on remand. In this regard, the district court might wish to take note of Schaefers earlier positions in this case with respect to unchallenged aspects of his sentence. See Booker, 375 F.3d at 510 (interpreting Blakely to allow sentences to be imposed based on what the jury found or the defendant admitted or, as here, did not contest) (emphasis added).

Utility Audit Inc v. Horace Mann Service (CD Ill.)
Before FLAUM, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Horace Mann Service Corporation wanted to save money on its telephone bills. To that end, it hired Utility Audit, Inc. in January 2000 to review past bills for possible overbilling and to recommend ways of saving money in the future. In exchange, Horace Mann agreed to pay to Utility Audit a percentage of any savings realized. But Horace Mann refused to pay Utility Audit any part of the $1.2 million it stood to save after switching long-distance carriers, a move Utility Audit takes credit for recommending. Utility Audit sued, but the district court granted summary judgment to Horace Mann, concluding that under the terms of the parties contract, Utility Audit was not entitled to any of the savings that resulted from the switch in carriers. The court also denied Utility Audits attempt to amend its complaint to add a claim of unjust enrichment. We affirm.
Carter, Kevin C. v. Tennant Company (ND Ill.)
Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. As Kevin Carter discovered in this case, it rarely pays to lie. In applying for a position with Tennant Company, Carter completed a Health History Questionnaire that inquired about his prior workrelated injuries and medical care. Carter failed to report a back injury from an earlier job, an omission that Tennant discovered when Carter filed for workers compensation benefits after re-aggravating the injury while working for Tennant. Shortly thereafter, Tennant dismissed Carter. Carter sued, alleging both that Tennant had discharged him in retaliation for making his workers compensation claims and that Tennants health history questionnaire violated Illinoiss Right to Privacy in the Workplace Act (Privacy Act), 820 ILCS 55/1 et seq. The district court granted summary judgment for Tennant with respect to both of Carters claims. We affirm.
Midway Airlines v. Monarch Air Service (ND Ill.)
Before CUDAHY, COFFEY and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. Unfortunately lacking a crystal ball, in August 1990, defendant Monarch Air Service, Inc. (Monarch) entered into an agreement with Midway Airlines, Inc. (Midway) to provide fueling services for Midways aircraft. These services included, among other things, the management of Midways fuel storage tank farm. * * *

[This is a bankruptcy case that concludes:] We are, frankly, somewhat baffled by Monarchs pursuit of this appeal, given the high costs of litigation and the relatively small amount in dispute. But although we cannot explain Monarchs litigation strategy, we can express a hope that the resolution of this claim will bring Midway Airlines one step closer to terminating its long-standing bankruptcy estate. For the reasons stated above, the district court is AFFIRMED.

Posted by Marcia Oddi on Monday, September 13, 2004
Posted to Indiana Decisions

Indiana Decisions - Court of Appeals issued five last Friday

Joshua Rogers v. State of Indiana (9/10/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

Joshua Rogers appeals his convictions after a bench trial of criminal recklessness as a Class D felony See footnote and battery, as a Class A misdemeanor.See footnote He raises four issues for appeal, which we consolidate and restate as: 1. Whether the trial court properly admitted hearsay testimony based on the excited utterance exception to the hearsay rule; 2. Whether the State presented sufficient evidence to convict Rogers of criminal recklessness; and 3. Whether the trial court erred when it sentenced Rogers.
We affirm in part and reverse in part. * * *

Double jeopardy violation. Rogers also contends the trial court erred in sentencing him for both criminal recklessness and battery because each stemmed from the act of hitting Faith, and he was therefore subjected to double jeopardy. We agree. * * *

Having found a double jeopardy violation, the only remaining determination is the appropriate remedy. When convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. Richardson, 717 N.E.2d at 54. If reducing an offense will not cure the violation, then the conviction with the less severe penal consequences must be vacated. Id. at 54-55. Therefore, we vacate the Class A misdemeanor battery conviction and sentence and leave standing the Class D felony criminal recklessness conviction and sentence. The judgment is affirmed in part and reversed in part.
SULLIVAN, J., and VAIDIK, J., concur.

CWE Concrete Construction Inc. v. First National Bank (9/10/04 IndCtApp) [UCC; Banking]
Vaidik, Judge
CWE Concrete Construction, Inc. d/b/a Elbrecht Concrete and Christopher Elbrecht (collectively, Elbrecht) appeal the trial courts grant of summary judgment in favor of First National Bank (FNB), raising several issues, one of which we find dispositive: whether Elbrechts revolving line of credit had a borrowing base. Because we find that the revolving line of credit did not have a borrowing base, we conclude that Elbrecht was not in default at the time that FNB froze its bank account, accelerated its other loans, and filed its complaint. Consequently, we find that the trial court erred by granting summary judgment in favor of FNB and reverse and remand for further proceedings. * * *

Because we find that the October 2001 Note did not specify or incorporate a borrowing base, we find that the trial court erred in finding that Elbrecht defaulted on the Note by exceeding the borrowing base and entering summary judgment in favor of FNB. Moreover, because a question of fact remains as to whether Elbrecht would have been able to satisfy his obligation under the October 2001 Note when it became due had FNB not frozen the $1 million Elbrecht deposited with FNB and accelerated the other loans, we remand for further proceedings. Reversed and remanded.
SULLIVAN, J., and MAY, J., concur.

Morris L. Percifield v. State of Indiana (9/10/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
In this interlocutory appeal, Morris Percifield appeals the trial courts denial of his motion to suppress. Percifield raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Percifields motion to suppress. We affirm. * * *

In summary, we hold that: (1) after excluding evidence of Percifields tainted admission, there was a substantial basis to conclude that probable cause existed to search Percifields residence, and the trial court did not err by denying Percifields motion to suppress the evidence seized as a result of the search warrant; and (2) I.C. 33-14-1-3 (now I.C. 33-39-1-4) does not prohibit circuit courts from issuing subpoenas duces tecum, and the trial court did not err by denying Percifields motion to suppress his cellular phone records.
For the foregoing reasons, we affirm the judgment of the trial court denying Percifields motion to suppress. Affirmed.
DARDEN, J. and ROBB, J. concur

Jennifer Wilkerson v. Sarah Willis Harvey f/k/a Sarah Willis (9/10/04 IndCtApp) [Torts]
May. Judge
The trial court granted Sarah Harveys request for summary judgment in a negligence suit brought against her by Jennifer Wilkerson for damages Wilkerson suffered in an auto collision with Harvey. Wilkerson raises numerous issues on appeal, which we consolidate and restate as: [1] Whether Harveys alleged failure to drive at an appropriately reduced speed as she approached an intersection raises a genuine issue of material fact about whether Harvey breached a duty to Wilkerson; [2] Whether Harveys alleged failure to operate her motor vehicle at an appropriately reduced speed as she approached a special hazard raises a genuine issue of material fact as to whether she breached a duty to Wilkerson; and [3] Whether Harveys alleged breach of general duties with respect to the operation of her motor vehicle raises a genuine issue of material fact about whether she breached a duty to Wilkerson. We reverse.

[Following fact-based analysis] Reversed.
VAIDIK, J., concurs.
SULLIVAN, J., dissents. [without opinion]

Dennis M. Robinson v. State of Indiana (9/10/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Dennis M. Robinson appeals his conviction for battery on a law enforcement officer as a class A misdemeanor. See footnote Robinson raises two issues, which we restate as: [1] Whether the evidence is sufficient to support his conviction; and [2] Whether the jurys verdicts are inconsistent. We affirm. * * *

The facts that are the subject of the resisting charge are distinct from the facts that are the subject of the battery charge, and the jury could have properly concluded that Robinson was guilty of battery on a law enforcement officer but not guilty of resisting law enforcement. Furthermore, where a defendant is acquitted of some charges and convicted of others, as here, the results will survive a claim of inconsistency where the evidence is sufficient to support the convictions. Here, as we have already held, the evidence is sufficient to sustain Robinsons conviction for battery. Thus, the verdicts on the two offenses are not inconsistent. See, e.g., Jackson v. State, 576 N.E.2d 607, 611 (Ind. Ct. App. 1991) (holding that the defendants conviction for resisting law enforcement was not inconsistent with his acquittal for battery on a police officer).

For the foregoing reasons, we affirm Robinsons conviction for battery on a law enforcement officer as a class A misdemeanor. Affirmed.
BAILEY, J. and MAY, J. concur

Posted by Marcia Oddi on Monday, September 13, 2004
Posted to Indiana Decisions

Saturday, September 11, 2004

Indiana Decisions - Transfer List for Week Ending September 10, 2004

Here is the Indiana Supreme Court's transfer list for the week ending September 10, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.......

Posted by Marcia Oddi on Saturday, September 11, 2004
Posted to Indiana Transfer Lists

Friday, September 10, 2004

Indiana Decisions - Five from 7th Circuit yesterday

Details may follow, possibly next week after a brief late-summer/early fall vacation.


LOPEZ-CHAVEZ, JOSE L v. ASHCROFT, JOHN D. (On Petition for Review of an Order of the Board of Immigration Appeals.)

USA v. ALLEN, DAVID (SD Ind., Judge Hamilton)

Before FLAUM, Chief Judge, and BAUER and SYKES, Circuit Judges.
SYKES, Circuit Judge. David L. Allen was convicted in the Southern District of Indiana of possession of a firearm and ammunition by a felon. He challenges the sufficiency of the governments evidence that he had previously been convicted of a felony. That evidence consisted of a 1995 Indiana abstract of judgment bearing the name David L. Allen and reflecting a felony conviction but containing no other information identifying the defendant. To link the 1995 judgment to Allen, the government introduced a 1999 Indianapolis arrest report bearing Allens thumbprint and a case number that corresponds to the 1995 conviction. Allen concedes that the 1999 document proves that he was arrested that year pursuant to a postconviction warrant issued on the 1995 case. He argues, however, that the arrest report is insufficient to establish beyond a reasonable doubt that he is the same David L. Allen who was convicted in the 1995 case.

The question of the sufficiency of the evidence of a defendants identification to a prior felony conviction is one of first impression in this circuit. Other circuits are split on whether a name alone is sufficient to identify a defendant to a judgment of conviction. The weight of authority, however, is on Allens side. We reverse.

USA v. WASHBURN, SHAWN R. (ND Ind., Judge Sharp)
Before CUDAHY, ROVNER, and DIANE P. WOOD, Circuit Judges.
ROVNER, Circuit Judge. Shawn R. Washburn pleaded guilty to one count of possessing with intent to distribute more than 50 grams of methamphetamine, 21 U.S.C. 841(a)(1), pursuant to a conditional plea agreement. Under the plea agreement, Washburn reserved his right to challenge on appeal the district courts denial of his motion to suppress evidence found during a search of his vehicle on November 6, 2002. We uphold the district courts denial of his motion.

Posted by Marcia Oddi on Friday, September 10, 2004
Posted to Indiana Decisions

Indiana Decisions - Three new opinions yesterday from Court of Appeals

Robert Montgomery v. G. Raymond Trisler (8/9/04 IndCtApp) [Litigation]
Baker, Judge

Almost seventeen years and three appeals later, this case is before us once again. Most recently, in Montgomery v. Trisler, 771 N.E.2d 1234 (Ind. Ct. App. 2002) (Trisler III), we held that appellant-defendant Robert Montgomery was liable for the payment of attorneys fees to the appellee-plaintiff, G. Raymond Trisler, for pursuing a frivolous and meritless appeal with respect to the amount and nature of damages that had been previously awarded. Hence, we remanded the cause to the trial court for a calculation of appellate attorneys fees and damages owed. * * *

Thus, it is apparent that Montgomery has simply continued to raise issues without merit and with little or no regard for our established rules of appellate procedure. Even more telling is Montgomerys continued harassment and accusations against Trisler and others with whom he disagrees. For all these reasons, we find Montgomerys appeal to be frivolous and without merit, and we believe that an award of appellate attorney fees to Trisler is once again warranted in this appeal. For these reasons, we affirm the judgment of the trial court and remand the cause for a calculation of damages to include appellate attorneys fees to which Trisler may be entitled in accordance with Indiana Appellate Rule 66(E). See footnote
Affirmed and remanded.
KIRSCH, C.J., and ROBB, J., concur.

Footnote: On occasion, this court has prescribed certain conditions that a pro se litigant must satisfy in order to gain future access to our court system. Such litigants have been subject to certain screening processes before being allowed to pursue future litigation. See Parks v. State, 789 N.E.2d 40, 50 (Ind. Ct. App. 2003). This appellant is approximately one pleading away from crossing that line.

David Simmons v. State of Indiana (8/9/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
[This is a sentencing review. Blakely is not mentioned. The Court concludes] we find that the sentence imposed by the trial court was appropriate, given the nature of the offense and character of the offender. Accordingly, after due consideration of the trial courts decision, we conclude that Simmons sentence was appropriate in light of the nature of the offense and the character of the offender. See Rodriguez, 785 N.E.2d at 1174.

CONCLUSION. Based upon the foregoing, we conclude that the trial court properly evaluated Simmons aggravating and mitigating circumstances and, therefore, the enhanced sentence was appropriate. Additionally, we hold that the sentence was appropriate in light of the nature of the offense and the character of the offender. Affirmed.
VAIDIK, J., and CRONE, J., concur.

[Note: See this earlier ILB entry for more discussion of Rodriguez. See this entry titled "Blakely Either Ignored or Misunderstood" posted yesterday in a new Indiana blog, INCOURTS, "a blog for discussion of the Indiana courts" by Michael K. Ausbrook, a Bloomington attorney.

American Home Assurance Co. v. Thomas G. Allen, et al (8/9/04 IndCtApp) [Insurance]
Vaidik, Judge

American Home Assurance Co. (American Home) appeals the trial courts grant of summary judgment in favor of insurance agents Thomas G. Allen, Joe M. Gilstrap, Thomas G. Grier, James H. Nelson, Donald K. Owens, Richard K. Patierno, Richard K. Patierno, Jr., Silvine M. Patierno, and John M. Stone (collectively, Plaintiffs). This dispute arose over a professional liability policy issued by American Home with limits of liability of $250,000 for each wrongful act or series of continuous, repeated, or interrelated wrongful acts and $750,000 in the aggregate. American Home contends that the clear and unambiguous language of the insurance policy provides that the coverage is limited to $250,000, not $750,000. Because we find the terms of the policycontinuous, repeated, or interrelated wrongful actsto be ambiguous, we strictly construe them against the insurer, American Home, and in favor of maximum coverage. We therefore affirm the trial court. * * *
SULLIVAN, J., and MAY, J., concur.

Posted by Marcia Oddi on Friday, September 10, 2004
Posted to Indiana Decisions

Thursday, September 09, 2004

Indiana Courts - Washington County Prosecutor Cynthia Winkler and her top deputy charged with disciplinary violations

The Louisville Courier-Journal reports today:

The Indiana Supreme Court's disciplinary commission has charged Washington County Prosecutor Cynthia Winkler and her top deputy with violating the state's professional conduct rules for attorneys.

Winkler and chief deputy prosecutor Blaine Goode "engaged in conduct involving dishonesty, fraud, deceit or misrepresentation," according to the complaint the commission filed with the Supreme Court. * * *

If the Supreme Court determines that the charges are true, it could impose a punishment ranging from a private reprimand to a suspension from the practice of law that might disqualify Winkler from continuing to serve as prosecutor.

The charges, filed Aug. 4, involve a page of notes written on a legal pad by a defendant and passed to his attorney, who was questioning a police officer in February 2003 in preparation for trial.

Winkler and Goode admit that Goode ripped the page from the legal pad without the knowledge or permission of the defense team after the attorney and his client left the room, leaving the notes face down on a table. * * *

Patrick Baude, a professor at the Indiana University Law School who studies ethics issues, said the potential punishment for Winkler and Goode could cost them their jobs.

"If it reaches the level of suspension or disbarment, then prosecuting attorneys aren't attorneys anymore and they lose their jobs," he said.

Posted by Marcia Oddi on Thursday, September 09, 2004
Posted to Indiana Courts

Wednesday, September 08, 2004

Law - More on 6th Circuit decision holding Ohio tax incentives unconstitutional

Updating our entry from 9/3/04 titled "Significant tax ruling may impact Indiana" is this AP story today reporting that:

The state of Ohio will ask the full 6th U.S Circuit Court of Appeals to reconsider a ruling by a three-judge panel that declared Ohio's investment tax credit unconstitutional, officials said.

The panel struck down the tax last Thursday, saying it gives preferential treatment to companies that expand within the state, rather than in other states. The judges said the breaks hinder interstate commerce. * * *

The appeals court ruling could be used to challenge similar programs used by up to 40 other states to promote economic development, said Terry Lodge, a lawyer who argued against Ohio's program.

A 1996 report by the state of New York found that 35 of the 45 states with a corporate income tax had some type of investment tax credits, according to the National Taxpayers Union.

Posted by Marcia Oddi on Wednesday, September 08, 2004
Posted to General Law Related

Indiana Courts - Gary paper reports on Judge Miller's denial

On August 3 the the U.S. prosecutor for the ND Indiana submitted a 67-page motion to stay/memo in support urging the federal district court judges for the Northern District of Indiana to stop sentencings until the U.S. Supreme Court has issued a ruling in the U.S. v. Booker. As readers are aware, Booker was the 7th Circuit's decision ruling that the U.S. sentencing guidleines are unconstitutional as a result of the U.S. Supreme Court's decision in Blakely v. Washington early this summer. The Supreme Court will hear the Booker appeal this fall. (See this ILB entry from 8/3/04, titled "Federal prosecutor urges sentencing halt.")

Chief Judge Robert Miller Jr. of the U.S. District Court of Northern Indiana issued a one paragraph denial on August 27th, titled "In the matter of motion by United States to stay all scheduled sentencing hearings." (See ILB entry from 9/4/04 here.)

Today the Gary Post-Tribune has a story reporting Judge Miller's denial. Some quotes:

[Judge] Miller declined an interview for this story due to his hectic court schedule.

While defense attorneys have long questioned the constitutionality of the federal sentencing guidelines, most seemed to oppose the blanket moratorium on sentencing. Jerome Flynn, federal community defender in Hammond, filed an objection to Van Bokkelens motion. In his objection, Flynn wrote the government was seeking a one-size-fits-all remedy for every case currently pending sentencing in this district. He felt the courts should decide on a case-by-case basis whether a sentencing should be delayed because not all cases would be effected one way or the other by Blakely.

Van Bokkelen agreed not all cases would be affected, but he felt a blanket moratorium would prevent the inevitable invalidation of sentences if the Supreme Court decides to restructure or abolish the guidelines. * * *

Flynn said he was happy the court decided to proceed forward. And he thought Millers decision was a good indication that the majority of district judges believe the cases should be handled individually.

Although the 7th Circuit Court of Appeals in Chicago ruled in July that Blakely did apply to federal cases, that court is still issuing sentences. [Comment: The 7th Circuit is an appellate court and reviews sentences; it has been sending some sentencing decisions back to the federal trial courts with instructions to reflect its ruling in Booker.]

Flynn said the district courts should follow the circuit courts lead.

Although Millers ruling prevents a blanket stay throughout the district, it does not prevent judges from halting all sentences in their own courtrooms. Federal Judge Theresa Springmann in Fort Wayne issued a blanket stay of all sentences in her court last month. But Flynn said he and his colleagues have been able to successfully show Blakely would not apply to some cases, and Springmann has gone ahead with those sentencings. [My emphasis]

Some high-profile Northwest Indiana residents are scheduled for sentencing this fall, including Kevin Pastrick for his role in the carpenters union real estate investment scheme.

As we have seen in several stories from the Evansville paper, Judge Young of the Southern District of Indiana is continuing to issue sentences, and appears to be following the Blakely guidelines, judging from these recent stories: 8/20/04; 9/2/04; and today, 9/8/04. All these stories are the work of one reporter, Maureen Hayden. Unfortunately, it appears that few if any other reporters are covering the work of Indiana's federal trial courts. Although Ms. Hayden has reported that Judge Sarah Barker Evans has issued at least two bench rulings ruling that "the federal sentencing guidelines are unconstitutional and cited the Blakely ruling in her decisions," I have seen no other stories on the impact of Blakely on in the federal court here in Indianapolis, or in Fort Wayne, Terre Haute, etc. And I have seen no written opinions, as has been the case in a number of other federal district courts outside Indiana.

One added note - the Gary paper reported above that "Federal Judge Theresa Springmann in Fort Wayne issued a blanket stay of all sentences in her court last month." However, this 9/4/04 story from the Munster Times reports:

A federal judge has sentenced a 34-year-old Gary man to prison for his role in a scheme to launder drug money for the Jay Zambrana gang.

U.S. District Court Judge Theresa Springmann imposed a 41-month sentence on David Colon for his admission in May to a money laundering charge that said he helped transfer $15,000 in drug profits during the summer of 1999.

[More] I just found this South Bend story indicating that federal judge Allen Sharp also is following Blakely/Booker in his sentencing decisions (thanks to a link in the Sentencing Law & Policy Blog). The story reports that the defendant "had plenty of reason to smile after his prison sentence for dealing a large quantity of methamphetamine shrank in a series of puzzling reductions from up to nine years to less than six years." More:
The confusing scene was a good example of how unpredictable plea agreements and sentencings have become in the era of the U.S. Supreme Court ruling in the Blakely v. Washington case.

In that opinion, the Supreme Court declared that juries, not judges, must decide the factors that can result in longer sentences. It also has been interpreted in a similar manner by the 7th U.S. Circuit Court of Appeals.

Diaz, an Elkhart man, pleaded guilty to possession with intent to distribute more than 50 grams of methamphetamine. It was one of two counts against him in a grand jury indictment.

But a plea agreement between the defendant and the government set the total quantity of his transactions at 11 pounds. The amount is an issue of relevant conduct that increases the sentence.

Diaz also received sentence reductions for accepting responsibility and providing assistance to authorities.

At that point, U.S. District Judge Allen Sharp calculated a range of 87 to 108 months. He followed the government's recommendation for the term at the low end: 87 months.

A new calculation lowered the sentence to 70 months. That was done after defense attorney James Stevens pointed out that another government-requested sentence reduction was not reflected in the first range.

Next, Stevens questioned whether the total drug quantity should be factored into the mix in light of the Supreme Court's decision.

Sharp ordered a further reduction over the objection of Assistant U.S. Attorney Kenneth Hays, bringing the sentence to 57 months.

The defendant also will receive credit for time served since July 2003.

Sharp said he was comfortable with the sentence. It covered the defense arguments without clashing with the Supreme Court ruling and 7th Circuit interpretation, he said.

Posted by Marcia Oddi on Wednesday, September 08, 2004
Posted to Indiana Courts

Indiana Decisions - Two new decisions posted today

Berkel & Co. Contractors v. Palm & Associates (9/8/04 IndCtApp) [Contracts]
Sharpnack, Judge

[In this fact-based decision, one of the issues was whether the purchase order constituted a contract.] Here, however, the purchase order was definite in the overall job to be performed, i.e., stake approximately 800 auger pilings. While there was no provision defining the number of hours necessary to perform the surveying work, the purchase order, which called for surveying services to stake approximately 800 auger pilings to be paid at a rate of $110 per hour, was reasonably definite in its terms and, thus, was a valid, enforceable contract. * * *

For the foregoing reasons, we affirm the trial courts grant of partial summary judgment to Palm, the trial courts denial of Berkels summary judgment motion, and the trial courts judgment awarding damages to Palm.
VAIDIK, J. concurs
MATHIAS, J. dissents with separate opinion: I respectfully dissent.
I believe the trial court erred when it entered summary judgment in favor of Palm because the Purchase Order at issue here does not fulfill[] the office of a valid, binding, and exclusive contract between the parties. Dayhuff v. Canonie Constr. Co., 152 Ind. App. 154, 156, 283 N.E.2d 425, 427 (1972). The Purchase Order issued by Berkel did not specify a fixed time for completion of the work, any estimated number of hours for which Palm would be paid, nor any guaranteed minimum payment to Palm. The Purchase Order merely set forth the scope of the surveying work required for the Project and the terms of any surveying work Berkel should choose to order from Palm. Therefore, at best, the Purchase Order is an indefinite quantities contract that is unenforceable. * * *

Moreover, even if the Purchase Order can in fact be stretched into an enforceable contract, genuine issues of material fact remain as to its terms. Whether the items to be supplied under the Purchase Order are subject to the overall project requirement of union labor is an extremely large and genuine issue of material fact that precludes the entry of summary judgment for Palm.
For all these reasons, I would reverse the trial courts entry of summary judgment in favor of Palm and remand for a trial on liability and damages.

In the Matter of C.L. & D.L. (9/8/04 IndCtApp) [Family Law]
Vaidik, Judge
Sheila Lewis appeals the trial courts involuntary termination of her parental rights to her then four-year-old child. The Marion County Office of Family and Children (MCOFC) and Guardian Ad Litem cross-appeal the trial courts denial of the petition to involuntarily terminate Sheilas parental rights to her then eight-year-old child. Because the MCOFC proved by clear and convincing evidence all four elements required for termination with respect to the youngest child, we affirm the trial courts termination of Sheilas parental rights to that child. Moreover, because the evidence shows that Sheila is a drug abuser who has not maintained a stable source of income with which to support her children and because separation is not in the best interests of the children, who have lived together since the youngest childs birth in 2000, we conclude that the trial court erred in not also terminating Sheilas parental rights to her oldest child. We therefore affirm in part and reverse in part and remand. * * *
RILEY, J., and CRONE, J., concur.

Posted by Marcia Oddi on Wednesday, September 08, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit Posts 5 Today

Details may follow, possibly next week after a brief late-summer/early fall vacation.

Singer, Lois A. v. Pierce & Associates (ND Ill.)

USA v. Loutos, Peter A. (ND Ill.)

Armstead, Latosha v. Frank, Matthew (ED Wis.)

Ye, Wei v. Zemin, Jiang (ND Ill.)

Radaszewski, Donna v. Maram, Barry (ND Ill.)

Posted by Marcia Oddi on Wednesday, September 08, 2004
Posted to Indiana Decisions

Indiana Decisions - Another Blakely-related decision from Judge Young

The Evansville Courier&Press reports today on another Blakely-impacted sentencing decision in an Indiana federal district court. Some quotes from the story by Maureen Hayden:

A diaper-stuffing drug defendant found out Tuesday that sometimes, timing is everything. Walter H. Martin Jr. III found that out in federal court just before U.S. District Judge Richard Young sentenced him to 15 years in prison.

Martin, found guilty of stuffing $140,000 worth of crack cocaine down his baby's diaper before a routine traffic stop last year, could have been sentenced to 30 years to life behind bars.

That is, if his sentencing had taken place three months ago.

Martin, 30, of Vincennes, Ind., was the beneficiary of a U.S. Supreme Court decision that threw a major wrench into the workings of how federal criminal defendants are sentenced to prison.

The decision, handed down in June by the nation's top court, struck down the sentencing laws in the state of Washington as unconstitutional, because they allowed judges, not juries, to consider so-called "aggravating" factors that increase sentences. That decision then triggered some, but not all, of the nation's federal district-court judges to toss out the mandatory federal sentencing guidelines for the same reason. * * *

On Tuesday, Assistant U.S. Attorney Matt Brookman argued that Martin should be sentenced to at least 30 years in prison, the term called for under the federal sentencing guidelines, given a series of "aggravating factors." * * *

"In all candor, your honor, Mr. Martin is a drag on society," Brookman said. "He's a drug dealer who contributes nothing to society."

But Young, while noting the nature of Martin's crime, said the U.S. Supreme Court's ruling in June prohibited him from considering the aggravating factors of the case. Instead, he sentenced Martin to 15 years in prison, the maximum term called for under the guidelines without the aggravating factors.

Posted by Marcia Oddi on Wednesday, September 08, 2004
Posted to Indiana Decisions

Indiana Law - Make PERF directly accountable to Governor

The lead editorial in the Indianapolis Star today continues to point to problems with state quasi-public entities. These independent agencies, such as the Intelnet Commission, PERF, the BMV Commision, and the new Indiana Economic Development Commission (IEDC), are not directly accountable to the governor and are insulated from the voters. State laws relating to personnel, purchasing, and public disclosure, intended to protect against fraud and abuse, often do not apply to these entities. The Star opines:

While the pension fund's operations have been cleaned up in the past two years, there still isn't enough oversight to ensure that it will stay on course. To improve accountability, either the governor or the state treasurer must be given ultimate authority over the fund. * * *

PERF's subsequent repair work, as admirable as it is, still doesn't settle the problem of who ultimately will keep it in line. The governor, who appoints its five trustees, lost the power to control the pension fund's budget after the legislature deemed PERF an "independent body" four years ago. The state treasurer, in the meantime, only serves as custodian over its investments.

For the sake of Indiana's public employees, it's time to make someone the ultimate boss of the pension fund.

My only quibble here is with the word "someone." The Governor is the chief executive officer of the state. In 1941 the General Assembly attempted to redistribute the powers of government, passing laws removing the appointing and exuctive responsibilty for various agencies/entities from the Governor and transferring it to the state auditor, treasurer, lieutenant governor, and secretary of state. The Indiana Supreme Court threw these laws out in the famous case of Tucker v. State. For details, see my paper on the separation of powers in Indiana, titled "Maintaining the balance of power between the legislative and executive branches of Indiana state government post 1941." For a case study of how the separate of powers impacts the most recently created quais-public entity, the 2003 Indiana Economic Development Corporation law (IEDC), see this May 17th ILB entry, "Economic Development and the Indiana Governor."

[The most recent ILB entry on the topic of quasi-publics, from 9/1/04, is available here.]

Posted by Marcia Oddi on Wednesday, September 08, 2004
Posted to Indiana Law

Tuesday, September 07, 2004

Indiana Decisions - 7th Circuit Site Back Online

And the judges have been busy. Since the site went offline after posting 9/1/04 opinions, the following new decisions have been issued:

Thursday, September 2

Jennings, Pamela J. v. AC Hydraulic A/S (SD Ind., Judge McKinney)

USA v. Johnson, Randall R.

Adeeyemoh, Emanuel v. Ashcroft, John

Nigussie, Abel M. v. Ashcroft, John D

Crestview Village v. HUD

Friends of Milwaukee v. Milwaukee Metro

Fields, Jodi v. Wilber Law Firm

Friday, September 3

Asher, Brian v. Baxter Int'l Inc

USA v. Ford, Lonnie M. (ND Ind., Judge Moody)

Tuesday, September 7

Patel, Manu v. City of Chicago

USA v. Bonty, Michael D.

Lust, Tracey v. Sealy, Incorporated

Subhan, Mohammed v. Ashcroft, John D.

Posted by Marcia Oddi on Tuesday, September 07, 2004
Posted to Indiana Decisions

Indiana Decisions - Two from Court of Appeals Today

Steven Lytle v. Ford Motor Company (9/7/04 IndCtApp) [Torts; Evidence, Daubert]
Baker, Judge

Nearly six years after we first issued an opinion in this action, this case is before us once again. Appellant-plaintiff Steven Lytle, appeals the entry of summary judgment granted in favor of appellee-defendant Ford Motor Company (Ford) on his product liability claim against Ford for defective seatbelt design, alleging that the trial court erred in determining that evidence submitted by Lytles expert witnesses based on their observations and deductive reasoning was insufficient to oppose Fords technical and scientifically relevant evidence based on reliable scientific principles. More specifically, Lytle argues that the trial court erred in its application of Indiana Evidence Rule 702, that it improperly granted Fords motion to strike several affidavits and other exhibits on relevancy grounds and that it had improperly weighed the evidence at the summary judgment stage of the proceedings. Concluding that the trial court properly granted Fords motion for summary judgment, we affirm. * * *

In light of our disposition of the issues set forth above, we conclude that the trial court properly excluded the purported expert testimony of Horton and Dr. Khadilkar, inasmuch as Lytle failed to satisfy the requirements of Indiana Evidence Rule 702. We also note that the trial court did not err in striking the affidavits and excluding the exhibits that Lytle sought to admit in opposition to Fords motion for summary judgment. Finally, inasmuch as Ford presented evidence sufficient to establish that no genuine issue of material fact existed with respect to Lytles claims against it, and Lytle failed to offer admissible evidence to counter that evidence in support of his claim against Ford once the burden had shifted to him, we conclude that summary judgment was properly entered for Ford. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Shaft Jones v. State of Indiana (9/7/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Shaft Jones appeals his conviction for possession of cocaine, a class D felony. See footnote Specifically, he raises three issues; however, we find one dispositive: whether the trial court properly denied his motion to suppress. Finding that the search of a childrens backpack that was improperly seized from the vehicle violated Joness Fourth Amendment rights, we reverse and remand. * * *

The State bears the burden of proving that a warrantless search falls within an exception to the warrant requirement. However, where there is probable cause to believe that a vehicle contains evidence of a crime, a warrantless search of the vehicle does not violate the Fourth Amendment because of the existence of exigent circumstances arising out of the likely disappearance of the vehicle. Further, as long as the search is supported by probable cause, a warrantless search of a vehicle may also include a search of a container or package found in the vehicle.

Here, the officers had received information that a black duffel bag had been involved in an armed robbery earlier in the day. However, there was no mention of a childrens backpack being involved in any crime. The simple fact that the childrens backpack was near a black duffel bag found a mile away from the scene of a robbery does not provide the police with probable cause to search the childrens backpack. Moreover, there was no indication that the vehicle was in any danger of disappearing while the officers obtained a warrant. No one was on the street at the time the officers approached the vehicle; more to the point, no one even came outside to see what the officers were doing until after they shined flashlights into the darkened houses in the vicinity. Tr. p. 68-69. Simply put, there were no exigent circumstances arising out of the likely disappearance of the vehicle. In this case, it is apparent that one officer could have gone to try to obtain a warrant while the other remained with the vehicle in case a prospective driver did appear.

Because the police lacked probable cause to search the childrens backpack and because no exigent circumstances existed, we find that the automobile exception to the warrant requirement did not apply in this case. The officers were required to obtain a warrant before searching Joness vehicle. Therefore, the trial court erred in denying Joness motion to suppress, and his conviction must be reversed.
The judgment of the trial court is reversed and remanded.
KIRSCH, C.J., and ROBB, J., concur.

Posted by Marcia Oddi on Tuesday, September 07, 2004
Posted to Indiana Decisions

Indiana Courts - Another adult business case before Judge Barker

This August 30th ILB entry, titled "Federal court upholds Indianapolis' ordinance re adult businesses," reported that U.S. District Judge Sarah Evans Barker had upheld provisions of an Indianapolis adult business ordinance. [Unfortunately the ruling has not be posted on the SD Ind. website.]

Today the Louisville Courier-Journal reports on a similar case before Judge Barker, this one involving a New Albany adult video store. Some quotes:

[Steve Mason, a lawyer for New Albany DVD] said recent decisions in similar First Amendment cases make it clear that New Albany must cite specific evidence showing New Albany DVD would harm the community.

Because the city's evidence, so far, has been studies and anecdotes from other cities, often involving other types of adult entertainment, Mason said he believes his client will win.

[Shane Gibson, the city attorney] agreed the battle will be largely over the way New Albany DVD will affect the neighborhood near Main and West Sixth Street.

He questioned the statistics in Linz's report and said he's confident an expert for the city, a criminologist who has studied the issue, can explain the impact of adult businesses on other communities and say why it is relevant to New Albany's case. "We feel there is some law on our side," Gibson said.

Alexander Tanford, a law professor at Indiana University in Bloomington, said he believes evidence about the harmful effects of adult businesses on other communities is relevant to New Albany.

Even so, he said, "it seems like the store owner has a pretty good chance" because the 7th U.S. Circuit Court of Appeals, which handles appeals from Indiana, generally takes a strong position in support of First Amendment rights.

Posted by Marcia Oddi on Tuesday, September 07, 2004
Posted to Indiana Courts

Indiana Courts - Meth epidemic prompts change in attorney tactics

"Meth epidemic prompts change in attorney tactics" is the headline to this story today by Maureen Hayden in the Evanville Courier&Press. A quote:

[Russ] Johnson is among what appears to be an increasing number of criminal defense attorneys who find themselves in the unexpected position of advocating to keep some of their clients in jail. The reason, they say, is an epidemic of abuse of methamphetamine, a highly addictive stimulant that has saturated the Tri-State. "It's happening in every court in Indiana,'' said Johnson. "As soon as they make bond, they're right back in jail again."

Evansville criminal defense attorney Jeff Lantz concurs. He's seen meth-addicted clients pass through that revolving door.

Posted by Marcia Oddi on Tuesday, September 07, 2004
Posted to Indiana Courts

Monday, September 06, 2004

Indiana Law - Evansville journalist's medical malpractice series wins award from trial lawyers

A story today in the Evansville Courier&Press reports that C&P reporter Roberta Heiman has been named 2004 Journalist of the Year by the Indiana Trial Lawyers Association. From the story:

[Heiman's] series showed that Indiana's attempt at tort reform has failed to deliver on several of its initial promises, including lower health-care costs. Her reporting showed that the law, enacted more than 30 years ago, wasn't the panacea promised for patients or doctors.

Indiana, Heiman reported, has one of the lowest per-capita doctor ratios in the country. She also found the state rarely doles out disciplinary action against doctors who've committed malpractice. * * *

Unfortunately, the series, "Medical Malpractice: Mistakes, Money & Misery," which ran in April, appears no longer to be available online. However, Indiana Law Blog entries quoting from the articles may be found at these links: 4/18/04; 4/20/04; 4/21/04; and 4/22/04.

Posted by Marcia Oddi on Monday, September 06, 2004
Posted to Indiana Law

Law - More on Voting Rights of Felons

The Louisville Courier-Journal reports today, in a story headlined "Felons face tougher rules to regain right to vote: Fletcher changes draw criticism from some", that:

Concerned that past governors had restored voting rights to felons too easily, Gov. Ernie Fletcher has given prosecutors unprecedented power to reject applications. Fletcher also now requires felons who want to vote again to provide three character references and tell him in writing why they should be allowed to cast ballots.

Civil libertarians, voting rights advocates and some Democrats contend the policy adds unnecessary, time-consuming steps that could keep hundreds of felons away from the polls this year. A process that used to take less than a month now takes six weeks to three months.

John Roach, Fletcher's top lawyer, defended the policy, saying applications received little or no scrutiny under the former policy, and some felons were allowed to vote again even though they owed restitution to victims.

"It had certainly become an easy, pro forma exercise," Roach said. "But we felt it was appropriate for someone who is a felon that the law said their civil rights were taken away it wasn't too much to ask them to simply state in their own words why they wanted them to be restored and why they deserved it and to provide those references."

Under [Kentucky] state law, the governor decides whose rights to restore, but Roach said Fletcher's policy gives prosecutors more say in the decision than they had in the past. "We are relying heavily, if not almost exclusively, on the commonwealth attorneys and the fact that they know these individuals and have a much better feel of where the person is," Roach said.

Later in the story:
States handle civil rights restoration differently. Felons in Indiana lose the vote only while incarcerated. Tim Rusch, a spokesman for New York-based Demos, which advocates for voter access, said Kentucky is one of six states that do not have some form of automatic restoration of voting rights.

In Kentucky, only an order of the governor can restore those rights. Under the former policy, Kentucky felons had to fill out an application from the state Department of Corrections, and a parole officer would verify the sentence had been completed. The commonwealth's attorneys from where the felony was committed and in the applicant's home county were given a chance to object. The Fletcher administration has added steps.

An Indiana Law Blog entry from March 28th gives much more information and perspective on this issue. Particularly helpful is this NY Times graphic, described in entry as showing:
in progressive maps the number of states that prohibit felons from voting: (1) while in prison; (2) while on parole; (3) while on probation; (4) after sentence is completed, for certain types of felons; (5) after sentence is completed, for all felons. According to the graphic, the seven "states that prohibit felons from voting after their sentences are complete all have some sort of clemency process that can restore voting rights in some cases."

Posted by Marcia Oddi on Monday, September 06, 2004
Posted to General Law Related

Sunday, September 05, 2004

Indiana Law - Compensation of General Assembly members

The Indianapolis Star has an informative editorial today about legislative compensation, explaining that things are not precisely as they appear. The title is "Behind the curtain: legislators' compenation." It begins:

John Bartlett * * *, chairman of the Public Officers Compensation Advisory Commission, notes that legislators haven't received a pay raise in 21 years.

Yet Bartlett admits he didn't check out legislators' perks. Like the $134 per day each one receives during sessions for food and lodging expenses. It adds up to an additional $8,174 a year. Then there's the state's match of $4 for every buck a legislator contributes to his pension. Legislators, by the way, inexcusably voted this year to keep the size of those pensions secret.

Why didn't the commission take those extras and others into account? Because, Bartlett says, the statute creating the panel charged it with considering "wages and wages only."

The Star piece continues:
The Star Editorial Board decided to pull back the curtain and do its own examination of the rewards lawmakers receive. The perks include a generous pension, dinners and gifts from lobbyists, the ability to go to work as a lobbyist immediately after leaving office and lawmakers hired as deans at state universities. With all this, and the state's mounting fiscal problems, it's no wonder Hoosiers reacted with suspicion at the commission's recommendation.
The Star goes on to detail the perks, in five sections with headings such as "Pension secrets." That section explains:
The General Assembly this year passed a bill making details of individual legislators' pensions secret. Only four lawmakers voted against the measure. State Rep. Tom Saunders, R-Lewisville, was one of them. He says: "If I'm generating revenue from the taxpayers, they need to know how much."

Most of his colleagues, however, don't agree. Perhaps it's arrogance. Or frustration with the flak they receive for proposing pay raises. But the legislature has taken the tack that the best way to deal with compensation is by granting themselves sweet deals without public consultation.

Take for instance then-Gov. Frank O'Bannon's veto of legislation that would have given health benefits to former legislators who served a mere six years in office.

In response, Senate President Pro Tempore Robert Garton and then-Speaker John Gregg invoked a 2001 law and signed off on funding the perk from the general fund. Forget the budget deficit. And forget the fact that ordinary state employees' salaries haven't kept up with inflation. Lawmakers took care of their own desires.

Regular readers will recall that the ILB posted a number of entries on "PERF privacy" earlier this year, including this one, which begins:
Last evening Governor Kernan announced that he had signed into law HEA 1285. As a result, the law is now in effect, retroactive to September 1, 2003. This new law will prevent anyone from accessing PERF information, other than member names and years of service, through a FOIA request.
A quote from a Star editorial of 3/20/04 reads:
If Kernan wins the November election, he'll confront a legislature that sealed most pension records in 2001 and quietly passed legislation this session that closes off the rest. When he signed the latter bill into law Thursday, Kernan proclaimed that all employees should be treated equally but neglected to mention, among other details, that the measure serves the most equal employees of all.

Legislators, who receive four tax dollars for every dollar they contribute, are the biggest beneficiaries of the newly secret funds, which also enroll judges and prosecutors. It hardly seems a coincidence that the law denying access was passed retroactive to requests by news organizations to view the records. Media investigations in other states have turned up millions in misappropriated public employee pension funds.

For more ILB entries on this topic, use the search box in the right column.

[More] The Evansville Courier&Press also has an editorial today on the recommendations of the pay commission. One of the concluding paragraphs reads:

Our Supreme Court justices receive only $115,000 per year, and Appeals Court judges only $110,000. That's a pittance compared with what they could make in private law practice. Without pay commensurate with the position, Indiana will not long find people of high competence and ability willing to sit on its judiciary and decide complex matters of supreme importance to Hoosiers.

Posted by Marcia Oddi on Sunday, September 05, 2004
Posted to Indiana Law | Legislative Benefits

Law - Data from "black boxes" in automobiles used in court

"Data from cars' 'black boxes' used in court; privacy concerns raised" is the headline to this story in the Louisville Courier Journal. Two related stories are headed "SOME VEHICLES KEEP TABS ON YOU AND SOME DON'T", available here, and "COMMON QUESTIONS," available here.

Posted by Marcia Oddi on Sunday, September 05, 2004
Posted to General Law Related

Environment - Recent Indiana stories

"Superfund cleanup almost complete" is the headline to this story in the Munster Times on the project at Amercian Chemical Service in Griffith.

"IDEM, EPA join hands over lakefront plan: The agencies agree not to dispute each other's decisions" is the headline to this story, also from the Times, that begins: "HAMMOND -- State and federal officials have joined forces with each other as well as the Quality of Life Council to help advance the Marquette Greenway plan, which aims to reclaim the lakeshore for the public."

The Johnson County JournalNet.com reports, in a story headlined "Company changes its plans to delight of neighbors":

A gasoline pipeline company has withdrawn plans to build a pump station in a Needham Township neighborhood but still is searching for potential locations within a mile of the original site. Texas Eastern Products Pipeline Co., referred to as TEPPCO, is scouting the area east of Interstate 65 near Upper Shelbyville Road for possible sites for a new gasoline pump station. The Houston-based company wants to build an electric-driven pump, above-ground piping, a small electric substation and a maintenance and safety flare.
"Town manager resigns following mercury spill" is the headline to this AP story:
CARTHAGE, Ind. The town manager in Carthage has quit amid criticism by residents who wanted to know why a mercury spill in the town pump house was not immediately reported to the state environmental agency. Carthage Town Works Manager Larry Back resigned yesterday during a specially called Town Council meeting.

Town officials notified the Indiana Department of Environmental Management on Tuesday that mercury had apparently leaked sometime last Friday from a vial labeled "virgin mercury" that was in the pump house for the town about 40 miles east of Indianapolis. Town officials hired a private firm to handle the cleanup, which already has cost six-thousand dollars.

The Gary Post Tribune reports:
CROWN POINT A Lake County board is thinking of suing the states environmental agency for not stopping pollution at a Lowell-area landfill.

The countys Solid Waste Management District board voted Thursday to discuss the lawsuit possibility in a future closed-door meeting before filing anything.

County Commissioner Gerry Scheub, the boards chairman, and West Creek Township Trustee Rick Niemeyer said the state let down residents near the former Feddeler landfill.

They said the Indiana Department of Environmental Management failed to stop unauthorized dumping at the now-closed landfill, which was authorized only to accept construction and demolition debris, and then didnt make sure its owners set enough money aside to close the landfill properly.

Another story, from the Munster Times, reports:
WEST CREEK TOWNSHIP -- While groundwater is considered safe near a defunct landfill site west of Lowell, the Lake County Solid Waste Management District wants to clean up the parcel as a preventive measure and the Indiana Department of Environmental Management is moving to achieve that goal.

The Feddeler (R&M Enterprises) CD Landfill, a construction and demolition landfill, has been cited by the department for numerous violations in the past, and residents have complained of contamination oozing from the ground.

The landfill closed several years ago and R&M, owned by Robert Feddeler, declared bankruptcy, officials said.

The landfill was never properly closed, said Bruce Palin, deputy assistant commissioner, IDEM Office of Land Quality.

The Munster Times also reports that:
HAMMOND -- City officials are preparing their case against a chemical treatment facility that reportedly fouled the air across a large section of north Hammond and landed the city's environmental director in the hospital last month.

Hammond Environmental Director Ron Novak, joined this week by Assistant City Attorney Alan Faulkner, Zoning Administrator Don Novak, Fire Chief Dave Hamm, City Councilman Mark Kalwinski, D-1st, and Chief of Staff Marty Weiglos, said they plan to use every resource at their disposal to ensure that ProLiquids, 3 141st St., complies with all local, state and federal environmental laws.

Posted by Marcia Oddi on Sunday, September 05, 2004
Posted to Environmental Issues

Saturday, September 04, 2004

Indiana Courts - Federal district court for Northern Indiana rejects sentencing delay request

Readers may recall an entry August 3 reporting that the U.S. prosecutor for the ND Indiana was urging the federal district court judges for the Northern District of Indiana to stop sentencings until the U.S. Supreme Court issues a ruling in the U.S. v. Booker. As reported today in the Munster Times:

HAMMOND -- The sentencing of a number of defendants in high profile public corruption and drug cases will carry on.

Chief Judge Robert Miller Jr., of the U.S. District Court of Northern Indiana, announced this week he is denying a request by U.S. Attorney Joseph Van Bokkelen and federal defense attorneys to stop all sentencings until the Supreme Court rules on the fairness of current sentencing guidelines.

Cheif Judge Miller's one paragraph denial, dated August 27th, is available here.

Posted by Marcia Oddi on Saturday, September 04, 2004
Posted to Indiana Courts

Indiana Law - More on same-sex custody case in Noblesville

"Judge: Adoptive mom must give up son" is the headline to today's Indianapolis Star report on the outcome yesterday of the same-sex custody case heard in Hamilton Superior Court 2. Some quotes:

In a test of Indiana law, a judge said Friday an adoptive mom must hand over her son to his biological mother's parents despite a prior court order giving her custody.

Hamilton Superior Court Judge Bernard "Buddy" Pylitt said he would restore temporary custody to Nancy Lafferty, however, if she returns to live in Central Indiana.

Pylitt's decision after a four-hour hearing in Superior Court 2 partially resolves a custody challenge from biological mother Jill Wihebrink, an Indiana resident and Lafferty's former domestic partner.

The larger issue of permanent custody, and how Indiana's family law will address the nontraditional relationship of same-sex parents, still looms. * * *

Pylitt said he would schedule another hearing after Wihebrink's release from prison in January to decide a permanent custody arrangement.

Access yesterday's ILB entry here (or simply scroll down).

Posted by Marcia Oddi on Saturday, September 04, 2004
Posted to Indiana Law

Friday, September 03, 2004

Law - Significant tax ruling may impact Indiana

"Court says tax break is illegal: States use tactic to attract jobs" is the headline to this story today in the Louisville Courier Journal that begins:

A tax break used by Kentucky and other states to entice companies to buy equipment and add jobs may be eliminated under a ruling yesterday by a federal appeals court.

The 6th U.S. Circuit Court of Appeals in Cincinnati ruled unconstitutional an Ohio law that gives tax incentives to companies that invest in the state rather than expand out-of-state. The court said the law is unconstitutional because it grants preferential treatment.

The three-judge panel's decision covers the four states in its circuit: Kentucky, Ohio, Tennessee and Michigan.

Though an appeal is planned, the initial concern is that the ruling, which goes into effect immediately, could put the four states at a disadvantage keeping or recruiting businesses.

Judge Martha Craig Daughtrey wrote for the unanimous appeals panel that allowing companies that put new equipment in the state to pay lower taxes than others violates the U.S. Constitution.

Kentucky economic development secretary Gene Strong expressed concern after learning of the ruling.

"I think it's equitable to offer incentives to existing businesses who are growing in Kentucky at the same level as you would to a new business you were trying to attract," Strong said.

"We're in the business of trying to provide opportunities for Kentuckians. If that means having to step up to provide incentives to businesses, I think that's fair." * * *

The ruling stems from a Toledo case in which a group of taxpayers and small businesses sued over an investment tax credit that Ohio granted DaimlerChrysler to build a Jeep plant employing 3,800 workers. The plant, which opened in 2001, produces the sport utility vehicle Jeep Liberty.

Teets said that while Ohio could simply take the money it uses in tax incentives and divert it to other incentives that "pass constitutional muster," it would be harder to compete against states like Indiana and others outside the circuit.

"In Ohio, it's a very widely used tax credit, and certainly states use every tool that they have to make their state as competitive as possible," he said. "It makes it difficult to compete on a broad scale if you are the only (region) being penalized."

Other stories include this one in the Detroit Free PressHere is the opinion in the case, Cuno v. DaimlerChrysler Inc.

Posted by Marcia Oddi on Friday, September 03, 2004
Posted to General Law Related

Indiana Decisions - One from the Court of Appeals today

James Whitaker v. Martin C. Brunner (9/3/04 IndCtApp) [Contract]
Friedlander, Judge

James and Karl Whitaker attempted to purchase an auto parts business from Martin C. Brunner, but the Whitakers failed to perform some of their obligations under the contract. The Whitakers sued Brunner for breach of contract. Brunner counter-sued the Whitakers on the same grounds. Brunner eventually prevailed in his lawsuit. The Whitakers appeal that judgment, presenting the following restated issues for review: 1. Did the trial court err in concluding that the Whitakers breached the contract by allowing the inventory to diminish? 2. Is the amount awarded by the court for breach of contract supported by the evidence? 3. Is the award of treble damages supported by the evidence? We affirm in part, reverse in part, and remand with instructions. * * *

The evidence reflects that the Whitakers charged inventory items on Brunners account, sold the items, and kept the proceeds. The foregoing excerpts from Brunners testimony permit a reasonable inference that Brunner is financially responsible for the unpaid invoices for those items. That, in turn, is sufficient to prove that the Whitakers knowingly exerted unauthorized control over Brunners property without any contractual basis for doing so. Therefore, Brunner established the elements of criminal conversion by a preponderance of the evidence. Judgment affirmed in part, reversed in part, and remanded with instructions to re-calculate the amount of the damage award consistent with this opinion.
BAKER, J., and BAILEY, J., concur.

Posted by Marcia Oddi on Friday, September 03, 2004
Posted to Indiana Decisions

Problems again with blog software

Problems again -- I see there is no right column, for instance -- but not as bad as the 7th Circuit, which is still off-line!

Posted by Marcia Oddi on Friday, September 03, 2004
Posted to About the Indiana Law Blog

Law - Philip Morris, Plaintiffs Spar Over Illinois Supreme Court Justice

"Philip Morris, Plaintiffs Spar Over Ill. Supreme Court Justice" is the headline to this AP story today. The story begins:

Cigarette maker Philip Morris USA and plaintiffs lawyers who won a $10.1 billion judgment against the company are fighting over whether an Illinois Supreme Court justice should hear the appeal of the case.

Former Gov. James Thompson, one of the lawyers representing Philip Morris, asked the state Supreme Court on Monday to dismiss a Chicago law firm hired to argue the appeal, claiming the firm joined the case just so one of the high court's justices would have to recuse himself.

Posted by Marcia Oddi on Friday, September 03, 2004
Posted to General Law Related

Indiana Law - Same-sex custody case in Noblesville

"Unusual custody case tests state law: Same-sex couple -- one is child's biological parent, the other adoptive -- will go to court today" is the headline to a really interesting story by James Gillaspy in the Indianapolis Star. Some quotes:

NOBLESVILLE, Ind. -- A couple sparring over custody of their son will square off today in a legal fight that also tests state law. Both parents are women, and each is the mother of 4-year-old Luke Wihebrink -- one biologically, the other by adoption. Jill Wihebrink, 34, and Nancy Lafferty, 53, are ex-partners whose son was conceived by Wihebrink through artificial insemination, then adopted by Lafferty.

While some judges recognize such relationships, Indiana law does not. As a result, problems can arise when relations sour. "Typically, adoption cuts all the ties between the birth mother and the child," explains Maria Lopez, who teaches family law at the Indiana University School of Law-Indianapolis. "They call it the death penalty . . . because that's it. It's over."

But the case today in Hamilton Superior Court 2 is not typical. It's new ground for Judge Bernard L. Pylitt, who will decide how traditional family law applies to a nontraditional family.

"The issue here is, 'How do you address custody?' " said attorney Allan W. Reid, who represents Lafferty. "Everybody acknowledges there is no law that applies to this situation."

From a legal perspective, the problem began when a Tippecanoe County judge authorized the couple's joint parenting with an adoption decree. A letter-of-the-law interpretation of the adoption statute does not allow it.

The potential for complications grew when Lafferty, a former English instructor at Ball State University, petitioned the Hamilton County court for a child custody order not technically allowed for unmarried parents. She had wanted to ensure her position as the custodial parent after Wihebrink was imprisoned for reckless homicide following a fatal drunken-driving accident.

More from the story:
The lag in legislation to recognize the nontraditional family situations that modern-day judges must address is a growing challenge for courts nationwide.

While the birth-and-adoption process Wihebrink and Lafferty pursued is rare in Indiana, the practice was commonplace in California when same-sex couples there were stunned by a state appeals court ruling in 2001.

The court noted state law didn't permit mothers' same-sex partners to adopt their child without giving up their parental rights.

The next year, legislators enacted a law to allow the adoption process under a step-parent provision that does not require birth mothers to relinquish their rights.

Though such legislation does not exist in Indiana, former Judge Jerry Barr, Pylitt's predecessor in Hamilton Superior Court, followed the lead of the Tippecanoe County judge who had issued the adoption decree. . Barr treated the couple as though they were married and, in August 2003, granted the child custody agreement Lafferty and Wihebrink sought. * * *

In March, the Indiana Court of Appeals recognized the dilemma judges face and offered guidance in a Newton County case. Although a father had agreed to surrender parental rights so his ex-wife's same-sex partner could adopt their children as a second parent, the county judge held that state law does not address their situation as unmarried partners.

Without the benefit of marriage, he ruled, the law required the biological mother to surrender parental rights in order for adoption to occur. Because the same-sex couple could not marry under Indiana law, he concluded, there could be no legal adoption making them co-parents.

The appeals court disagreed. "The court basically said it's similar to a step-parent situation, and we're going to find that the petitioner should be able to adopt," said Tom Olvey, counsel for the Indianapolis adoption agency Bethany Christian Services.

Although same-sex couples can't marry in Indiana, the appellate finding gives weight to the sort of adoption the Tippecanoe County judge had approved. And it gave judges across the state a legal foundation to continue creating new family law through the court system.

"When social mores change, governing statutes must be interpreted to allow for those changes in a manner that does not frustrate the purposes behind their enactment," states the appellate court's March 23 ruling. In allowing such same-sex adoptions, the court said, "we are furthering the purposes of the statute as was originally intended by allowing the children of such unions the benefits and security of a legal relationship with their de facto second parents."

The Court of Appeals decision referenced in the story is In The Matter of K.S.P and J.P. (3/23/04 IndCtApp). Access the Indiana Law Blog entry here, the case is about half-way down the page.

A related story today, about California law, is posted at Law.com and headed "Calif. Supreme Court to Clarify Gay Parents' Rights." And this July 2 story reports:

A Los Angeles appeal court took the unprecedented step Wednesday of ruling that a non-birth mother in a same-sex relationship could claim co-parent status if viewed as a "presumed father" under the state's Uniform Parentage Act.

"That statute, when read in a gender-neutral manner," 2nd District Justice H. Walter Croskey wrote, "provides that a woman is presumed to be a parent of a child if [she] receives the child into [her] home and openly holds out the child as [her] natural child.'

"We see no prohibition in the act," he continued, "that prevents us from concluding that a child has two parents of the same sex, especially here when no one other than the partner is vying to become the child's second parent."

Posted by Marcia Oddi on Friday, September 03, 2004
Posted to Indiana Courts

Law/Biotech - Differentiating identical twins via DNA

"Twin suspects spark unique DNA test: Lab will try to tell which guilty of rape" is the headline to this story today in USA Today. Some quotes:

A private lab in Dallas is set to try something never before attempted by scientists who investigate crimes: separate the DNA of identical twins to try to show which member of the pair committed a crime.

Unlike other people, [identical] twins begin life with the same genetic profile because they are formed when a single fertilized egg divides. But tiny mutations are known to occur in DNA, the cellular acid that carries the genetic code, as cells divide during an embryo's growth.

The lab, Orchid Cellmark, hopes to identify those differences to distinguish between the DNA of a pair of twins from Grand Rapids, Mich. The DNA of both men matches a semen sample from a November 1999 rape that was committed by one man.

The experiment is being watched closely by authorities across the nation. They say that in several cases, genetic evidence left at crime scenes typically blood or semen has linked identical twins to crimes that only one could have committed. The DNA testing used by law enforcement authorities and the FBI's national DNA database of convicted felons does not detect differences between identical twins. * * *

If differences are found in the Cooper brothers' DNA, they'll be compared with DNA from the rape. Even if a match is made, specialists say it could be difficult to get a court to accept the results of the new test.

This is very cutting-edge stuff, (and) there has to be a first time for everything, says David Lazer, a professor at Harvard University's Kennedy School of Government and a student of DNA evidence and public policy. But you worry about a technology if it's only been done a handful of times.

Also of interest is this story today from the Alameda Times-Star about twins.
Marie Rogers of Daly City fits the demographics. She had Amy and Marissa, 10, when she was 41.

The girls are monozygotic, the new preferred term for "identical." It simply means that they came from one (mono-) egg (zygote). Likewise, the twins formerly known as "fraternal" are now called dizygotic.

About 70 percent of twin births are dizygotic twins. While they shared a womb, they are not any more genetically similar than any other siblings.

One reason for the change in nomenclature has to do with the fact that identical doesn't actually mean identical.

"Identicals kind of a misleading term," Rogers says. "My girls do look different. To me, they look different. But people say, 'I can't tell them apart.' One's heavier, one's a little taller."

Malmstrom says those from non-twin families tend to get confused about what it means to be identical twins.

"Identical means they have the same DNA, the same inheritance, the same biology, but it doesn't mean they're the same person," Malmstrom says.

Even in twin families, she says she's frequently encountered parents who say their twins can't be identical because they can tell them apart -- which is not really an accurate test. (Paul and Morgan Hamm claim to be dizygotic, but to most people they look exactly the same. Don't rely on the media to tell you, either. Various news services have called them fraternal and identical. Their parents say it doesn't really matter.)

Usually twins who share a placenta are identical, but the only way to really know is DNA testing.

And speaking of the Hamm twins, Slate had two interesting articles on these Olympic twins last month. This story, from August 18th, is headlined "Are Paul and Morgan Hamm identical or fraternal twins?" A quote:
Twin experts say the only way to know for certain whether twins of the same gender are identical or fraternalor, to use the preferred scientific terms, monozygotic or dizygoticis to conduct a DNA test. At this point, it's unclear whether the Hamm twins have had such a DNA test. An interview with Morgan and Paul's parents will hopefully provide some clarification. Another update to follow shortly.
This follow-up August 19th article is titled "Are Paul and Morgan Hamm identical twins? Their parents say no. Science says yes." Some quotes:
So, Mr. Hamm, are your sons identical or fraternal? "Their parents do not believe that they're identical," he says.

Mr. Hamm then lists the brothers' physical differences: The circle of hair on the top of each boy's head goes in opposite directions, their teeth are different, their noses are different.

But these are just the observations of a parent who has spent more than 20 years staring at his children. Have they taken a DNA test to confirm that they are fraternal? "We've never had them genetically tested," Mr. Hamm reports. * * *

The parents say fraternal. Paul and Morgan themselves say, according to AP reporter Nancy Armour and USA Gymnastics spokesman Brian Eaton, that they are fraternal. But medical science says identical. Slate sides with science, and hereby declares that American gymnasts Paul and Morgan Hamm are identical twins.

My opinion (for what it is worth, and this certainly is not law related) is that the Hamm father's statement that "The circle of hair on the top of each boy's head goes in opposite directions" indictates they are identical and, in fact, are what is known as "mirror-image twins."

But using DNA to determine whether or not twins ARE identical is simple, as opposed to the USA Today story that began this entry -- using DNA to differentiate between identical twin.

Posted by Marcia Oddi on Friday, September 03, 2004
Posted to Biotech | General Law Related

Thursday, September 02, 2004

Environment - Cinergy's planned environmental construction program

A press release from Cinergy today announces:

CINCINNATI--(BUSINESS WIRE)--Sept. 2, 2004--Cinergy Corp.'s (NYSE:CIN) operating companies, The Cincinnati Gas & Electric Co. and PSI Energy Inc., are beginning an environmental construction program that will reduce their power plant emissions in response to pending new federal environmental rules to improve air quality.

"According to the U.S. Environmental Protection Agency, these new rules will trigger the largest investment in air quality improvement in the history of the United States," said Cinergy Chairman, President and Chief Executive Officer James E. Rogers. "This will be our companies' largest environmental construction program, generating more than 1,000 construction jobs in Indiana and Ohio. Importantly, this plan enables us to burn coal more cleanly and to continue using a low-cost source of generating electricity for our customers."

In two separate rulemakings, the EPA has proposed significant reductions in sulfur dioxide, nitrogen oxide and mercury emissions from power plants. Because the rules are not yet finalized, Cinergy's operating companies are addressing the potential rules in two phases: Phase 1 focuses primarily on projects that would be necessary under a variety of rulemaking outcomes, and Phase 2 centers on projects that can wait until the EPA finalizes certain rules and more information is known about the reduction requirements, deadlines and performance of mercury removal technology. * * *

The companies will finalize Phase 2 of their plan when more information is known about the EPA reduction requirements, deadlines and performance of mercury removal technology. Depending on the final environmental rules, Cinergy's companies estimate that they will invest approximately $1.8 billion to reduce emissions under Phase 1 and more than $2 billion for both phases. In anticipation of these rules, PSI Energy announced earlier this year that it began construction of a new scrubber at Gibson Unit 3 in the spring of 2004. Cinergy's operating companies are also beginning construction on several other projects in the near future, including scrubbers at Cayuga Unit 2 and Gibson Unit 2 in Indiana and Miami Fort Units 7 and 8 in Ohio.

"We need to be in a position to time our construction with spring and fall plant maintenance down-times in order to maintain our ability to provide reliable, economical service and still work toward meeting potential mandated deadlines," Rogers said. "That's why we are starting work now. It also gives us early access to skilled trade labor and construction materials that other companies will also be seeking."

[Update 9/3/04] "Cinergy to curb local air pollution: Power plants to get controls" is the headline to this story today in the Louisville Courier-Journal with further details.

Posted by Marcia Oddi on Thursday, September 02, 2004
Posted to Environmental Issues

Indiana Courts - Chief Justice Shepard Appointment

This release this afternoon from the Indiana Supreme Court:


Indiana Chief Justice Randall T. Shepard has been appointed to the Steering Committee for the 21st Century Conference on Appellate Justice, it was announced last week.

The committee is organizing the 21st Century Conference on Appellate Justice, which will be held in Washington, D.C. in November 2005.

He joins a distinguished panel of jurists, law school deans, and lawyers that is co-chaired by former Florida Supreme Court Justice Arthur J. England, Jr., Russell Wheeler of the Federal Judicial Center, and Gene Flango of the National Center for State Courts. Chief Justice Shepard was appointed to represent the Chief Justices of the state supreme courts.

This conference will examine the future role of appellate courts and follows a similar event held in 1975. The 2005 conference will feature a review of the predictions made 25 years ago and the future role appellate courts will play, particularly in regard to the supply and demand of the court system. The conference will also examine the current challenges facing appellate courts with a focus on the issue of growing litigation volume and the promise offered by emerging technologies.

Posted by Marcia Oddi on Thursday, September 02, 2004
Posted to Indiana Courts

Indiana Decisions - One from Tax Court today

Depuy, Inc. v. Dept. Local Gov. Finance (9/2/04 IndTaxCT- NFP) [Real Property Valuation]

Issues: 1) whether the State Board erred when it refused to assign obsolescence depreciation to Depuys improvement and, 2) whether the State Board erred when it refused to reduce the grade assigned to Depuys improvement. Affirmed.

Posted by Marcia Oddi on Thursday, September 02, 2004
Posted to Indiana Decisions

Law - Electoral math offers number of nightmares

"Electoral math offers number of nightmares" is the headline of a lengthy and fascinating article today in USA Today. Down near the end of the story comes this:

Both campaigns are ready to apply lessons learned from past recount battles.

The battle in Florida four years ago was hardly the first. Republicans cite the showdown over the 8th Congressional District of Indiana in the 1984 election with the kind of emotion that veterans of other battles remembered the Alamo or the sinking of the Maine.

In that contest, state officials certified Republican Richard McIntyre as the winner by 34 votes. But the Democratic-controlled U.S. House, after recounts, declared Democrat Frank McCloskey the winner by four votes the narrowest margin in a congressional race in U.S. history.

After Indiana, Republicans adopted more aggressive tactics, according to Rich Galen, a GOP consultant who was then working for the National Republican Congressional Committee. And they have paid as much attention to the public relations of a recount as its legalities. Both points proved helpful in the presidential recount in Florida four years ago, he says.

Posted by Marcia Oddi on Thursday, September 02, 2004
Posted to General Law Related

Indiana Decisions - 7th Circuit Site Down!

Guess they should have stuck with their old site design. I'll check back later.

Posted by Marcia Oddi on Thursday, September 02, 2004
Posted to Indiana Decisions

Indiana Decisions - Stories today from SD Indiana, Evansville

Two stories today in the Evansville Courier&Press by Maureen Hayden, reporting from the federal district court in Evansville.

"Prisoner released early" is the headline to this story. Some quotes:

After spending more than two years in jail waiting for his day in court, a 24-year-old Evansville man charged in a federal drug conspiracy was released from custody Wednesday.

Timothy J. Wright, who pleaded guilty to a federal drug-trafficking charge in August, faced a prison term of up to 10 years. But he was released by U.S. District Judge Richard Young, who departed from the sentencing guidelines that spell out the punishment in federal cases. * * *

In August, Wright signed a plea agreement that allowed him to plead guilty to a single drug-trafficking charge in exchange for a recommendation of leniency by prosecutors. That recommendation came Wednesday in court, when Assistant U.S. Attorney Matthew Brookman filed a sealed motion indicating Wright had provided "substantial assistance" in what Brookman described as an ongoing investigation of illegal drug trafficking in Southern Indiana.

Brookman recommended Young depart from the guidelines and sentence Wright at a lower level, but still facing some prison time.

Instead, Young departed far enough from the guidelines to give Wright a 27-month prison term. Given that Wright had exceeded that time by more than a month, Young ordered Wright to be released immediately. Young noted that Wright's remorse and how Wright chose to spend his time in jail played a role in that decision.

"Former Whirlpool supervisor loses sexual harassment case," is the headline to this story that begins:
A former Whirlpool production supervisor who sued the company for sexual harassment lost her case in federal court Wednesday, after company officials testified she was the harasser. Tanda L. Ling of Henderson, Ky., claimed Whirlpool officials failed to respond to her reports of sexual harassment and then fired her in retaliation for making the complaint.

But a jury in U.S. District Court in Evansville took about 90 minutes in deliberation to decide Ling didn't have a valid claim. * * *

For what counties are in what division of the southern district, see this explanation on the court's website titled "Organization of Divisions in the Southern District of Indiana".)

Posted by Marcia Oddi on Thursday, September 02, 2004
Posted to Indiana Decisions

Wednesday, September 01, 2004

Indiana Decisions - Supreme Court oral arguments set for September

Below are listed the Supreme Court oral arguments currently scheduled for September, along with links to the Court of Appeals decisions (when published), and links to the summaries prepared by court staff. All of these oral arguments will be available at "Oral Arguments Online."

John Thomas Sees v. Bank One, Indiana, N.A. - Sep 09, 9:00 AM - 9:40 AM [summary]

Michael Johnson v. State of Indiana - Sep 09, 9:45 AM - 10:25 AM [summary]

Hyundai Motor America, Inc. v. Sandra Goodin - Sep 16, 9:00 AM - 9:40 AM [summary]

Brenna Guy v. State of Indiana - Sep 16, 9:45 AM - 10:25 AM [summary]

Gene Lasater v. Donald House - Sep 28, 9:00 AM - 9:40 AM [summary]

Northrop v. General Motors - Sep 28, 9:45 AM - 10:25 AM [summary]

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to Indiana Decisions

Indiana Decisions - One today from Court of Appeals

Jason D. Wilder v. State of Indiana (8/18/04) - apparently this is a corrected version of the opinion originally reported here (3rd down) on 8/18/04).

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to Indiana Decisions

Environment - Indiana air board meeting turns contentious today

The Indiana Air Pollution Control Board meeting had some fireworks this afternoon over a Hoosier Environmental Council (HEC) petition for a new mercury rule. The citizen petition was submitted to the Air Board in June, pursuant to the provisions of IC 13-14-8-5, which allows citizen-initiated rulemaking under certain conditions:

Sec. 5. (a) Any person may present written proposals for the adoption, amendment, or repeal of a rule by one (1) of the boards. A proposal presented under this section must be:
(1) supported by a statement of reasons; and
(2) accompanied by a petition signed by at least two hundred (200) persons.
(b) If the board with rulemaking authority in the subject area to which the rule pertains finds that the proposal:
(1) is not plainly devoid of merit; and
(2) does not deal with a subject on which a hearing was held within the previous six (6) months of the submission of the proposal;
the board shall give notice and hold a hearing on the proposal.
As added by P.L.1-1996, SEC.4.
The dispute today involved a "Proposal for Mercury Rule Workgroup" (available here) prepared for the Board by IDEM, and in particular whether the IDEM proposal for proceeding corresponded to the process set out in the statute.

The South Bend Tribune was there taking copious notes, so I look forward to an interesting story tomorrow and will post the link here.

[Update 9/2/04] No South Bend Tribune story today [wrong, see below], but the Indianapolis Star published this coverage of yesterday's Air Board meeting. Some quotes:

Indiana residents will get a chance to speak up about a proposal to curb mercury emissions from coal-fired power plants -- if they're willing to drive to Indianapolis. The state Air Pollution Control Board voted Wednesday to hold one public hearing, at the board's Oct. 6 meeting, rejecting environmentalists' calls for additional hearings in the state. * * *

Three months ago, the Hoosier Environmental Council presented a petition asking the board to require Indiana coal-burning plants to reduce mercury emissions 90 percent by 2008 and to hold public hearings on the issue.

Although the petition had enough signatures to require the board by law to hold a hearing, some members had said they wanted to wait for a recommendation from a work group of regulators, industry and environmentalists, which would study how strictly mercury emissions should be regulated.

The work group, proposed after environmentalists requested the hearing, also was approved Wednesday and is expected to begin meeting later this month. The group could ask the board to consider more public hearings after it has gathered more information, officials of the Indiana Department of Environmental Management said.

But environmentalists said the public should be heard at the beginning of the process. "The work group is welcome, but is not a substitute . . . for a public hearing," said board member Tom Anderson, executive director of the Save the Dunes Council in Michigan City. "It's a good opportunity to bring issues forward that may need to be addressed."

And here is the South Bend Tribune story. Some quotes:
INDIANAPOLIS -- Indiana waters are so contaminated with methyl mercury that the state warns people not to eat fish from any state river or from 47,000 acres of its lakes.

Yet a state environmental board has rebuffed environmentalists' requests for multiple public hearings on the topic, opting instead for a single public hearing next month and a series of "work-group" discussions by industry, environmentalists and others. * * *

The decision frustrated environmentalists who had formally petitioned the board for hearings, using a state law that requires hearings upon successful filing of a petition. But the law is silent about the number or schedule of hearings, leaving room for dispute between the Air Pollution Control Board and the Hoosier Environmental Council, which filed the petition. * * *

[S]tate environmental officials said the right approach to a complex and likely contentious new pollution rule will require more than public input, especially since data abounds on the technical, financial and environmental aspects of mercury-emissions control.

"We don't need to reinvent the wheel here," said Janet McCabe, assistant commissioner in the Office of Air Quality at the Indiana Department of Environmental Management. McCabe proposed a schedule of meetings and topics for the work group, including one public hearing in Indianapolis in October.

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to Environmental Issues

Indiana Decisions - 7th Circuit Posts Four Today

Republic Tobacco Co v. North Atlantic Trading Co. (ND Ill.)

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. This appeal involves the claims that two competing tobacco companies brought against one anotherone company suing for violation of antitrust laws, the other for defamation. North Atlantic Trading Co., Inc. (North Atlantic) was upset when its efforts to engage new markets for its cigarette papers proved unsuccessful. It blamed its difficulties in cultivating new customers on the business practices of its competitor, Republic Tobacco Company (Republic) and decided to sue. The hard feelings went both ways --Republic became upset with North Atlantic after North Atlantic criticized Republics business practices in two letters sent to customers. Claiming that it had been defamed (among other things), Republic also decided to sue. * * *

[35 pages later] III. Conclusion. For the reasons given in this opinion, we AFFIRM the district courts grant of summary judgment to Republic on its defamation claim and North Atlantics antitrust claims. We AFFIRM the district courts decision with respect to Republics cross-appeal. We VACATE the district courts remitted damages award and order entry of judgment for $1 million in presumed damages and $2 million in punitive damages.

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

Nigussie, Abel M. v. Ashcroft, John D (Petition for Review of an Order of the Board of Immigration Appeals)

Gutierrez, Francis v. AT&T Broadband, LLC (ND Ill.)

Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.
KANNE, Circuit Judge. * * * [B]ecause AT&T Cable Services and AT&T Broadband were not registered assumed names of Chicago Cable under Illinois law and not registered service marks under federal trademark law, Rydel complains that he had no means of identifying his true creditor, resulting in the mistake in state court where he wrongly filed against Corporate Broadband. * * *

Rydel argues vigorously that because Chicago Cable failed to register AT&T Cable Services or AT&T Broadband as assumed names as required by Illinois law and failed to register AT&T Broadband as a service mark until after this litigation was initiated, it was using those names illegally. Because the names were illegal, Rydel claims that Chicago Cables use of those names in its debt collection contacts with him was a per se violation of 1692e. Rydel further argues that a rule allowing an illegal name to be used in debt collection, even if the name has been used by the creditor since the inception of its relationship with the debtor, creates a bad result, when, as here, because of the illegal name, the debtor then has trouble identifying his true creditor.

Without passing on whether Chicago Cables use of such names was actually illegal, we cannot accept either argument here (although Rydels latter argument attracts some sympathy, especially when a corporations structure is as labyrinthine as AT&T Corp.s). This is because the FDCPAs focus is not on whether the name used by the creditor is permitted by law, but on whether the name used results in the debtors deception in terms of what entity is trying to collect his debt. Again, for a creditor to be liable under 1692e, its use of a name other than its own must indicate that a third person is collecting or attempting to collect the consumers debt. 15 U.S.C. 1692a(6). In this case Chicago Cable consistently represented itself as AT&T Cable Services throughout its dealings with Rydel; no deception as to what entity was trying to collect his debt occurred. Thus, summary judgment was properly granted on Rydels 1692e claim.

III. Conclusion. For the foregoing reasons, we AFFIRM the district courts grant of summary judgment in favor of AT&T Broadband, LLC and Communications and Cable of Chicago, Inc.

DIANE P. WOOD, Circuit Judge, dissenting. While it is entirely possible that Francis Gutierrez and Joseph Rydel may ultimately lose in their effort to prove that the defendants committed violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (FDCPA), in my opinion there are disputed issues of material fact that render summary judgment in favor of the defendants inappropriate at this time. This is true even taking the record as my colleagues do. Unlike them, however, I would find that the district court abused its discretion in refusing to permit the plaintiffs to conduct further discovery when AT&T pulled key affidavits out of its hat at the last minute. Indeed, throughout the pretrial proceedings, AT&Ts approach to the case was deplorable. It played a shell game with its various corporate affiliates, forcing the plaintiffs to guess which entity was doing what at each moment. To this day, I am not sure myself. * * *

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to Indiana Decisions

Law - More on Florida Schiavo case

"In Right-to-Die Case, Fla. Justices Question Principle, Specificity of 'Terri's Law'" is the headline to this Miami Daily Business Review story, published today by Law.com. Some quotes:

During oral arguments in a right-to-die case that has sparked national debate, the justices appeared doubtful that the Florida Legislature had the constitutional authority to intervene in the case of Terri Schiavo, a St. Petersburg woman who has been in a persistent vegetative state since suffering a heart attack 14 years ago.

"Isn't it the cardinal principle of separation of powers that a legislature cannot reverse a court decision once it has been made?" Justice Charles T. Wells asked the governor's attorneys. "Isn't this what it all boils down to -- that the Legislature stepped in here and reversed a final decision in a specific case?"

In Bush v. Schiavo, the justices are reviewing the constitutionality of an emergency bill passed by the Legislature in October, which was dubbed Terri's Law. The bill gave Bush the authority to order the reattachment of Schiavo's feeding and hydration tubes six days after they had been removed by court order.

Monday's ILB entry can be accessed here (or scroll down).

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to General Law Related

Environment - Indiana wetlands

"Wetland to strain citys stormwater" is the poorly-worded headline to this story today in the Fort Wayne Journal Gazette. Apparently they mean "strain' as in "filter" rather than "strain" as in "put an additional burden on."

The story begins:

Stormwater runoff is an old problem for cities, so Fort Wayne decided even older tools trees, shrubs and wildflowers would be the best way to manage it. A wetland is being constructed by the city to hold and clean stormwater as part of the Camp Scott Storm Relief Project near McMillen Park.

Tom Hause, of DLZ, the construction management firm for the project, said as long as weather cooperates, the wetland is expected to be completed by the end of September. He said the system on Oxford Street is designed to handle the stormwater of a 350-acre urban area. Thats a lot of runoff, he said.

Greg Meszaros, director of public works and city utilities, said the project was conceived about five years ago after some marshland was discovered at what used to be the Camp Scott Army base. We took the natural marshland there and enhanced it, he said. We hope to kind of harness Mother Nature.

Also of interest today is the publication by IDEM of a new wetlands proposal in the September Indiana Register. Access the draft rule language here. Public comments are due by September 30, 2004. This is for the 2nd Public Comment period. The First Public Comment period has been skipped pursuant to a determination by the IDEM Commissioner under IC 13-14-9-7 that "In cases where the commissioner determines that the rulemaking policy alternatives available to IDEM are so limited that the notice of first public comment period would provide no substantial benefit, IDEM may forgo this comment period and proceed directly to the notice of second public comment period."

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to Environmental Issues

Indiana Decisions - More on McManus decision

The Evansville Courier&Press has a story today on the Indiana Supreme Court ruling yesterday in Paul M. McManus v. State of Indiana (two entries down).

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to Indiana Decisions

Indiana Law - More on "another indictment of an Indiana quasi-public entity"

Updating the Indiana Law Blog entry from Monday on problems at state quasi-public agencies such as the Intelenet Commission and PERF, is this Indianapolis Star editorial published yesterday, August 31st, headlined "State Web scandal: a tangled mess" that concludes:

There is no excuse for state government not providing more oversight of the Web academy. And allegations that Scales signed over checks for himself for thousands of dollars and approved his own expense reports are unconscionable.

Kernan already has been heavily criticized for scandals that exposed criminal wrongdoing in the Indiana Family and Social Services Administration [FSSA], Bureau of Motor Vehicles [BMV] and Public Employees Retirement Fund [PERF]. It appears that the state bureaucracy has let him, and Indiana's taxpayers, down again.

Along with Intelenet, PERF, and the new Indiana Economic Development Commission (IEDC), the BMV Commission is also a kind of quasi-public agency. As I quoted from a Star story in this June 1, 2004 ILB entry:
The governor appoints bipartisan members to the commission, but they are not accountable to the governor or the General Assembly, said Dan Henkel, spokesman for the BMV. It is not clear whether the governor can legally remove a member from the commission. The law does not address that issue.

Henkel maintains the commission was created to have some independence from the governor's office after years of political patronage in the agency. Some officials contend the state should eliminate the commission and make the governor's office directly responsible for the license branches.

Commission members are not accountable for their decisions, said state Rep. Ron Liggett, D-Redkey, who sat on a committee to reform the BMV in 2000. "There is no oversight," he said.

The entry continues:
As I noted in a May 17, 2004 Indiana Law Blog entry about the new Indiana Economic Development Commission, both the BMVC and now the IEDC were established to remove their functions from the direct control of the Governor, and instead place them under the control of an "authority" insulated from the voters by layers of bureaucracy. To my mind, and as I wrote last month, that is not a good thing ...
Interested readers are also referred to this June 3 entry quoting from a Star editorial of that date.

Posted by Marcia Oddi on Wednesday, September 01, 2004
Posted to Indiana Law