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Sunday, October 31, 2004

Environment - EPA cites six Louisville-area facilities for recordkeeping violations

"Industrial facilities fined by EPA: Rubbertown plants cited for deficient records" is the headline to this story today in the Louisville Courier Journal. Some quotes:

The U.S. Environmental Protection Agency has cited six Rubbertown-area industrial facilities for not having adequate plans for protecting neighbors from chemical disasters.

EPA and local regulators called the deficiencies mostly minor, involving record keeping. But a retired chemical plant environmental manager who reviewed the inspection reports for The Courier-Journal took issue with that characterization.

"To the public, I don't think these would be minor," said Carl Hilton, who retired from DuPont in 2002. Hilton said he was troubled that some of the record keeping shortcomings stemmed from what should be routine procedures. "Some of these things are very elementary."

The EPA review of "risk-management plans" in January at 10 industrial sites was the first part of a comprehensive audit of all Rubbertown-area facilities, which the federal agency promised last November.

That promise came after a West Jefferson County Community Task Force study found excessive levels of toxic chemicals in Louisville air.

Posted by Marcia Oddi on Sunday, October 31, 2004
Posted to Environment

Indiana Law - District 46 dispute might continue after Tuesday's election

An AP story today, headlined "LaPlante's spot on District 46 ballot may trigger legal battle following election," reports:

INDIANAPOLIS Republican state Rep. R. Brooks LaPlante will be on the ballot in Western Indiana's House District 46, but a marathon legal battle over the race might continue after Tuesday's election.

The state Democratic Party said Friday that it would not challenge orders by the state Court of Appeals that LaPlante's name be on the ballot in place of Jeffrey Lee's. The court did not require that new absentee ballots with LaPlante's name on them be mailed out unless voters asked for them. * * *

"At this point, we don't plan to pursue any further legal challenges in the District 46 race," Democratic Party spokesman Terry Burns said. "We will let the election take its course and then re-evaluate the situation."

"It is still our contention that Lee is the legitimate Republican candidate and that his two alleged withdrawals were invalid and were just an attempt by Republicans to circumvent state election laws," he added.

Although LaPlante's name will be on the ballot, the Court of Appeals has not ruled on the merits of the case. That means one or both parties could pursue further litigation after the election.

James Bopp Jr., an attorney for the state Republican Party, said he was pleased that LaPlante will be on the ballot Tuesday. But he said that at least 1,000 voters will end up being disenfranchised because they cast absentee ballots with Lee's name on them.

Bopp said that under the court orders and the law, absentee ballots checked as voting a straight Republican ticket would count for LaPlante, but split-ticket ballots in which Lee's name was specifically marked would not count for LaPlante.

Posted by Marcia Oddi on Sunday, October 31, 2004
Posted to Indiana Law

Indiana Law - Spring forward, fall behind, but not in most of Indiana

Most of the rest of the country, but only a few counties in Indiana, moved their clocks back one hour last night. Indiana's time is the focus of several stories today.

The Indianapolis Star has a feature titled "State Line City's residents cope with 'double time': Just by crossing the street, folks in this border town can be an hour ahead or behind." It also has this sidebar headlined "Indiana 1 of 3 holdouts in nation: Most Hoosiers, plus residents of Arizona, Hawaii, don't observe daylight-saving time."

Lesley Stedman Weidenbener of the Louisville Courier Journal has a Sunday column titled "Candidates think it's high time for daylight savings"

Posted by Marcia Oddi on Sunday, October 31, 2004
Posted to Indiana Law

Indiana Law - Another story raises issues about proposed constitutional amendment re property tax

"Tax policy uncertain, critics say: Proposal to amend constitution has some worried about its reach," reads the headline to this story today in the Indianapolis Star. It begins:

Some Hoosier lawmakers say voters should support changing the Indiana Constitution on Tuesday so the inventory tax can be legally abolished and other tax breaks can withstand court challenges.

But early supporters of the proposed change, which took years to get before voters, are lining up now to question whether such an amendment would go too far.

The proposal would remove the 1851 constitutional requirement that homes, land, buildings, equipment and inventories be taxed on a "uniform and equal" basis. Critics fear it would give the General Assembly unprecedented power to rewrite tax laws.

"This is a blank check to a bunch of people who will be glad to spend it for their political ends. It has very dangerous implications," said Morton Marcus, an economist and former professor with Indiana University's Kelley School of Business. "Political changes could occur every two years, and with them, changes to the tax system. Businesses want a stable tax environment."

Posted by Marcia Oddi on Sunday, October 31, 2004
Posted to Indiana Law

Indiana Decisions - Impact of Blakely v. Washington in Indiana focus of story today

"Although 27-year-old Bruce G. Heath was released from prison in August, his appeal might change the Indiana judicial system." That is the lead to this story today in the Fort Wayne Journal Gazette, headlined "Enhanced sentences in question: Supreme Court may require changes." More quotes:

A Noble Circuit Court jury found Heath guilty of criminal recklessness for shooting a gun near a crowd in Kendallville in June 2001, which seriously injured two men.

Subsequently, a judge sentenced Heath to serve 2 1/2 years in prison one year longer than the sentence outlined in state law for a Class D felony. The penalty range for a Class D felony in Indiana is six months to three years in prison, but in order for a judge to impose a sentence longer than 18 months known as the presumptive sentence the judge must establish aggravating factors.

Those factors are circumstances established by the judge that allow the imposition of a lengthier sentence.

In Heaths case, the judge cited three of these aggravators: the crime was committed in the presence of a minor; several unarmed bystanders were placed in extreme danger during the commission of the crime; and the facts of the case were some of the worst hed seen for a Class D felony, the lowest level felony in the state.

Next week, attorney Lorraine Rodts will argue before the Indiana Supreme Court, alleging that Heaths constitutional rights were violated because a jury didnt determine the three aggravators the judge used to impose the longer sentence.

Rodts argument is based on a U.S. Supreme Court decision handed down in June in which a man from Washington state appealed the states sentencing procedures and ultimately won. The Supreme Court ruled that the Washington mans rights were violated because a judge, not a jury of his peers, determined the aggravating circumstances used against him to impose a lengthier sentence. * * *

The decision has not affected the sentencing procedures in Indiana, but Heaths case could. Some area courts and prosecutors already have begun making changes as a safeguard in the event that the Indiana Supreme Court finds that the states sentencing procedures are unconstitutional.

In Allen County, judges have added language to guilty-plea hearings that require offenders to waive their right to have aggravators found by a jury. The Allen County Prosecutors Office also has added similar language to their plea agreements. * * *

Among the regional counties in northeast Indiana, most have not taken any action and are waiting to see how the [Indiana Supreme] court will rule. But Wabash, Huntington and Wells counties also have added language to their plea agreements requiring offenders to waive their rights for a jury to determine aggravators similar to procedures in Allen County. * * *

Counties across the state are handling the impending circumstances differently, said Larry Landis, executive director of the Indiana Public Defender Council. Some county prosecutors are simply not seeking sentences with aggravators involved, while others, such as Marion and Allen counties, are taking precautions by filing notice of potential aggravators well before the trial avoiding any potential appeal based on an enhanced sentence, he said.

If Indianas sentencing procedures are deemed unconstitutional, the effect would be substantial but not a major derailment of the justice system, Landis said.

Essentially, the change would make trials longer. After a jury determines an offender to be guilty, jurors would then be required to hear evidence based on the aggravators prosecutors believe apply to the case. The jurors would then have to deliberate again to determine which, if any, aggravators apply.

For more on the upcoming oral arguments in Bruce Grant Heath v. State and Adolphe Smylie v. State, see this September 27th ILB entry.

Posted by Marcia Oddi on Sunday, October 31, 2004
Posted to Indiana Decisions

Saturday, October 30, 2004

Indiana Law - Can a council grant a multiyear employment contract that extends beyond the terms of a majority of its members?

Can a town council grant a multiyear employment contract that extends beyond the terms of a majority of its members? That question is the subject of a lawsuit reported today in the Gary Post-Tribune:

MERRILLVILLE Lake Superior Court Judge Robert Pete is expected to render a decision soon on whether the towns two-year, nine-month contract with ex-Police Chief John Shelhart is valid. * * *

At issue is whether a council can grant a multiyear employment contract that extends beyond the terms of a majority of its members. In March 2003, five of seven council members who hired Shelhart lost their seats. New members fired Shelhart as chief and mounted a legal challenge questioning the validity of the old contract. They are refusing to pay Shelhart the $125,000 his contract stipulates.

[Attorney David Westland, counsel for Shelhart] emphasized that he doesnt dispute that Shelhart can be fired by a new council, but he said that council should follow the provisions of the contract and pay Shelhart $125,000 in severance pay. He cited cases of precedent where school boards issued contracts with superintendents that extended way beyond the terms of sitting board members.

Westland said thats because such contracts are made between the employee and the entity itself, not distinct members of the entity. Like a school board, Westland argued, the council is a governing body of officials elected to four-year terms. He said the council already has a practice of giving lengthy service contracts to agencies like the Lake County Solid Waste District. Theyve run through multiple terms of shifting councils, he argued.

[Attorney Steve Bower, the towns representative] countered that a service contract is different from an employment contract. He downplayed Westlands school board parallel, saying the police chiefs position was more like a town-hired attorney than a superintendent.

Bower cited an Indiana case where a court ruled that municipal officials could not contract with an attorney beyond their seated terms. He said much like attorneys, police chiefs share a confidential relationship with elected officials and therefore must serve at the officials discretion.

An old council cannot bind a future council. It runs counter to the discretion given by the state, Bower told Pete. Bower said the council members who issued Shelharts contract had no assurance they would retain their seats and unfairly made decisions that would affect the town past their elected terms. Bower said the right of new members to choose upper-ranking policymakers and staff was taken away.

Westland said no power to terminate and choose has been limited. He said it might not have been politically wise for the 2003 council to grant the long contract to Shelhart, but said that wasnt a matter for the court to rectify. He said voters punish unwise elected officials. Westland said with a long contract, an employee agrees to a lower salary in exchange for stability.

Bower asked the judge to consider a recent New Chicago decision where Lake Superior Judge Gerald Svetanoff ruled that 2003s outgoing New Chicago Town Council members could not deprive the 2004 incoming council of its power to appoint department heads. Westland contended Merrillville leaders were technically not lame-duck since no primaries or elections had been held when the contract was issued. They were not clairvoyant ... They didnt know they werent going to be there for Shelharts term, Westland said.

Bower said if the judge rules that the contract is invalid, the litigation with Shelhart is over. But if the contract is ruled valid, litigation would continue on particular clauses.

Posted by Marcia Oddi on Saturday, October 30, 2004
Posted to Indiana Law

Law - Good election law site

The Moritz College of Law at The Ohio State University has a very useful election law site, Election Law @ Moritz, with "information and insight on the laws governing federal, state and local elections."

Posted by Marcia Oddi on Saturday, October 30, 2004
Posted to General Law Related

Indiana Courts - Six judges up for retention in Lake County

The Munster Times reports today: "Six judges up for retention: Danikolas faces disciplinary charges after election." Some quotes:

A veteran Lake Superior Court judge will face the voters Nov. 2 during the greatest crisis of his career.

Judge James Danikolas, who sits in Gary, doesn't have a political opponent to fear in his bid to remain on the bench until 2010. But two days after the election he will have to stand before a tribunal of fellow judges on disciplinary charges that could result in his removal from office.

Traditional politics is out of order for Danikolas and five Superior Court criminal and civil judges on the ballot. They are appointed through a merit selection system designed to be independent of party politics. The governor appoints them. No one else can run for that office during a probationary period of two to four years. The voters chose either to retain or reject them.

Voters have a similar choice with Civil Division Judges William E. Davis of East Chicago, John R. Pera of Crown Point, Robert A. Pete of Hammond and Diane Kavadias-Schneider of Hammond, and Criminal Division Judge Thomas P. Stefaniak of Crown Point. Those receiving more than 50 percent of the vote win six new years in office. The losers are replaced by new gubernatorial appointees. * * *

The Indiana Judicial Commission sent notice Tuesday it is alleging Danikolas committed judicial misconduct when he fired former Magistrate Kris Costa-Sakelaris last May 1 over a dispute from a Jan. 31, 2001, child support hearing when Sakelaris jailed a man for failure to make child support payments and submit documentation of his assets.

Danikolas released the man five days later without notice or a hearing. The Indiana Supreme Court issued a public reprimand to Danikolas over the incident. Danikolas fired Sakelaris the following week on grounds she was disloyal to him.

Posted by Marcia Oddi on Saturday, October 30, 2004
Posted to Indiana Courts

Environment - Stories today

Pesticides. "Study of Pesticides and Children Stirs Protests: Staffers Fear EPA Project Endangers Participants" is the headline of this Washington Post story today. It begins:

An Environmental Protection Agency proposal to study young children's exposure to pesticides has sparked a flurry of internal agency protests, with several career officials questioning whether the survey will harm vulnerable infants and toddlers.

The EPA announced this month that it was launching a two-year investigation, partially funded by the American Chemical Council, of how 60 children in Duval County, Fla., absorb pesticides and other household chemicals. The chemical industry funding initially prompted some environmentalists to question whether the study would be biased, and some rank-and-file agency scientists are now questioning whether the plan will exploit financially strapped families.

In exchange for participating for two years in the Children's Environmental Exposure Research Study, which involves infants and children up to age 3, the EPA will give each family using pesticides in their home $970, some children's clothing and a camcorder that parents can keep.

Development.The Louisville Courier-Journal has a story today on real estate development. Some quotes:
The developer of a planned subdivision along the Ohio River shoreline in Jeffersonville is suing the city's Plan Commission and seeking damages that one lawyer said could reach millions of dollars. The Perrin Pointe subdivision at 2307 Utica Pike already is the subject of one lawsuit involving neighborhood residents who oppose the project. A second suit, filed Thursday in Clark Circuit Court, claims that the Jeffersonville Plan Commission's decision to reject part of the subdivision plan was illegal and arbitrary. * * *

Perrin Pointe has become the focus of a heated community debate over riverfront development. A number of Utica Pike residents want to preserve the shoreline neighborhood, which sits on the Ohio River Scenic Byway, and features mostly older homes with large front lawns looking out over the water toward Jefferson County, Ky.

Harding wants to turn part of an old dairy farm with a single-family residence into an upscale community with 26 patio homes selling for as much as $300,000 each. The Plan Commission has approved certain aspects of the project, and members of the City Council have said the patio homes would boost the city's tax base. * * *

The Plan Commission voted 6-5 last Tuesday not to approve Perrin Pointe's so-called detailed development plan, which covers construction details, landscaping and other items. Commission members cited traffic, aesthetics and density as reasons for the denial.

Without that approval, the project can't proceed. The suit filed Thursday contends that the commission's action was "vague," "irrational" and violated city ordinances. It also contends that the commission never suggested changes to the subdivision in previous meetings. The suit seeks legal fees, economic damages and a reversal of this week's decision.

Posted by Marcia Oddi on Saturday, October 30, 2004
Posted to Environment

Law - A daily dose of election law stories

"In Ohio Courts, It's Almost Like Florida in 2000: Judges are awash in election-law cases and challenges to voter registrations in a state that could be critical to winning the presidency." That is the headline to this story today in the LA Times. It begins:

CINCINNATI As Jeff Hirsh, a television news reporter here, rushed to a federal court hearing Friday on a usually obscure issue of election law his second election-law hearing of the day he turned to a visitor with a greeting:

"Welcome to Florida minus the beach."

With 20 electoral votes, Ohio may be critical to victory for either President Bush or Senator John F. Kerry. Election-related litigation is rapidly spreading through its courts.

On Friday, there was action on three fronts in the stately Potter Stewart courthouse. The building was erected in 1936 the year Franklin D. Roosevelt won all but two states in the presidential election.

Other cases erupted in cities across the state, including Columbus, Akron and Cleveland.

And the Washington Post has a story today headlined "Another Wait Feared In Knowing the Winner." Some quotes:
After four years of legislation, technology upgrades and other reforms aimed at avoiding a repeat of the hotly contested 2000 elections, a growing number of government officials and voting experts are preparing for the unthinkable.

Americans may not know who won the presidential race on Tuesday night. Again.

A surge in new voter registrations, coupled with widespread use of absentee and provisional ballots, could provide enough uncertainty in key states to force a delay in announcing a clear winner in the race between President Bush and Sen. John F. Kerry, according to many election officials and observers.

Legal battles in closely fought precincts could also cause or exacerbate delays, authorities said.

Meanwhile, Indiana may have its own provisional ballot issues, judging from this AP story:
CROWN POINT, Ind. -- Twenty percent of the provisional ballots cast in the East Chicago special Democratic mayoral primary were thrown out because poll workers did not properly sign the forms.

The 54 ballots tossed would not have changed the outcome of the special vote, but some wonder if confusion about provisional ballot procedures could affect Tuesday's election, the Post-Tribune of Merrillville reported today. * * *

Fifty-four votes were not counted because of poll workers' mistakes. Another 20 ballots were voided because the people who cast them were not registered to vote.

Established as part of the federal Help America Vote Act of 2002, provisional ballots allow people to vote even if their names are not on voter rolls at precinct polling places. The votes are set aside and reviewed one-by-one after the election. Officials count those ballots in the election results if they determine voters were incorrectly removed from voting lists and their registration is legitimate.

To thwart attempts at election fraud, two election officials must write their initials on a paper provisional ballot for it to be legitimate. On at least 20 percent of the provisional ballots cast in East Chicago, either one set or both sets of initials were missing from the ballots.

Republican Lake County Assistant Election Administrator Roberta Vierk said the East Chicago special primary was only the second election in which provisional ballots were used and noted a lower percentage of the forms were rejected than in the spring 2004 primary.

Before Tuesday's general election, county officials will speak to any poll clerks who did not follow the provisional ballot rules. But there is no time to try to train poll workers again, according to election office supervisor Michelle Fajman.

Posted by Marcia Oddi on Saturday, October 30, 2004
Posted to General Law Related

Law - Interesting Chicago-area gun law story today

"Wilmette man loses gun law challenge: Judge says village can bar weapons" read the headline to this story today in the Chicago Tribune. Some quotes:

A Cook County judge Friday rejected the arguments of a Wilmette man who claimed his constitutional rights were violated after he shot a home intruder and then was cited for violating a village ordinance banning possession of a handgun.

Hale DeMar, who shot Morio Billings of Chicago after Billings broke into his home in December, challenged the village ordinance under which he was fined $750.

In a 16-page order, Circuit Judge Thaddeus Machnik dismissed his claim, disputing DeMar's argument that his right to privacy under the 14th Amendment includes the right to possess a handgun in his home.

"We are pleased with the decision," said Timothy Frenzer, Wilmette's village attorney. "The law is very clear on this. Municipalities have the right to regulate handguns and even prohibit handguns." * * *

On Friday, Machnik's order concluded, in part: "The United States Supreme Court, the Seventh Circuit, and the Illinois Supreme Court have categorically held that the right to possess a firearm, and particularly a handgun is not a fundamental right." The judge also stated that municipalities have a "legitimate governmental interest" in reducing firearm-related deaths and injuries.

He listed as examples, "unplanned criminal shootings in the heat of passion or in overreaction to fears of assault or within the context of domestic violence, accidental shootings by children or by adults who are unaware that a handgun is loaded, and suicides."

Posted by Marcia Oddi on Saturday, October 30, 2004
Posted to General Law Related

Law - Following Rehnquist: Chief Justice's Illness Brings Questions on Court's Transition

"Following Rehnquist: Chief Justice's Illness Brings Questions on Court's Transition" is the title of this analysis piece by Charles Lane today in the Washington Post. Some quotes:

The prospect of a shorthanded or otherwise disrupted court cannot be ruled out, especially if the confirmation battle over a successor turns as ugly as the last four years of Senate fights over appeals court nominees have been. * * *

If Rehnquist's position were to become vacant before Jan. 20, when the next presidential term begins, President Bush would have the authority to nominate a successor whether or not he is reelected on Tuesday. White House aides have a full list of Supreme Court candidates vetted and ready to go, though it has not yet been narrowed down to one or two finalists, former Bush administration officials who took part in the process said.

If the Senate were not in session, Bush could fill the seat through a recess appointment. That justice would remain on the bench until the end of the next Senate session -- unless, upon its return from recess, the Senate confirms or rejects the Bush nominee or, if Kerry becomes president, confirms someone else.

Bush has used recess appointments to put judges Charles W. Pickering Sr. and William H. Pryor Jr. on the federal appeals court. Two of the Supreme Court's most distinguished members, Chief Justice Earl Warren and Justice William J. Brennan Jr., were recess appointees, installed by President Dwight D. Eisenhower after their predecessors' deaths and confirmed by acclamation when the Senate returned. * * *

Republicans knowledgeable about the administration doubt that Bush would attempt a recess appointment if he is reelected. They said that he resorted to recess appointments for appeals judges only after he tried the normal route and was thwarted by Democratic filibusters.

"A recess appointment would generate enormous ill will on the Hill, which would cost votes on the floor later on," said Bradford Berenson, a former associate White House counsel who worked on judicial nominations.

Posted by Marcia Oddi on Saturday, October 30, 2004
Posted to General Law Related

Friday, October 29, 2004

Indiana Decisions - Three today from Court of Appeals

Kimberly Barclay, et al. v. State Auto Insurance Companies (10/29/04 IndCtApp)[Insurance]
SHARPNACK, Judge

Kimberly Barclay (Kimberly) and Andrew Newton appeal the trial courts grant of summary judgment to State Auto Insurance Companies, f/k/a Meridian Mutual Insurance Company (State Auto). Kimberly and Newton raise one issue, which we restate as whether the trial court erred by finding that Kimberlys insurance policy with State Auto did not provide coverage for her collision with Newton because Kimberly was driving her husbands vehicle at the time of the collision. We reverse and remand. * * *

Here, Kimberly was occupying a vehicle which was owned by a family member, i.e. Kenneth. As a consequence, under the circumstances of this case, the Policy exclusion of liability coverage for the use of Kenneths automobile under B.3 of Kimberlys Policy is subject to the exception that the exclusion of liability coverage does not apply to Kimberly while she was occupying Kenneths automobile. Because the exception to the exclusion B.3 applies, the Policy provides coverage to Kimberly for the collision. Consequently, the trial court erred by granting State Autos motion for summary judgment. See, e.g., Bosecker, 724 N.E.2d at 245 (holding that the insured was entitled to coverage and reversing the trial courts grant of summary judgment to the insurer).

For the foregoing reasons, we reverse the trial courts grant of summary judgment to State Auto and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and RILEY, J. concur

Pozzo Truck Center, Inc. v. Crown Beds, et al. (10/29/04 IndCtApp) [Civil Procedure]
MATHIAS, Judge
Pozzo Truck Center, Inc. (Pozzo) filed a complaint alleging breach of contract against Crown Beds, Inc. and Cathy Foster (Crown) in Lake Superior Court, Small Claims Division. The case was dismissed for lack of personal jurisdiction. Pozzo appeals arguing that the trial court erred when it determined that Crown did not have sufficient minimum contacts to establish jurisdiction in Indiana courts. Concluding that the trial court erred in its determination, we reverse. * * *

While the burden that Crown faces in defending itself in an Indiana court is heavier than the burden of defending against a suit filed in Missouri, that factor alone is not sufficient to defeat the existence of jurisdiction. See North Texas Steel, 679 N.E.2d at 519. Further, Crowns inconvenience is outweighed by Pozzos interest in adjudicating the dispute in the forum where the damage was realized and Indianas interest in protecting its business owners from defective services. There do not appear to be more witnesses in Missouri than Indiana and it is not clear that there will be greater travel expenses or inconvenience for those involved in the litigation if the suit is tried in Indiana. Finally, it does not appear that any substantive social policies will be affected by the outcome of this controversy. For all these reasons, we find that asserting jurisdiction over Crown in Indiana comports with traditional notions of fair play and substantial justice.

Conclusion. The trial court erred by granting Crowns motion to dismiss for lack of jurisdiction. Reversed.
BARNES, J., concurs.

CRONE, J., dissents with separate opinion:
In my view, the record before us establishes that even if Crowns contacts with Indiana fall under the long-arm provisions of Trial Rule 4.4(A), the assertion of personal jurisdiction in this case offends due process. Accordingly, I respectfully dissent. * * *

Kevin Massey v. State of Indiana (10/29/04 IndCtApp) [Criminal Law & Procedure]
MAY, Judge
* * * Officer Crookes affidavit contained sufficient evidence to allow the magistrate to reasonably infer there was probable cause to justify the search, and the evidence supported Masseys constructive possession of the cocaine and handguns. However, the trial court erred when it sentenced Massey to more than fifty-five years of imprisonment because his convictions arose from a single episode of criminal conduct, and we must remand for the trial court to sentence Massey in accordance with Ind. Code 35-50-1-2. Affirmed in part and reversed and remanded in part.
VAIDIK, J., concurring in result.

SULLIVAN, J., concurring with separate opinion.
* * * I also concur that Masseys possession of a handgun and possession of the large amount of cocaine involved in his Dealing Cocaine conviction arose out of the same criminal episode and that therefore, his consecutive sentences may not exceed fifty-five years. I write separately upon this issue however, to express my view that even if Ratliff v. State, 741 N.E.2d 424 (Ind. Ct. App. 2000), trans. denied, was correctly decided under the facts of that case, Ratliff is distinguishable. Nevertheless, my assessment of Indiana case law tells me Ratliff was wrongly decided. As Judge Mays lead opinion in this case notes, the crimes in Ratliff did not occur simultaneously. That fact, however, does not justify a conclusion to the effect that in order to have a single criminal episode all the crimes under analysis must have been committed simultaneously.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Indiana Decisions

Indiana Decisions - Supreme Court's schedule for November 2004

Here is the Supreme Court's schedule for November 2004.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Indiana Decisions

Environment - Update to "Two medical waste sites get an OK"

Earlier today I posted an entry labeled "Environment - Two medical waste sites get an OK.' Scroll down six entries to read it. I ended with "I hope to obtain a copy of the state environmental law judge's ruling and will post it here." Thanks to the quick response of the Indiana Office of Environmental Adjudication, I now have a copy - you may access it here.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Environment

Indiana Decisions - 7th Circuit posts three today

Worldwide Street Preachers' Fellowship v. Peterson, Bart (SD Ind., John Daniel Tinder, Judge)

Before CUDAHY, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Worldwide Street Preachers Fellowship and its members (collectively SPF) filed an action pursuant to 42 U.S.C. 1983 against the City of Indianapolis and its officials (collectively the City). The complaint alleged that the defendants, operating under the color of state law, had interfered with SPFs street preaching activities during the parade held in conjunction with the Indianapolis Five Hundred mile race and, consequently, had deprived them of their rights to the free exercise of religion, to freedom of speech and to assembly, in violation of the First and Fourteenth Amendments to the Constitution of the United States.

SPF moved for a preliminary injunction to prevent the City from restricting its activities during the 2004 parade. The district court granted in part and denied in part this motion. SPF appeals. For the reasons set forth in the following opinion, we have concluded that the issue of whether a preliminary injunction ought to have been issued is moot. Accordingly, we must dismiss SPFs appeal.

Dandy, Brenda v. UPS Inc (ED Wis.)
Before FLAUM, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Brenda Dandy, a United Parcel Service (UPS) employee, alleged that her employer discriminated against her on the basis of gender and race by: (1) creating a hostile work environment; (2) failing to promote her; (3) paying her a lower salary than her white counterparts; and (4) retaliating against her. The district court granted UPS summary judgment, dismissing all of Dandys claims. It found that Dandy failed to establish a prima facie case of hostile work environment and assumed arguendo that Dandy established a prima facie case for her remaining allegations, but reasoned that dismissal was proper because she failed to prove that UPSs business decisions were a pretext for discrimination. Because we find that Dandy failed to establish a prima facie case for any of her claims, we affirm.
Kay, Maung Z. v. Ashcroft, John (Petitions for Review of Orders of the Board of Immigration Appeals)
Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Maung Zar Kay, a Burmese national, born February 4, 1978, fled to the United States in October 1997. He was admitted into this country as a tourist seeking asylum on October 8, 1997. The Board ordered Kay removable in absentia on September 9, 1998. Kay sought to reopen the proceedings for substantive consideration of his asylum and withholding of removal petition. He also filed a subsequent motion to reopen for consideration of his eligibility for relief under the Convention Against Torture (CAT). The Board denied both motions. We affirm the Boards decision to deny Kays motion to reopen to seek asylum and withholding of removal because he did not show that his failure to appear was due to exceptional circumstances. However, we reverse the Boards decision to deny Kays motion to reopen for consideration of his CAT eligibility as the decision lacked a reasoned basis.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Indiana Decisions

Indiana Decisions - More on The latest chapter in the District 46 saga

As noted late yesterday (scroll down 5), the Court of Appeals at 6 p.m. last evening granted the LaPlante/Republican Party's motion for a stay of the Vigo County court order. Here is the Terre Haute Tribune-Star's report today. Some quotes:

An appeals court has delayed its ruling on the House District 46 controversy, effectively allowing the Republican Party to take off Jeff Lee's name from the ballot for Tuesday's election.

The ruling means a Vigo County court's decision that Lee cannot be replaced on the ballot will not take immediate effect.

The Appeals Court of Indiana decided late Thursday to stay (put off ruling on) the matter, "pending further order of the court."

"The issuance of the stay ... (has) the effect of disenfranchising the fewest number of voters," reads the court's written ruling, and "allows the parties the full opportunity to develop their positions and present their arguments in court." * * *

"The Democrats' effort to deny a choice to the voters in House District 46 has been defeated," said Jim Bopp on Thursday, attorney for Indiana Republicans, "but at a cost."

That cost was the disenfranchisement (deprivation) of "thousands of voters who would've voted for LaPlante" by absentee ballot, he said.

Bill Groth, attorney for Indiana Democrats, responded by pointing out that the court did not rule for or against either side, but simply delayed ruling.

"It's important to remember that Jeffrey Lee was the choice of the voters and Brooks LaPlante was the choice of a dozen party leaders at a caucus," he said. He noted that two trial court judges ruled that Lee "had not moved at the time he said he moved" before the appeals court stayed the matter.

And here is a copy of yesterday's Court of Appeals order so that you may read it for yourself. (Thanks to the Indiana Clerk's Office for immediately responding to my request for this document.)

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending October 29, 2004

Here is the Indiana Supreme Court's transfer list for the week ending October 29, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. No cases were granted transfer by the Supreme Court today.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Indiana Transfer Lists

Indiana Courts - Judge Sharpnack to Join CLE Commission

The Supreme Court has just issued a press release announcing:

Indiana Court of Appeals Judge John T. Sharpnack, has been appointed to the Supreme Courts Commission on Continuing Legal Education, Chief Justice Randall T. Shepard announced today.

Judge Sharpnack term will begin on January 1, 2005 and end December 31, 2009.

Judge Sharpnack will be a tremendous asset to the CLE Commission. Not only is he a distinguished jurist, but his background in private practice will be bring an important perspective to the Commissions work, said Chief Justice Shepard.

Access the complete press release here.

As readers may recall, Judge Sharpnack's name will be on the ballot Tuesday, as he is up for retention via a yes-or-no vote. See earlier ILB entries here and here.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Indiana Courts

Indiana Law - Another view on the proposed tax amendment to the Indiana Constitution

Lesley Stedman Weidenbener of the Louisville Courier-Journal has a story today headlined: "Tax amendment sparks some debate: Property levies would be affected." Some quotes:

INDIANAPOLIS Indiana voters face three constitutional questions on Tuesday's ballot, but only one a proposed change in property taxation has generated debate.

Public Question 1 asks voters to give lawmakers the authority to cut taxes on some classes of property owner-occupied homes, business inventory and commercial equipment.

If approved, the change would legitimize tax breaks that already exist in law, including the homestead tax credit that significantly reduces property taxes for owners of the homes they live in. That credit was used to blunt the effect of recent court-ordered changes in the state's assessment system. * * *

The change also would make it easier for the state to eliminate the property taxes that companies pay on their inventories. Under current state law, companies must pay the tax, although by 2007 all companies will receive a credit for their payments on their income taxes. If the amendment is approved, the companies simply wouldn't pay the tax. * * *

If the constitution is amended, lawmakers could more freely differentiate among property owners.

Not everyone thinks that's a good idea. The Indiana Farm Bureau opposes the amendment, fearing that the property tax burden will shift from homeowners and businesses toward farmers.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Indiana Law

Environment - Two medical waste sites get an OK

"Two medical waste sites get an OK" is the headline to this story today in the Gary Post-Tribune. Some quotes:

GARY Residents protests and last-ditch efforts by local officials dont seem to be slowing plans to open two medical waste processing plants in northwest Indiana.

Officials at Midwest Medical Solutions said they are going ahead with plans to open the states first medical-waste processing plant in Gary near 15th Avenue and Interstate 65 after a state environmental law judge ruled against county officials claim they should have a say in permitting the plant to operate.

The state Department of Environmental Management this week began processing a permit application for a similar plant in an industrial site along Canal Street in East Chicago.

Here are some quotes from the story published in the Louisville Courier-Journal, headlined "Company to proceed with medical-waste processing plant."
GARY, Ind. (AP) -- Midwest Medical Solutions is going ahead with plans to open the state's first medical-waste processing plant in Gary despite protests by residents and opposition by local officials.

Jeff Langbehn, director of the Lake County Solid Waste Management District, said Thursday he would urge the district to go to court to fight a decision by a state environmental law judge, who ruled against county officials' efforts to halt the plans.

"If we don't appeal this, then anybody that wants to can just go to the state and get the approval," Langbehn said.

I hope to obtain a copy of the state environmental law judge's ruling and will post it here.

Posted by Marcia Oddi on Friday, October 29, 2004
Posted to Environment

Thursday, October 28, 2004

Indiana Decisions - The latest chapter in the District 46 saga [Updated]

I have just received a copy of this press release from attorney James Bopp, Jr., counsel for the Republican Party:

Indiana Court of Appeals Stays Vigo Superior Court Preliminary Injunction Order

Last Thursday, October 21, 2004, the Marion Superior Court issued a final order requiring that R. Brooks LaPlante be placed on the ballot as the Republican candidate for House District 46 and on Tuesday, October 26, 2004, the Indiana Court of Appeals refused to stay that portion of the order. Yesterday, the Vigo Superior Court, Special Judge Tom Johnson issued a preliminary injunction requiring that Jeff Lee remain on the ballot as the Republican candidate for House District 46. This ruling was issued despite the fact that Judge Johnson was aware of both the Marion Superior Court and the Indiana Court of Appeals Orders. This order directly conflicts with and contradicts the Marion County order.

As soon as the Vigo County Order was issued, the Republican Party filed an appeal with the Indiana Court of Appeals. After Judge Johnson denied the Republican Partys motion to stay his preliminary injunction order pending the outcome of the Republican Partys appeal, the Indiana Court of Appeals, at approximately 6 p.m. [today, Thursday, Oct. 28, 2004] granted the motion for stay.

Therefore, with the election less than five days away, the Indiana Court of Appeals has effectuated Indianas public policy of maximizing voter choice and competitive elections. Because the stay was granted, the Clay, Monroe, Owen, and Vigo County Election Boards are no longer handcuffed by the conflicting orders and should send out absentee ballots with the name of R. Brooks LaPlante as the Republican candidate for House District 46.

James Bopp, Jr., counsel for the Republican Party, said The ruling by the Indiana Court of Appeals has thwarted the Democrat Partys efforts to deny District 46 voters a choice in this election by keeping Brooks LaPlante off the ballot. Because Lee, if elected, is ineligible to serve, the Democrats would have seized the House District 46 seat through the courts and not by the will of the people, if they had been successful in keeping Lees name on the ballot.

James Bopp, Jr. has a national constitutional law practice.
[Updated 10/29/04] Two stories this morning: the AP reports here that "Court says LaPlante should be on ballot"; the Indianapolis Star reports here, in a story headlined "Rep. LaPlante back on ballot," that:
In yet another court decision about who should be on the ballot in Indiana House District 46, the Indiana Court of Appeals on Thursday vacated a Vigo County judge's order and paved the way for Rep. R. Brooks LaPlante to be Tuesday's Republican nominee.

Wednesday, a Vigo County judge declared that Jeff Lee, the winner of the May primary, didn't legally withdraw from the race and must stay on the ballot. But Thursday's unanimous appeals court ruling canceled that order.

That means an order from last week, issued by Marion Superior Court Judge Gary L. Miller, still stands. Miller ruled that LaPlante is the rightful candidate and should be on the ballot. Vern Tincher is the undisputed Democratic nominee. * * *

In its order, the appeals court said adequate remedies exist in the event LaPlante is wrongly placed on the ballot, but "there is no adequate remedy if he is wrongly kept off the ballot."

I'm trying to obtain a copy of this latest Court of Appeals order - please let me know if you can help.

Posted by Marcia Oddi on Thursday, October 28, 2004
Posted to Indiana Decisions

Environment - Mayor Daley named a top environmentalist

Earlier this month, Chicago's Mayor Daley was cited for openness in government -- this entry quotes the Chicago Tribune as reporting: "Mayor Richard Daley, whose stealthy midnight raid last year resulted in the surprise shutdown of Meigs Field, accepted a first-place award Wednesday from a Washington-based group for openness in government."

Today the Chicago Sun-Times announces that Mayor Daley "is one of the 50 top environmental power brokers in the nation, Organic Style magazine says in its November issue." The Sun-Times headline: "Magazine gushes over Daley's environmental record."

And here, from Organic Style, is the Organic Style Environmental Power List. Mayor Daley shares space with other noted environmentalists such as Leonardo DiCaprio, Cameron Diaz and Bette Midler.

Posted by Marcia Oddi on Thursday, October 28, 2004
Posted to Environment

Indiana Decisions - Four Today from Court of Appeals

Christopher Schmidt v. State of Indiana (10/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

* * * Although the trial court erred when it instructed the jury that it could consider Schmidts refusal to submit to a chemical breath test as evidence of intoxication, we conclude that that error was harmless. We further conclude that the Pirtle doctrine does not apply to chemical breath tests. The prosecutors statement during closing argument was not improper, and the trial court did not abuse its discretion regarding any of the evidentiary rulings at issue on appeal. Affirmed.

BARNES, J., concurs with separate opinion.
I concur in the majority opinion in full, and write to acknowledge that I voted to concur in the Luckhart decision and its approval of an instruction similar to the one disapproved of in this case. At the time Luckhart was issued, our supreme court had not yet decided Ludy. Whatever the sequence, I am convinced that Dill and Ludy compel the result reached here and that my vote in Luckhart would not be the same today, given the logic of the majority opinion and the combined effect of the Ludy and Dill decisions.

SULLIVAN, J., dissents with separate opinion.
Although I concur with respect to the majority opinions treatment of Issues One, Three, Four, and Five, I respectfully dissent with respect to Issue Two and would reverse the judgment and remand for a new trial. * * *

In my view, the trial courts exclusionary ruling as to Dr. McCoy was extended beyond what the trial court had actually said in its ruling upon the States Motion in Limine. The in-trial exclusionary ruling clearly indicated that it would have been futile for defense counsel to attempt to lay a foundation for admission of Dr. Pascuzzis report and to call Dr. McCoy as a witness.

Had Dr. McCoy been permitted to testify, it is quite possible that the jury would have virtually discredited the validity of the field sobriety balancing tests and perhaps reached a different result in its verdict. For this reason I would reverse the judgment and remand for a new trial.

Eagledale Enterprises, LLC, d/b/a Club Mecca v. Danielle Cox & Martine Spencer (10/28/04 IndCtApp) [Torts]
ROBB, Judge
Eagledale Enterprises, LLC, doing business as Club Mecca (the Club), appeals the trial courts judgment in favor of Martine Spencer and Danielle Cox that awarded them damages for injuries they suffered as a result of an altercation that occurred inside the Club. We affirm. * * *

Accordingly, we hold the trial court did not err in denying the Clubs motion to dismiss. Furthermore, sufficient evidence existed to support the trial courts findings that the Club breached its duty to protect its patrons and that such breach proximately caused Spencer and Coxs injuries. For these reasons, we affirm the judgment of the trial court. Affirmed.
KIRSCH, C.J., concurs.

BAKER, J., dissents with opinion.
I respectfully dissent. In my view, the trial court should have granted the Clubs motion to dismiss Spencers complaint for lack of subject matter jurisdiction in light of the Exclusivity Clause of the Indiana Workers Compensation Act (the Act). * * *

I must concludefor all these reasonsthat the evidence was insufficient to establish a causal relationship between the Clubs alleged breach of duty and the injuries that were sustained in the altercation. Hence, I vote to reverse the judgment of the trial court.

Kristin Hill v. Ebbets Partners Ltd. (10/28/04 IndCtApp) [Petition for Rehearing]
Baker, Judge
[Here the Court denies the petition because the petition and a request for an extension of time were filed one day after the deadline had passed.] "Thus, we are without legal authority to grant her request for rehearing, and the opinion is certified by operation of the Rules of Appellate Procedure." [However, the Court continues] "Nevertheless, we do have authority to sua sponte modify our opinions." [The Court then proceeds to clarify dicta in the opinion.]
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
Ronald C. Howard, Jr. v. State of Indiana (10/28/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
Appellant-Defendant, Ronald C. Howard Jr. (Howard), appeals his conviction for Count I, child molesting, a Class A felony, Ind. Code 35-42-4-3(a)(1). * * *

Based on the foregoing, we conclude that (1) no fundamental error occurred when C.C., a minor victim of child molestation, was allowed to testify prior to the trial court determining her competency to testify; (2) the State did not violate Howards right of confrontation by presenting C.C.s deposition testimony to the jury after the trial court declared her to be unavailable; (3) the trial court did not abuse its discretion in admitting hearsay evidence; (4) the trial court did not abuse its discretion by denying Howards request to introduce evidence which would violate his own motion in limine; (5) the trial court did not err in denying Howards motion for mistrial; (6) the trial court properly instructed the jury regarding deposition testimony; and (7) the jurys verdicts were not impermissibly inconsistent. Affirmed.
CRONE, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Thursday, October 28, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts three today

USA v. Eberhart, Ivan (ND Ill.)

Before FLAUM, Chief Judge, and BAUER and POSNER, Circuit Judges.
FLAUM, Chief Judge. Ivan Eberhart was convicted by a jury of conspiring to distribute cocaine. Eberhart subsequently moved for a judgment of acquittal or in the alternative for a new trial. The district court denied the motion for judgment of acquittal, but granted the motion for a new trial. The government appeals the grant of a new trial, and Eberhart cross-appeals the denial of the judgment of acquittal. For the reasons stated herein, we reverse the grant of a new trial, remand for sentencing, and dismiss the crossappeal for lack of jurisdiction.
Hottenroth, Carol v. Village of Slinger (ED Wis.)
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Carol Hottenroth sued her employer, the Village of Slinger, Wisconsin (Slinger), asserting various claims of discrimination in violation of Title VII of the Civil Rights Act of 1964. * * * Affirmed.
Advanced Ground v. RTW Indus Inc (SD Ind., Larry J. McKinney, Chief Judge)
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. When a work platform under construction for the Indianapolis Airport Authority (IAA) partially collapsed on May 13, 1999, the inevitable search for compensation began. * * *

The district court resolved the claims as follows: (1) it confirmed the arbitral award in favor of United and against Engineering; (2) it granted summary judgment for Engineering in its claim against RTW, finding that RTW owed Engineering a duty to defend and indemnify it; (3) it granted Engineerings motion for costs and attorneys fees; and (4) it granted Talwars motion for summary judgment, finding that he had no duty to indemnify or defend RTW. RTW now appeals. We affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, October 28, 2004
Posted to Indiana Decisions

Indiana Decisions - Latest stories on the District 46 dispute

There are a handful of new stories this morning, all centered upon the Sullivan County judge's ruling yesterday on the District 46 ballot dispute, a ruling in direct conflict with the Marion County judge's ruling last week. The Marion County judge's ruling was appealed to the Court of Appeals by the Democrats; the Court issued a ruling Monday. The Sullivan County judge's ruling has now been appealed to the Court of Appeals by the Republicans. (Links to both the Sullivan County and Court of Appeals rulings are available here; the Marion County ruling is linked to here.)

WTHI Action10News gives a brief recap of happenings to date here. The Louisville Courier-Journal (here), TheINDYChannel rtv6 (here), and another Courier-Journal story (here) all rehash the facts. A very brief Indianapolis Star entry is here.

When the Terre Haute paper posts its stories this morning (generally at 10 am) I'll post a link here.

[Update] Here is today's coverage from the Terre Haute Tribune-Star. Some quotes from the story:

[Sullivan County Judge Thomas] Johnson's decision conflicts with a Marion County Court order last week allowed Lee to be replaced on the ballot by incumbent Rep. Brooks LaPlante, a decision upheld Monday by the Indiana Court of Appeals.

The dueling rulings set up another hearing in the Indiana Court of Appeals.

Bill Groth, attorney for Indiana Democrats, hailed Johnson's decision as the correct one based on the evidence heard Tuesday in Vigo County. He said local election boards should comply with Johnson's decision because it was the proper venue to hear the case.

"It's our opinion that the judge in Marion County never had jurisdiction in the first place ... We pointed out [in our brief to the Indiana Court of Appeals] there was a risk of conflicting judgments. It appears that has become a reality," Groth said.

He contends that Lee's withdrawal has been orchestrated by Republicans because they knew he was going to lose, and will jump through any loophole to replace Lee on the ballot. Lee is the voter's choice for candidate, and should remain on the ballot.

Jim Bopp, attorney for Indiana Republicans, said he would ask the Indiana Court of Appeals to rule on Johnson's decision. He said he hoped to have that filed with the court late Wednesday.

Bopp said he doesn't understand how a judge can order parties to defy another court's order, one that at least some of the parties already have ignored.

"The Vigo County Election Board has since Thursday refused to comply with the Marion County Court order," Bopp said. "They have violated, in an outrageously contemptible manner, the Marion County order ... Waiting [for Johnson's decision] is not an excuse for failing to comply with a court order."

Posted by Marcia Oddi on Thursday, October 28, 2004
Posted to Indiana Decisions

Indiana Law - Dead people aren't voting in Indiana

The Indianapolis Star has a long story today titled "11,214 on rolls in 2 counties: Analysis finds voters who are registered in Marion, another county." Some quotes:

Lists of Indiana voters that will be used in next week's election include thousands of people registered in two counties and long-dead voters, according to an Indianapolis Star analysis.

In Marion County, at least 50 registered voters who died six years or more ago, and even Gov. Frank O'Bannon, who died just over a year ago, remain on the rolls, according to The Star's review of thousands of voter registration records.

The Star's database analysis also found that nearly 3,500 voters are registered in both Marion and Hamilton counties, and a nearly equal number are registered in both Marion and Johnson counties. In all, more than 11,000 voters are registered both in Marion and in one of the surrounding counties. * * *

In Indiana, thousands of errors may exist in voter databases for years, in large part because federal law makes it difficult to remove outdated registrations.

In the past, for instance, registration officials could remove a listing based on an obituary in the newspaper. The federal "motor voter" act, which became effective in 1995, required much more -- and in the view of some election officials, unnecessary -- proof in the form of official documents. * * *

The Star matched a list of deceased residents from a Social Security database to Marion County's voter list and found several dozen cases of people who had died and were still registered. However, the analysis could find no instances of votes cast using the name of a deceased person.

One section of the story that struck me as odd is this, which seems to forget that East Chicago is located in Indiana and has been the national poster-child for absentee voter fraud:
Other officials note that voter fraud cases are rare in Indiana. Recent cases around the country have tended to involve absentee ballots.

East Chicago, for example, replayed its 2003 mayoral primary this week because courts found widespread absentee ballot fraud. In Miami, the city's 1997 mayoral election results were overturned after absentee ballot fraud was discovered.

Posted by Marcia Oddi on Thursday, October 28, 2004
Posted to Indiana Law

Indiana Courts - Valpo attorney disciplined

"Court suspends lawyer for conduct: Valpo attorney can ask to resume law career after 180 days," reads the headline to this story today in the Munster Times. A quote:

CROWN POINT | The Indiana Supreme Court has suspended a prominent Valparaiso trial lawyer for at least six months for unprofessional conduct.

The high court punished Terry Boesch for abandoning a client, refusing to surrender documents to a former client, false advertising and other ethical violations.

Boesch has taught law abroad and practiced in Indiana since 1992. He has represented minorities, women and the disabled in civil rights and employment lawsuits.

He has until Dec. 1 to wind up his legal practice. He can petition the high court for permission to resume his law career after 180 days.

Posted by Marcia Oddi on Thursday, October 28, 2004
Posted to Indiana Courts

Wednesday, October 27, 2004

Law - More on Provisional Ballots

Adam Liptak of the NY Times writes today that "In trying to fix problems that arose in the 2000 presidential election, Congress may have created an impediment to a quick resolution in 2004 and set the stage for major election lawsuits."

The story includes this great graphic titled "How the states handle provisional ballots." Indiana is included as one of 27 states and D.C. where "provisional ballots must be cast in the voter's precinct to be counted."

More from the story:

The provisional ballots are at the top of many election lawyers' lists of potential problems for Nov. 2. The lists also include recounts, flaws in voting technology, absentee ballots, fraud, intimidation and terrorism.

The court battles about provisional ballots have largely focused on whether voters have to appear at the right polling place. After federal appeals court rulings on Saturday and Tuesday, the courts are for the time being unanimous in saying that local officials may enforce such a requirement. But that is only one issue.

"I guarantee you there will be litigation if there is a state that is critical to winning the Electoral College and the margin of victory in that state is less than the number of provisional ballots cast in that state," Professor Foley said. "The legal theories are available." * * *

After research, election officials will make one of several determinations. State officials may have purged voters from the rolls in error. Voters may be registered under a slightly different name. Voters may have failed to fill out their registration forms completely, by failing to check a box affirming they are citizens, for example. Election officials may not have signed the provisional ballot forms, as required in some states. Voters may have presented unacceptable identification when they registered or when they voted.

Some of these issues were created by the new federal law, which was meant to make voting more reliable.

New voters who registered by mail after Jan. 1, 2003, must present identification. They could have done so when they registered, by noting a driver's license number or partial Social Security number, which is checked against state records, or by submitting a copy of a paycheck, utility bill or similar document. If they failed to do that, they must show similar identification when they vote.

State officials may decide that the initial identification was inadequate, and then people may appear at the polls without identification.

The law also requires people voting provisionally to sign affirmations of eligibility "before an election official." Some states require those officials to sign as witnesses, but those signatures may be missing.

Getting to the bottom of all these questions requires work, and the answers will often be ambiguous. The counting could take time. Colorado, for instance, allows 12 days.

And if election officials in various counties in a state employ different standards in answering these questions, the problem quickly starts to look like the one confronted by the Supreme Court in 2000, when different Florida counties used different standards to discern voters' intentions.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to General Law Related

Indiana Decisions - Rulings in District 46 ballot dispute

I have just received two District 46 rulings.

First, here is the Court of Appeals order of Oct. 26, 2004, discussed in earlier posts, including this one and this one.

Second, here is today's ruling from Vigo Superior Court, Thomas E. Johnson, Special Judge, anticipated earlier today in this post.

Thanks to attorney William Groth for providing these documents.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to Indiana Decisions

Indiana Decisions - Court of Appeals posts five today

C.L.Y. v. State of Indiana (10/27/04 IndCtApp) [Juvenile Law]
Vaidik, Judge

C.L.Y. appeals his adjudication as a delinquent child for committing acts that would constitute Child Molesting as a Class C felony and Attempted Child Molesting as a Class B felony if committed by an adult. We find that it was not an abuse of discretion for the trial court to order C.L.Y. to remain in detention pending his fact-finding hearing and to deny C.L.Y.s motion for continuance. We affirm because even assuming that the photographic array from which the victim made an out-of-court identification is impermissibly suggestive, the evidence is nonetheless sufficient to sustain C.L.Y.s adjudication as a delinquent child. * * *
Affirmed. CRONE, J., concurs.

RILEY, J., concurs in part and dissents in part with separate opinion.
I concur in part and dissent in part. I concur with the majority opinion as to Issue I and Issue II. I respectfully dissent to Issue III. * * *

I would reverse the juvenile courts adjudication of C.L.Y. as a delinquent child.

J.Y. v. State of Indiana (10/27/04 IndCtApp) [Juvenile Law]
Najam, Judge
J.Y. appeals from his adjudication as a delinquent child for committing Attempted Child Molesting, as a Class B felony, and Child Molesting, as a Class C felony, when committed by an adult. He presents the following issues for our review: 1. Whether the juvenile court abused its discretion when it admitted into evidence testimony regarding the victims out-of-court identification of J.Y. 2. Whether the State presented sufficient evidence to support his adjudication as a delinquent child. We reverse. * * *
KIRSCH, C.J., and RILEY, J., concur.
Rueth Development Company, et al. v. Michael Muenich (10/27/04 IndCtApp) [Attorney Malpractice; Procedure]
Sharpnack, Judge
Rueth Development Company, Harold Rueth, and Helen Rueth (collectively, the Rueths) appeal the trial courts dismissal of their attorney malpractice complaint against Michael L. Muenich. The Rueths raise one issue, which we restate as whether the trial court abused its discretion by granting Muenichs motion to dismiss where the trial court had ordered the Rueths to file an amended complaint and the Rueths filed their amended complaint either one or three days late. We reverse and remand.

The relevant facts follow. On May 19, 2002, the Rueths filed a complaint against Muenich that alleged Muenich represented the [Rueths] in connection with an action brought by the United States on behalf of the United States Environmental Protection Agency and [a]s a result of [Muenichs] negligence during the course of said representation, the [Rueths] sustained damages in excess of $4 million dollars. Muenich filed a motion for a more definite statement under Ind. Trial Rule 12(E) and sought the dates on which the alleged acts of negligence occurred. The trial court granted the motion on March 3, 2003, and ordered the Rueths to amend their complaint within twenty days.

The Rueths counsel did not properly calendar the date on which the amended complaint was due. On March 26, 2003, the Rueths counsel realized the error, called Muenichs counsel, and left a voicemail message advising that the Rueths had not yet filed the amended complaint but would do so the next day and requesting Muenichs counsel to call if counsel for [Muenich] had a problem with that. On March 27, 2003, the Rueths filed an amended complaint, and on the same day, Muenich filed a motion to dismiss the Rueths complaint with prejudice under Ind. Trial Rule 12(E) because the Rueths had failed to file a timely amended complaint. Muenich later filed a motion to strike the Rueths amended complaint. After a hearing, the trial court granted Muenichs motion * * *

The Rueths acknowledge that their amended complaint was filed either one or three days late. The Rueths argue that even though their amended complaint was late, the trial court abused its discretion by dismissing their complaint because our courts disfavor dismissal for a technicality and [d]ismissal for a miniscule delay is the epitome of resolution on a technicality. * * *

Although our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means. * * *

The error here caused a minimal delay of three days. The missed deadline resulted from a calendaring error, not from an intentional violation of the trial courts order. Further, the missed filing deadline was not caused by the Rueths. Rather, the delay was caused by their attorneys calendaring error. The Rueths counsel was not stirred into action by a threat of dismissal. Rather, he caught his error, notified opposing counsel of the mistake, and filed the amended complaint the next day. Muenich has identified no prejudice caused by the delay. Additionally, there is no evidence that the Rueths had previously violated a trial rule or a trial courts order. Less drastic sanctions were available to the trial court, such as a verbal warning as suggested by the Rueths counsel at oral argument. Lastly, as noted above, we have a preference for deciding cases on their merits. * * *

For the foregoing reasons, we reverse the trial courts dismissal of the Rueths complaint and remand for proceedings consistent with this opinion. Reversed and remanded.
BAILEY, J. and MAY, J. concur

In Re: The Paternity of K.L.O., minor child, Toby L. Lakins v. Amy Feldman (10/27/04 IndCtApp) [Family Law]
Robb, Judge
Toby Lakins appeals the trial courts denial of his motion to dismiss a petition to establish paternity filed by Amy Feldman, which alleged that Lakins was the father of K.L.O. We reverse and remand. * * *

On August 1, 1992, Feldman, who was not married at the time, gave birth to K.L.O. Feldman and Jeffery Overholser, the man she was dating at the time of K.L.O.s birth, executed a paternity affidavit naming Overholser as the father. In late 2002, Feldman requested that another man, Toby Lakins, submit to a DNA test to determine if he was K.L.O.s biological father. Lakins agreed, and a subsequent DNA test revealed a probability of 99.99995% that Lakins was K.L.O.s biological father. * * *

Lakins first contends the trial court erred in denying his motion to dismiss because Feldman was barred by the statute of limitations from pursuing a paternity action against Lakins. We disagree.

Under [IC] 31-14-5-3, a mother may not file a paternity petition later than two years after the child is born. However, under Indiana Code section 31-14-5-2(b), a child may pursue a paternity action at any time before the child reaches twenty years of age. A child who is incompetent due to age may file a paternity petition through the childs guardian, guardian ad litem, or next friend. Ind. Code 31-14-5-2(a). In the instant case, Feldman filed this paternity action on behalf of K.L.O. as her next friend. Because K.L.O. was only ten years old at the time of the filing of the paternity action, Feldman was not barred by the statute of limitations from filing a paternity petition on K.L.O.s behalf as her next friend. [cites omitted]

Lakins next contends the trial court erred in denying his motion to dismiss under Indiana Trial Rule 12(B)(7) because Overholser was not joined as a necessary party. We agree. * * * The trial court did not, however, find that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit by Overholser. Furthermore, the trial court did not rescind or set aside the paternity affidavit that was executed by Overholser. Thus, Overholser remains the legal father of K.L.O., and, as such, he should have been joined as a necessary party in the instant case. For this reason, the trial court erred in denying Lakinss motion to dismiss the paternity action filed against Lakins because Feldman did not join Overholser, a necessary party, to the action.

Conclusion. We hold Feldman was not barred by the statute of limitations from pursuing a paternity action on behalf of K.L.O. as her next friend. Nevertheless, the trial court erred in denying Lakinss motion to dismiss because Overholser was not joined as a necessary party to this cause. Therefore, we reverse the trial courts decision and remand this cause to the trial court for further proceedings consistent with this opinion. Reversed and remanded.
KIRSCH, C.J., and BAKER, J., concur.

Northern Indiana Public Service Company v. John S. Bloom, as Personal Representative of the Estate of Fred J. Zurbrick, deceased (10/27/04 IndCtApp) [Torts; Agency; Insurance]
Robb, Judge
Northern Indiana Public Service Company (NIPSCO) employee Fred Zurbrick was killed in an automobile accident with Charmaine Minniefield while driving a NIPSCO vehicle home from work. Minniefield filed suit against NIPSCO and Zurbricks estate (the Estate) for injuries to herself and her passengers as well as property damage. NIPSCO filed dispositive motions arguing that it was not responsible for Zurbricks actions because he was a commuter rather than an employee in the course of his employment. The trial court found that a genuine issue of material fact existed as to whether Zurbrick was a commuter at the time of the accident, but that NIPSCO was liable regardless of the outcome of that issue. The trial court found that NIPSCO was to pay for the Estates legal defense and to act as the Estates insurance carrier for up to one million dollars. NIPSCO now appeals. We affirm in part and reverse in part.

Issues. NIPSCO raises three issues which we consolidate and restate as: [1] Whether the trial court properly found that NIPSCO was obligated to pay for the Estates legal defense and to act as the Estates insurance carrier; and [2] Whether the trial court properly found that NIPSCO was to indemnify the Estate for up to one million dollars. * * *

Conclusion. The question of whether Zurbrick was an employee in the course of his employment or a commuter remains to be decided by a trier of fact. Regardless of the outcome of that question, the trial court properly found that NIPSCO was required to defend and indemnify the Estate. However, the trial court erred in capping NIPSCOs liability at one million dollars. Therefore, we affirm the trial courts decision as to liability, but reverse as to the limit of liability. Affirmed in part and reversed in part.
DARDEN, J., concurs.

SHARPNACK, J., concurs in part and dissents in part with opinion.
I concur in part and respectfully dissent in part. I concur that NIPSCOs obligation to respond in damages to the Minniefields as self-insurer of the vehicle driven by Zurbrick for Zurbricks liability would not be limited to Fifty Thousand Dollars or One Million Dollars for bodily injuries to the Minniefields. It would be limited only by the extent of the Minniefields damages.

I dissent from the conclusion that NIPSCO is obligated to defend Zurbricks Estate against the Minniefields claims, although it strikes me that it would be in NIPSCOs interest to do so. * * *

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to Indiana Decisions

Law - Background on provisional ballots and other issues

The Christian Science Monitor today has a good overview article on provisional ballots, titled "Behind the looming ballot clash." A quote:

At the center of the controversy is part of the law mandating that states permit voters to cast provisional ballots if their eligibility is challenged by election officials. A provisional ballot will be counted as valid if an investigation reveals the voter is qualified.

An estimated 1.5 million to 3 million would-be voters were turned away from the polls in similar challenges during the 2000 election. Congress created provisional voting as a mechanism to capture those lost votes.

But definitions in the federal law are vague, and voter eligibility ultimately turns on an interpretation of state law that may differ from judge to judge. Analysts say that is a recipe for bare-knuckled legal tactics that could swing the election one way or the other in a close race.

"The whole idea of provisional ballots is one that is going to potentially cause protracted litigation after the election," says Nathaniel Persily, an election-law expert at the University of Pennsylvania Law School in Philadelphia. He estimates up to 1 million provisional ballots will be cast.

Equally valuable is a collection put together by Findlaw of election lawsuits, with sections on "Ballot Issues Arising in Battleground States," "Electronic Voting Machine Controversies," etc., with links to the orders and opinions.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to General Law Related

Indiana Decisions - 7th Circuit posts five today

Baker, James A. v. Kingsley, Alfred D. (ND Ill.)

Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
FLAUM, Chief Judge. Plaintiffs-appellants, individually and on behalf of all others similarly situated, initiated this suit in Illinois state court alleging that defendants-appellees violated the Illinois Wage Payment and Collection Act (Illinois Wage Act). * * * III. Conclusion. For the foregoing reasons, we REVERSE the district courts dismissal of plaintiffs ERISA claim only insofar as it is based on a fiduciary duty to fund the plan, REVERSE the district courts remand of the Illinois Wage Act claim, and REMAND for further proceedings consistent with this opinion.
USA v. Daniels, Gregory R. (ED Wis.)
Before FLAUM, Chief Judge, and POSNER and ROVNER Circuit Judges.
FLAUM, Chief Judge. Defendant-appellant Gregory Daniels is a chiropractor who operated his own practice, Daniels Chiropractic. His wife, co-defendant-appellant Susan Daniels, served as the clinics manager. Together they were charged with two counts of income tax evasion in violation of 26 U.S.C. 7201. Following a jury trial, defendants were convicted on both counts. They now appeal their convictions and sentences. For the reasons stated herein, we affirm.
Fain, Carolyn S. v. Wayne County Auditor (SD Ind., Larry J. McKinney, Chief Judge)
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Carolyn Fain worked at the Wayne County Auditors Office from 1990 until June, 1999. She did not work for most of the time period from January 1, 1999, through June 18, 1999, using personal leave, vacation, sick leave, and FMLA-qualified leave. On June 18, 1999, her position was terminated, and the circumstances surrounding that termination form the basis for this cause of action. Fain asserts that her termination violated the Family and Medical Leave Act of 1993 (FMLA) as well as the Americans with Disabilities Act of 1990 (ADA). The district court, however, granted summary judgment to the Auditors Office, holding that the Auditors Office did not qualify as an employer under the ADA and that Fain was not an eligible employee under the FMLA. For both statutes, the courts decision was based upon the number of persons employed by the Auditors Office. The undisputed evidence was that the Auditors Office never employed more than 12 employees at one time. The ADAs protections, however, apply only to employers with 15 or more employees, 42 U.S.C. 12111(5), and the FMLA, as we will discuss shortly, essentially requires 50 employees in a given geographic area in order for an employee to seek its protections, 29 U.S.C. 2611(2)(B). The district court viewed the Auditors Office in isolation, rather than as a part of the Wayne County government as a whole. That decision ordained the result. * * *

[H]ere there is nothing in either state law or the facts that would establish that the Auditors Office is a separate public agency rather than a part of the County.
Because state law does not definitively resolve the issue, even under the defendants interpretation of the regulation we must turn to the Census. All parties agree that the Census supports Fains position, and therefore the district court improperly granted summary judgment to the defendant on the FMLA issue.

The decision of the district court granting summary judgment to the defendant on the FMLA claim is REVERSED, and the case REMANDED for further proceedings consistent with this opinion.

USA v. Dowell, Milton (ND Ill.)
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Milton Dowell was convicted by a jury of two counts of attempted possession with intent to distribute cocaine. The district court sentenced him to 360 months imprisonment under the United States Sentencing Guidelines. Dowell requested a downward departure because of extraordinary physical impairment. The court denied the motion and Dowell appeals. * * *

Dowell has presented no evidence to show that he is a viable candidate for a heart transplant or that he is being denied the opportunity to receive a new heart by prison officials. Nor has Dowell shown that there has been a deliberate indifference to his medical needs. In fact, he has been and will be receiving care from a federal medical center. Therefore, Dowells Eighth Amendment claim is without merit.

III. Conclusion. Dowells sentence is not reviewable by this court because the refusal to depart downward was a matter of the district courts discretion. Dowells constitutional arguments are not valid. We therefore DISMISS this claim for lack of jurisdiction and the sentence imposed by the district court stands.

USA v. Fuller, Charles (SD Ind., Larry J. McKinney, Chief Judge)
Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
KANNE, Circuit Judge. Charles E. Fuller pled guilty to one count of threatening to kill President George W. Bush in violation of 18 U.S.C. 871. He now appeals his conviction on grounds preserved in the plea agreement. For the reasons stated herein, we affirm. * * *

Conclusion. Even if Fuller threatened President Bush because he suffered from institutionalization and desired to stay in prison (which very well could be true), his letter constituted no less a violation of 871. We adhere to the objective, reasonable person standard for 871 and AFFIRM the conviction.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to Indiana Decisions

Indiana Decisions - Star story wrong in District 46 report, according to Dem attorney

I have just received an email from William Groth, attorney for the Indiana Democratic Party. He reports:

The Indianapolis Star's article that you reference in your blog of today is incorrect. The court of appeals denied in part my clients' motion to stay, but it cannot be inferred by that ruling that the court "agreed" that Laplante should be on the ballot, not does it necessarily mean, as The Star reports, that the court "agreed" with Judge Miller in the Marion County action that Lee had moved out of the district in time. In fact, Miller had no evidence before him as to Lee's purported move, and the court's ruling on the stay cannot be read to imply any "agreement" with any of Miller's rulings or an implied finding that Judge Miller even possessed jurisdiction to make such a ruling, given the pendency of the earlier-filed Vigo action.

A more plausible explanation is that the appellate court simply decided that there was insufficient time remaining between now and election day to do justice to, and render a final ruling on, the merits of the issues presented on appeal, including the jurisdictional issue, and that the ruling yesterday simply represents a pragmatic decision to wait until after the election to decide those issues, which might by then have become moot.

However, the appellate court's reticence to become involved in this matter before election day may be put to the test once again if Special Judge Johnson, who heard evidence yesterday in Vigo Superior Court that raised additional questions as to whether Lee was domiciled outside of the district even as of the filing date of his second withdrawal, were to agree with the plaintiffs and issue a preliminary injunction later today that Lee's second withdrawal also failed to create a ballot vacancy, thus setting up a potential conflict between the Marion and Vigo Superior Courts regarding the issue of who is the Republican Party's candidate and which one is to be listed on election day ballots. Stay tuned.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to Indiana Decisions

Indiana Decisions - The latest on District 46 ballot dispute

The Terre Haute Tribune Star is reporting, in a story just posted:

The legal wrangling over the Republican nomination in Indiana's House District 46 continued Tuesday with a higher court ruling on one appeal and a lower court hearing over the validity of the previous candidate's withdrawal.

The Indiana Court of Appeals on Tuesday upheld a Marion County Court ruling that put incumbent Rep. Brooks LaPlante on the ballot. But it stayed the lower court's ruling that would have forced local election boards to notify voters who already have sent absentee votes that they will need to submit a replacement ballot if they want their vote in the District 46 race to count.

That stay is pending further ruling from the Court of Appeals.

Votes in other races on those ballots will be counted whether a replacement is submitted or not. The Court of Appeals also left the cost for any additional ballots with the four counties involved: Clay, Monroe, Owen and Vigo.

Meanwhile ActionNews10 is reporting:
It all started when Republican candidate Jeff Lee moved out of the district and dropped out of the race.

A Marion County judge ruled current incumbent Brooks LaPlante should be placed on ballots in Vigo, Clay, Owen, and Monroe counties. He also ruled all absentee votes in that race would not count.

But now, a special judge brought in from Sullivan County says he has just as much authority as the Marion County judge. If the Sullivan County judge rules Lee should stay on the ballot, the case could go to the Indiana Supreme Court.

More on this in today's Trib-Star story:
In Terre Haute on Tuesday, Sullivan County Judge Thomas Johnson listened to testimony from Lee, and asked for written briefs from both side to be presented no later than noon today. Johnson's ruling on the case could come as early as today.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to Indiana Decisions

Indiana Decisions - Pabey wins court-ordered primary in East Chicago

As reported in a Gary Post Tribune story quoted in this August 25th IBL entry:

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

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

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

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

Well, yesterday was the special East Chicago primary, and as reported here today in the Munster Times, "Pabey wins in historic do-over election."

But apparently it was not pretty. As the Gary Post-Tribune reports here:

After a year of court fights and a unprecedented level of scrutiny, the East Chicago election would not go quietly.

Marred by a nearly four-hour-late start at the 151st Street Recreation Center that kept the polls open until 8 and 9:30 p.m. at Precinct 14, election monitors prayed for a blowout to put aside any allegations of fraud and tampering.

They appear to have gotten one. * * * In the end, the vote margin was out of reach of any of the schemes and chicanery which marred past elections.

Less than an hour after the totals began flowing out of the central counting office in Crown Point, Pastrick stood up before the crowd at Riley Park and conceded defeat.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to Indiana Decisions

Indiana Decision - ILB has another District 46 scoop

Apparently the Indiana Law Blog had another scoop yesterday in the District 46 ballot dispute (scroll down 4) when we reported the Court of Appeal's action in the appeal. As this brief story today (headlined "Court accepts GOP choice for House District 46 race") in the Indianapolis Star reports:

The Indiana Court of Appeals ruled Tuesday that incumbent R. Brooks LaPlante should be the Republican on the ballot in House District 46, which includes Terre Haute.

In its unanimous ruling, the appeals court agreed with a Marion County judge that Jeff Lee -- who won the May primary -- has moved out of the district. That creates a ballot vacancy, which Republicans have filled with LaPlante. Plagued by campaign finance problems, he had decided earlier this year not to seek re-election.

The appeals court said it would rule later on how to deal with absentee ballots. The court clarified that only votes already cast for the District 46 race would be affected -- absentee votes cast in other races, such as for governor, will be counted.

Two other papers today have District 46 stories, but do not include the latest court action. "Counties caught in the middle of Indiana House District 46 ballot battle" is the headline to this Louisville Courier-Journal story; "Legislative intrigue" is the headline to this story today in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Wednesday, October 27, 2004
Posted to Indiana Decisions

Tuesday, October 26, 2004

Law - More on Issues Raised by Rehnquist Illness

Lyle Denniston posted a useful Q & A on the issues raised by Chief Justice Rehnquist's illness here on SCOTUSblog.com.

Posted by Marcia Oddi on Tuesday, October 26, 2004
Posted to General Law Related

Indiana Decisions - Three today from Court of Appeals

Joshua Cowens v. State of Indiana (10/6/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge

Joshua Cowens has filed a petition for rehearing alleging that the imposition of consecutive sentences in this case was in violation of the holding in Blakely v. Washington, 124 S.Ct. 2531 (2004). Concluding that Blakely is not implicated in the situation where a trial court orders consecutive sentences based upon its discretion as granted by [IC] 35-50-1-2(c), we decline to extend the holding of Blakely to consecutive sentences.
Judgment affirmed.
MAY, J., and VAIDIK, J., concur.
Note: The initial opinion was issued 6/21/04 according to the docket. The docket does not indicate the opinion was NFP, but I do not find it online. The opinion on rehearing (above) was issued 10/06/04, but was listed as NFP. On 10/25/04, according to the docket, pursuant to the appellee's motion for publication, the court's decision on rehearing was ordered published, and hence it was also posted online.

Jack's Wholesale Windows v. Review Board (10/26/04 IndCtApp) [Administrative Law]
Friedlander, Judge

Wholesale Windows and Design of Hammond, Inc. (Jacks) appeals a decision of the Unemployment Insurance Review Board, Indiana Department of Workforce Development (the Review Board), affirming an administrative law judges (ALJs) decision to grant unemployment benefits to Karen M. Bulmer-Marsh. Jacks presents several issues, but we address only the following issue, which is dispositive of the appeal: Did the review board err in refusing to allow Jacks to introduce evidence in the hearing before the ALJ to rebut a claim not raised until after the hearing deputys decision with respect to a reason Bulmer-Marsh quit her job? We reverse and remand. * * *

Bulmer-Marshs factual assertions on the claimed second reason for quitting have not been put to the test. We therefore must remand with instructions to the Review Board to conduct a fact-finding hearing to that end. Judgment reversed and remanded.
BAKER, J., and DARDEN, J., concur.

Henry Brewer v. State of Indiana (10/26/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
Appellant-Defendant, Henry Brewer (Brewer), appeals the revocation of his probation for his conviction of dealing in cocaine, a Class B felony, Ind. Code 35-48-4-1. * * *

Based on the foregoing, we find that although the trial court properly followed the probation revocation hearing procedures for admitting evidence, the trial court denied Brewers due process right to present witnesses. Therefore, we conclude that the trial court abused its discretion by not properly revoking Brewers probation. Affirmed in part, reversed in part, and remanded.
CRONE, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Tuesday, October 26, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts 3 today

Manny, Terry L. v. Central States Fund (ND Ill.)

ERISA

Ahmed, Nuradin v. Ashcroft, John (Petition to Review an Order of the Board of Immigration Appeals)

Immigration

Smith, Dollie v. Barnhart, Jo Anne B. (ED Wis.)

Social Security

Posted by Marcia Oddi on Tuesday, October 26, 2004
Posted to Indiana Decisions

Indiana Decisions - Even more on District 46 ballot dispute

As I posted yesterday (three entries down):

The Court of Appeals was scheduled to hear arguments on Marion County Judge Gary L. Miller's ruling in the House District 46 ballot dispute at noon today [Monday]. If/when I obtain further information on the argument, I will post it here.
I have just received an email authored by attorney James Bopp, Jr., representing the Republicans/LaPlante in the case, stating that the Court of Appeals denied the requested stay, except for:
paragraph 3, which required the county election boards to send out replacement ballots. This is the paragraph which was misconstrued to void all previously cast absentee ballots, which the judge had clarified as only applying to votes cast in the House District 46 race. The court of appeals also vacated their expedited briefing schedule.
Here is a link to Judge Miller's 13-page ruling, originally referenced in this Oct. 22nd entry. Here again is the conclusion to that order (including para. 3):
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1. Defendant Robertson is hereby mandated and ordered to immediately certify R. Brooks LaPlante as the Republican House District 46 candidate to the Clay, Monroe, Owen, and Vigo County Election Boards without any qualification.

2. The Defendant County Election Boards are hereby mandated to immediately remove Jeff Lees name from the ballot, to place R. Brooks LaPlante on the ballot as the Republican candidate for House District 46, to henceforth provide ballots to voters with R. Brooks LaPlante on the ballot as the Republican candidate for House District 46

3. In addition, the Defendant County Election Boards are hereby mandated to immediately send notice and replacement ballots to all absentee voters who have been provided absentee ballots advising them that their previously completed ballots are void and will not be counted.

4. Defendants to pay costs pursuant to Indiana Code 3-27-1-4.

All of which is ORDERED, ADJUDGED, and DECREED on this the 21st of October 2004.

To access earlier entries, type "LaPlante" (no quotes) in the search box in the right column. Check back here later for any additional information I may obtain today.

[More, both published before the Court of Appeals ruling] Here is an opinion piece dated today in the Decatur Daily Democrat, headlined "New lows for Rep. LaPlante, Hoosier House GOP." A quote:

Legislative and Republican Party leaders would best serve all Hoosier voters if they acted in ways that reinforced the integrity of this voting process. Instead, they've engaged in a power play that flies in the face of voters who cast ballots in a process they thought could be relied on.
And here is a report from the Indychannel.com, RTV6, dated yesterday.

Posted by Marcia Oddi on Tuesday, October 26, 2004
Posted to Indiana Decisions

Law - Many stories today relate to Chief Justice Rehnquist's illness

For instance, here are some quotes from a story today by David G. Savage of the LA Times:

It has been a decade since a justice stepped down the longest period of stability since the early 1800s and now eight of the nine justices have passed the traditional retirement age of 65.

Some, including Rehnquist, are getting old even by the standards of the Supreme Court. Justice John Paul Stevens, the senior liberal, who has survived prostate cancer, will be 85 in the spring.

The prospect that one or more justices will step down in the next four years fires up and also frightens conservative and liberal activists.

Links to a number of the stories are collected here by Howard Bashman of How Appealing.

Posted by Marcia Oddi on Tuesday, October 26, 2004
Posted to General Law Related

Law - New York Police Expand DNA Testing

"New York Police Expand DNA Testing" is the headline to this story today in the NY Times. Some quotes:

The investigation was among 250 cases, mostly burglaries in Queens, that were part of a trial expansion of DNA testing to crimes other than rape and homicide. Since it was started in January, the program, called Biotracks, has identified 23 suspects tied to 34 cases, most of which the police say would not otherwise have been solved.

In that small pool of results, the police see enormous potential to combat the city's most vexing crimes, the ones that leave victims feeling frustrated and vulnerable and the investigators searching, usually in vain, for witnesses or fingerprints. In 2002, the most recent year for which statistics are available, the Police Department made arrests in just 15 percent of the city's burglaries.

The department hopes to expand DNA testing to burglaries, robberies and car thefts in all five boroughs, a goal that city officials say will be greatly advanced when the medical examiner's office opens a new $267 million DNA lab in 2006. "We're just beginning to learn how effective this is," Police Commissioner Raymond W. Kelly said. "We've had it in rape cases and homicide cases. Now you see the kind of natural expansion and progression of the program."

As little as 10 years ago, testing samples from thousands of crime scenes would have been unthinkably expensive. Yet DNA has long held out the promise of revolutionizing the way not just rapes and homicides but virtually all types of crimes are solved. A handful of cities and states have begun to test that promise, using technology that can glean DNA from ever smaller samples of biological material. In New York, Mr. Medina is among the first group ofsuspects identified by DNA in a nonviolent crime.

Trying to find DNA at every burglary scene is not extravagant, Commissioner Kelly said, because evidence shows that many burglars are "crossover" criminals who commit violent crimes like rape. They are also more likely than other criminals to strike repeatedly.

Posted by Marcia Oddi on Tuesday, October 26, 2004
Posted to General Law Related

Indiana Law - Electronic voting in Indiana

"Indiana will use four types of voting systems on Election Day -- including the punch cards that were so vilified in the 2000 presidential recount in Florida" according to a brief story today in the Indianapolis Star. According to the Star report:

  • Seventeen of Indiana's 92 counties will be using the punch-card ballots.

  • One county, Greene, will use the lever machines that Marion County ditched recently in favor of optical scan ballots.

  • [Optical scan ballots] are the paper ballots in which voters fill in circles next to their choices, and which then are scanned and tabulated by a computer. Thirty-one counties will use those.

  • Nearly half of Indiana's voters -- 49 percent -- will use the touch-screen voting system, called Direct Record Electronic. Most of the 43 counties using that system are using machines designed by MicroVote General Corp., based in Indianapolis. Only one county, Tippecanoe, uses the electronic voting system manufactured by Ohio-based Diebold Inc.
  • Posted by Marcia Oddi on Tuesday, October 26, 2004
    Posted to Indiana Law

    Monday, October 25, 2004

    Indiana Decisions - Two today from the Court of Appeals

    Principle Life Insurance Co. v. Dwight Needler (10/25/04 IndCtApp) [Insurance]
    Barnes, Judge

    Case Summary. Principal Life Insurance Company (Principal) appeals the denial of its motion to correct error, which sought to set aside the trial courts grant of plaintiff Dwight Needlers motion to dismiss his motion to adjudicate a lien held by Principal. We affirm.

    Issue. The sole restated issue is whether the trial court abused its discretion in granting Needlers motion to voluntarily dismiss pursuant to Indiana Trial Rule 41(A)(2) and in denying Principals motion to correct error. * * *

    Conclusion, Principal has failed to demonstrate the trial court abused its discretion in permitting Needler to dismiss his motion to adjudicate lien and in refusing to reconsider that decision. We affirm the denial of the motion to correct error. Affirmed.
    NAJAM, J., and SULLIVAN, J., concur.

    Monroe Guaranty Insurance Co. v. Angela Langreck, et al (10/25/04 IndCtApp) [Insurance]
    Barnes, Judge
    Monroe Guaranty Insurance Company (Monroe) appeals the trial courts entry of summary judgment against it and in favor of Indiana University, the Indiana University Rowing Club (IURC), and several individual defendants in Monroes declaratory judgment action regarding insurance coverage for an automobile accident involving several IU students. We affirm. * * *

    Monroe failed to raise a genuine issue of material fact to support its claim that mutual mistake on the part of it and IU warrants retroactive reformation of the Monroe policy so as to exclude Langrecks accident while driving an IU-owned vehicle from coverage under the non-owned and hired automobile endorsement. With respect to coverage priority between Monroe and TIG, a pure question of law, Monroes overall primary policy remains primary and TIGs true excess or umbrella policy is secondary, in accordance with black-letter law adopted in numerous jurisdictions and notwithstanding the Indiana Owners Statute. We affirm the trial courts entry of summary judgment against Monroe. Affirmed.
    KIRSCH, C.J., and SULLIVAN, J., concur

    Posted by Marcia Oddi on Monday, October 25, 2004
    Posted to Indiana Decisions

    Law - Voting issues nationwide

    "Electronic Voting Raises New Issues: Security, Recount Questions Persist As States Adopt Paperless Balloting" is the headline to this story today in the Washington Post that begins:

    Electronic voting systems that were touted as the solution to the paper ballots and hanging chads of the 2000 presidential election have become a new source of controversy as experts debate the reliability of software that operates the new systems, whether local election officials have the technical competence to run them and how there can be a recount on machines that keep no paper record of votes cast on them.
    Yesterday the New York Times published an editorial about voting issues titled "What Congress Should Do." Some quotes:
    In Florida, voter registrations are being thrown out on pointless technicalities. Missouri is telling soldiers to send nonsecret ballots by e-mail through a Pentagon contractor with a troubling past. Nationwide, eligible voters are being removed from the rolls by flawed felon purges. And nearly a third of this year's votes will be cast on highly questionable electronic voting machines. No wonder a large percentage of Americans doubt that their votes will count. The election system is crying out for reform. * * *

    Congress has been reluctant to intrude on the states by adopting uniform national standards. But these are federal elections, for a president of the United States, senators and representatives. Uniform national rules should apply, and the states have failed miserably. Politically partisan secretaries of state and state legislatures have routinely adopted voting rules that appear to be intended to favor their own parties, not the voting public.

    The lack of clear guidelines has turned this election season into a legal free-for-all, in which courts have produced a patchwork of rulings. A federal court in Michigan ordered officials to count provisional ballots that are cast in the wrong polling places. A Florida court is allowing Florida to throw out such ballots. A federal judge in Missouri has taken a confusing middle position. On overseas and military voting, the Pentagon has been winging it, and doing a poor job,

    The Times goes on to discuss electronic voting and then to list 7 points "a new, comprehensive election reform law" should include.

    The Times has collected together its editorials "examining the flaws in the mechanics of our democracy, including the reliability of electronic voting machines, obstacles to voter registration and turnout, and the lack of competitive congressional elections due to partisan drawing of district lines." Access it here.

    Posted by Marcia Oddi on Monday, October 25, 2004
    Posted to General Law Related

    Indiana Decisions - Even more on District 46 ballot dispute

    As mentioned two entries down, the Court of Appeals was scheduled to hear arguments on Marion County Judge Gary L. Miller's ruling in the House District 46 ballot dispute at noon today. If/when I obtain further information on the argument, I will post it here.

    Meanwhile, the Terre Haute Tribune-Star has posted a long story on its website today, dated Oct. 24, and headlined "Indiana House District 46's court action produces high drama for upcoming election." Some quotes:

    With only a handful of the races seriously contested this year, House District 46 is crucial to the composition of the House. Whoever has won in the past decade hasn't won by a wide margin. LaPlante won in 2002 by 800 votes out of more than 15,000 cast. Tincher beat Lohr in 1996 by mere double digits.

    Democrats hold a 51-49 majority in that legislative chamber. Of the 100 seats, 32 are held by unopposed incumbents. Most observers agree that the results of fewer than a dozen races are in doubt.

    Indiana House District 46 is one of the few, but it differs from the majority in another aspect, one that takes it beyond small town politics: Much of the action in the past month has taken place in court.

    Lee's withdrawal, announced in mid-September, past the July 15 deadline for voluntary withdrawal, has led to a series of court hearings in Vigo and Marion counties. More court action is expected this week before the Indiana Court of Appeals.

    Posted by Marcia Oddi on Monday, October 25, 2004
    Posted to Indiana Decisions

    Sunday, October 24, 2004

    Environment - Construction runoff the focus of several Courier-Journal stories today

    "MSD slow to stop construction runoff muddying waterways: Agency defends methods, and results," is the headline to the lead story in the Local/Regional Section of the Louisville Courier-Journal today. The MDS is the Louisville Metropolitan Sewer District. Some quotes:

    Jim Bartley says lax enforcement by local regulators has contributed to turning his swimming and fishing pond in eastern Jefferson County into a muddy mess.

    The problem, Bartley said, is runoff from nearby construction compounded by what he describes as poor enforcement of a 2001 ordinance meant to deal with Kentucky's most widespread water-pollution problem: sediment washing into waterways.

    "They are not doing what they need to do," Bartley said of Metropolitan Sewer District officials. "This has really been a nightmare."

    A Courier-Journal review of MSD enforcement records and internal e-mail messages obtained under Kentucky's open-records law confirms that the agency often takes longer to act on enforcement cases than called for under the law and it has been reluctant to issue fines.

    But developers and MSD officials say that may not be bad. MSD's executive director, Bud Schardein, who acknowledges having slowed inspectors at the construction site near Bartley's pond, said he views all developers, even those allegedly causing sediment-laden runoff, as among MSD's customers.

    He said he tries to work with those customers to prevent pollution without creating new expenses, and he believes in issuing fines only when violators are not moving toward compliance. He instead uses temporary stop-work orders to rein in polluters, he said.

    Accompanying the article is a graphic illustrating the environmental impact of soil runoff, and several other stories.

    Posted by Marcia Oddi on Sunday, October 24, 2004
    Posted to Environmental Issues

    Indiana Decisions - More on District 46 ballot dispute

    As reported in this ILB entry Friday, an emergency petition to overturn Marion County Judge Gary L. Miller in the House District 46 ballot dispute was filed with the Supreme Court. Today the Munster Times reports:

    INDIANAPOLIS (AP) -- A judge's order to put Republican Rep. Brooks LaPlante's name on the ballot for House District 46 in time for the Nov. 2 election will stand pending a review by an appellate court, the Indiana Supreme Court has ruled.

    The Supreme Court on Friday denied an appeal from attorneys for the Indiana Democratic Party to overturn Marion County Judge Gary L. Miller's ruling.

    The high court unanimously ruled that Miller's judgment issued Thursday gives Democrat Kristi Robertson, co-director of the Indiana Election Division, and the Indiana State Democrat Central Committee, "an immediate right to appeal," making the action before the Supreme Court unnecessary.

    Attorneys for the Democratic Party had asked the high court to rule immediately on their appeal. Now a petition to appeal the ruling will follow the normal course of action and will go before the Indiana Court of Appeals at noon Monday.

    In a related matter (see this ILB entry on Friday titled "Clarification of Judge Miller's ruling proposed"), an email message today written by James Bopp, Jr. (attorney for the Republicans who filed the motion for clarification) reports:
    Scope of Order/Stay. Per our request, Judge Miller has advised us that the original order regarding previously cast absentee ballots is only applicable to votes cast in the House District 46 race and all votes cast in other races on previously cast absentee ballots will count. Someone who wishes to vote in the House District 46 race between Tincher and LaPlante need to recast their ballot. In addition, he will not stay his order.

    Posted by Marcia Oddi on Sunday, October 24, 2004
    Posted to Indiana Decisions

    Saturday, October 23, 2004

    Law - Running for Judge in Illinois

    Indiana's high court judicial offices have not been elective since the Judicial Article of the Indiana Constitution was revised in 1970. In many other states, however, the justices are elected. Illinois is one. The Chicago Tribune reports today:

    Hoping to influence how courts deal with the controversial issue of medical malpractice, heavyweight special interest groups are pouring so much money into the race for the southern Illinois seat on the state Supreme Court that it has become the most expensive in Illinois court history.

    The high court now has five Democrats and two Republicans, so even if Republican Lloyd Karmeier defeats Democrat Gordon Maag this fall, the partisan power will not change hands.

    But the race between the two judges has become a significant battle in the national fight over the state of the modern courts. This jurisdiction has drawn national attention from business interests because of the many class-action and asbestos lawsuits filed here in search of its famously friendly judges and jury pools.

    Making the race especially relevant to local voters is the concern that physicians are fleeing the area because outsize medical malpractice judgments are driving up their insurance premiums.

    Two southern Illinois hospitals have closed their obstetrical units this year because of the high cost of insuring staff obstetricians. Neurosurgeons have left, leaving the bottom third of the state with none. * * *

    Business groups and doctors believe a Republican--any Republican--will do a better job of handling those matters, because the GOP in general is more supportive of measures like caps on non-economic damages in civil awards.

    But Democrats say they are concerned about the problem too. And though they have opposed an outright cap on damages, top Democrats in the state legislature have led the discussions on solving the medical malpractice crisis in recent months. In those discussions, trial lawyers, a traditional Democratic constituency, have deadlocked with businesses, insurance companies, hospitals and doctors, which are traditionally Republican.

    In this Supreme Court race, it's impossible to find out exactly what the candidates themselves believe, because of rules and norms that prevent judges from weighing in on any cause that might come before them.

    So advocates are telling the story for them.

    A story Thursday in the St. Louis Post-Dispatch reported:
    The Illinois State Bar Association on Thursday asked Judges Gordon Maag and Lloyd Karmeier, opponents in a bitter campaign for the state's Supreme Court, to pull ads it says distort the candidates' records and chip away at the public's trust in the judicial system. * * *

    The campaign has attracted national attention because a new justice on the court could sway an upcoming appeal by Philip Morris of a multibillion-dollar verdict against the company and because the two candidates represent opposing sides in a raging debate over tort reform.

    A comprehensive story from the National Law Journal reports:
    On the eve of the 2004 judicial elections, special interest groups are flexing big muscles in state Supreme Court races, using both familiar and new tactics.

    Remember the rancor and big bucks of the 2000 and 2002 judicial elections? They're back, and then some.

    In several of the 15 states where 29 state Supreme Court judgeships are up for grabs on Nov. 2, key interest groups are arrayed against each other. Business, medical groups and Republicans are on one side; trial lawyers, unions and Democrats are on the other.

    Among the judicial-election battleground states, Illinois and West Virginia offer the two most closely watched races for record-setting money and saturation advertising. In one race for Illinois Supreme Court, more than $5 million has been raised, smashing state and national records for a single state Supreme Court election. * * *

    To those pots of money and political fervor, add the explosive impact of the landmark 2002 U.S. Supreme Court decision Republican Party of Minnesota v. White, 536 U.S. 765, which says judicial candidates can't be barred from announcing their views on issues.

    Citing White, interest groups have been pressing candidates to answer questionnaires that seek to pin down would-be judges on controversial issues, ranging from abortion to taxes. Some candidates are answering, but many are declining, claiming state judicial rules still restrict them from taking positions.

    See this October 20th ILB entry for background on this. The National Law Journal article continues with a very interesting discussion of the impact of White on the various states' judicial campaign rules.

    Posted by Marcia Oddi on Saturday, October 23, 2004
    Posted to General Law Related

    Environment - More EPA CWA violations at dairy farms reported

    At the beginning of October the Cleveland Plain Dealer reported "EPA cites five Ohio dairies for violations." Read the ILB entry here. At the time, the paper reported:

    They are among 10 northwest Ohio dairies the EPA inspected in November 2003. The EPA has inspected an additional 35 Midwest dairies, 10 of which were sent violation notices. The EPA will not release the names of those farms until the agency is able to confirm that the notices were received, said Arnie Lieder, enforcement officer for EPA Region 5, which comprises Ohio, Michigan, Illinois, Indiana, Minnesota and Wisconsin.
    Yesterday, Oct. 22, the Plain Dealer continued the story with this report. Some quotes:
    Four more Ohio dairies - among 11 overall - have been cited for violations of the Clean Water Act, the U.S. Environmental Protection Agency confirmed Thursday.

    The dairies, including four in Indiana and three in Michigan, join five other Ohio dairies cited in September for extensive manure and wastewater management problems.

    All the dairies are among 41 built by the Vreba-Hoff Dairy Development Corp., a Wauseon, Ohio-based company that helps mostly Dutch dairy farmers establish businesses in the United States.

    The violation notices were issued on the basis of unannounced U.S. EPA inspections in November 2003. * * *

    The EPA found eight violations at Arts Dairy, including manure spills around its open-stall barn, manure storage pit and calf pens. The Arts Dairy, which has 2,000 cows, is the only one regulated by the Ohio Department of Agriculture. The other Ohio farms have fewer than 700 cows, the number required for state regulation.

    Posted by Marcia Oddi on Saturday, October 23, 2004
    Posted to Environmental Issues

    Friday, October 22, 2004

    Indiana Decisions - One Court of Appeals, Two Tax Court decisions posted today

    Paul Cox v. SBC (10/22/04 IndCtApp) [ERISA; Preemption]
    Darden, Judge

    Issue. Whether Cox's claim is pre-empted by the Employee Retirement and Income Security Act ("ERISA"), 29 U.S.C. 1001 et. seq. * * *

    [W]e affirm the trial court's order granting SBC's motion for summary judgment. Cox's allegations that he is entitled to relief pursuant to the Indiana Wage deduction statute fails, as it is preempted by ERISA as a matter of law.
    SHARPNACK, J., and ROBB, J., concur.

    Jasper Wood Products, Inc. v. Dept. of Local Government Finance (10/22/04 IndTaxCt - NFP) [Property Tax Assessment]

    Zorn Industries v. Dept. of Local Government Finance (10/22/04 IndTaxCt - NFP) [Property Tax Assessment]

    "The issue before this Court is whether Zorns improvements are entitled to additional obsolescence depreciation, * * * For the foregoing reasons, the Court AFFIRMS the final determination of the State Board valuing Zorns property for the 1991 tax year."

    Posted by Marcia Oddi on Friday, October 22, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Clarification of Judge Miller's ruling proposed

    As reported in entries earlier this morning (scroll down), Judge Miller's ruling yesterday in the District 46 ballot dispute is being reported as voiding not only votes for the Indiana House on absentee ballots in the affected House District 46, but also votes for all candidates on that ballot.

    According to James Bopp, Jr., representing the Indiana Republican State Central Committee:

    Some have misinterpreted Judge Miller's order to order that no votes in any race should be counted on previously cast absentee ballots. We believe that this misunderstanding was not intended by Judge Miller and should be dispelled. As a result, we have moved Judge Miller to clarify his order to state that, regarding previously cast absentee ballots (with Jeff Lee's name on them), that only the votes in House District 46 should not be counted. All other votes would be. If a voter wants to vote in House District 46, he or she would be informed that they must cast a replacement ballot to be provided to all absentee voters by the County Election Boards.
    Here is a link to the motion to make such change in Judge Miller's ruling. The pertinent language:
    Plaintiff respectfully suggests that the following language would make the intent of paragraph 3 more clear so that it will not be misinterpreted:
    In addition, the Defendant County Election Boards are hereby mandated to immediately send notice and replacement ballots to all absentee voters, who have been provided absentee ballots with Jeff Lees name on them, advising them that their previously cast vote in House District 46 is void and will not be counted, that if they would like to vote for a candidate in House District 46, they need to send in the replacement ballot, and further that, if the voter chooses to utilize the replacement ballot, he or she should complete the replacement ballot as if voting for the first time.

    Posted by Marcia Oddi on Friday, October 22, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Transfer list for week ending October 22, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending October 8, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

    Two cases were granted transfer by the Supreme Court today: Marvin Taylor v. State, and State v. Thomas Quirk. Unfortunately, both decisions were classed as Not for Publication and neither is available online, as the Court of Appeals (unlike the Tax Court) does not post its NFP decisions.

    Posted by Marcia Oddi on Friday, October 22, 2004
    Posted to Indiana Transfer Lists

    Indiana Decisions - 7th Circuit posts two

    Olson, Charles P. v. Northern FS Inc. (ND Ill.)

    Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
    EVANS, Circuit Judge. Early in 2001, Northern FS took a chance when it hired Jacob Bloome, a 22-year-old without any sales experience, to replace Chuck Olson, who had won several sales awards in his more than 40 years with the company, as its new crop salesman. The fact that Bloomes supervisor described his performance as substandard in his 2 years as a crop salesman (Bloome no longer works for Northern FS) allows us to conclude that the company likely made a bad decision. Whether the decision was also an illegal one, however, is a closer call. Having considered the case, we think it should be resolved at a trial, rather than at the summary judgment stage where Olsons age discrimination claim came up a loser in the district court.
    Firestine, Cynthia v. Parkview Hosp Inc.* (ND Ind., William C. Lee, Judge)
    Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
    WILLIAMS, Circuit Judge. Cynthia Firestine sued Parkview Health System, Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to e-17, alleging that the company retaliated against her by removing her from her position for complaining about religious discrimination. The district court granted summary judgment in favor of Parkview, concluding that Firestine could not establish that she had engaged in protected activity and, alternatively, had no evidence that Parkviews stated, non-discriminatory reason for removing her from her position was pretextual. Because we conclude that there are genuine issues of material fact about whether Parkview retaliated against Firestine, we reverse the district courts grant of summary judgment and remand for further proceedings.
    _____
    *This decision was originally released as an unpublished order. In response to a motion from Firestine to publish, it is now issued as an opinion.

    Posted by Marcia Oddi on Friday, October 22, 2004
    Posted to Indiana Decisions

    Indiana Decisions - More on yesterday's LaPlante ruling

    Yesterday's decision by Marion County Judge Gary L. Miller in the House District 46 ballot dispute (see entry immediately below) is reported today in the Indianapolis Star in a story headlined "Legal ruling may mean vote tumult: Judge voids House district's absentee ballots." Some quotes:

    A Marion County judge ordered Thursday hundreds of absentee votes thrown out in a west-central Indiana legislative district because a Republican candidate was not included on the ballot. The decision by Judge Gary L. Miller could have broader implications, especially in what's expected to be a close race for governor.

    Miller ruled that in the House District 46 race, R. Brooks LaPlante will take Jeff Lee's spot on all ballots -- including ones already printed. The legal tussle centers on whether Lee could withdraw from the race with just weeks to go before the election.

    If Thursday's ruling stands and all absentee votes already cast are void, that would nullify votes in other races, too -- including governor. So that could mean hundreds of votes not counted in a district, which includes Terre Haute, which leans Democratic.

    I'm pleased to be able to provide access to Judge Miller's 13-page ruling. Some quotes from the conclusion:
    IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

    1. Defendant Robertson is hereby mandated and ordered to immediately certify R. Brooks LaPlante as the Republican House District 46 candidate to the Clay, Monroe, Owen, and Vigo County Election Boards without any qualification.

    2. The Defendant County Election Boards are hereby mandated to immediately remove Jeff Lees name from the ballot, to place R. Brooks LaPlante on the ballot as the Republican candidate for House District 46, to henceforth provide ballots to voters with R. Brooks LaPlante on the ballot as the Republican candidate for House District 46

    3. In addition, the Defendant County Election Boards are hereby mandated to immediately send notice and replacement ballots to all absentee voters who have been provided absentee ballots advising them that their previously completed ballots are void and will not be counted.

    4. Defendants to pay costs pursuant to Indiana Code 3-27-1-4.

    All of which is ORDERED, ADJUDGED, and DECREED on this the 21st of October 2004.

    More from the Star story:
    The legal fight isn't over. Democrats are asking the Court of Appeals and the Indiana Supreme Court to intervene.

    Meanwhile, a challenge to Lee's residency is pending in Vigo County.The clerks in the district, which spans Vigo, Clay, Monroe and Owen counties, are left to deal with significant logistical problems.

    In Vigo County, optical-scan readers used to count ballots would have to be reprogrammed. Officials aren't sure that can be done in time. And conducting such a crucial election -- with offices including president and governor up for grabs -- on paper ballots is a daunting thought, officials say. Absentee ballots have been printed, and an untold number have been returned.

    The Richmond Tribune-Star's report this morning is available here. Some quotes from the middle of the story:
    Miller's ruling could be put on hold, pending the outcome of a request from Democrat attorneys for an "emergency petition" before the Indiana Supreme Court. The high court has asked parties that oppose the petition to file papers by noon today.

    James Bopp Jr., attorney for the Indiana Republican State Central Committee, opposes that petition.

    "This is a highly discretionary and vary rarely granted request," he said, referring to the petition. "Since the Democrats can contest this election after the fact if [Democrat candidate] Vern Tincher loses, then we believe this petition should not be granted."

    David Reohmandini, counsel to the Supreme Court's chief justice, said in cases that involve a time element, conducting a hearing is very unusual. Instead, the high court could act from information provided, he said. The court also could determine it will take no action.

    If that is the case, Miller's ruling would stand.

    Terry Burns, spokesman for the Indiana Democrat Party, said attorneys also plan today to file an appeal of Miller's ruling before the Indiana Court of Appeals.

    "We are hoping our appeal will be heard before the Supreme Court and a resolution to this case can come quickly," Burns said, clarifying that he meant a resolution other than Miller's.

    "We don't agree with the judge and think he has just overstepped his authority, particularly in essentially voiding more than 1,000 absentee ballots," Burns said. "The biggest concern is that we will have voters who will be disenfranchised. Obviously their vote is voided in District 46, but also in the race for governor, president and U.S. Senate." * * *

    More than 1,800 absentee ballots that include District 46 have been mailed in four counties.

    Vigo County has 26 of its 87 voting precincts in District 46. Vigo County has mailed 902 ballots, with 501 ballots returned as of Thursday.

    "Our absentee voting overall is almost double of what it normally is," said Anita Anderson, Vigo County absentee voter clerk. "Our in-person voting averages 40 voters a day. A couple of days we had 98 voters. We have had more than 3,100 absentee votes."

    Clay County has six of its 23 precincts where voters cast an absentee ballot that includes the House District 46 race. There were 169 absentee ballots cast as of Thursday, said deputy clerk Beth Mallinak.

    Owen County has 18 of its 19 precincts where voters cast an absentee ballot that includes the House District 46 race. The county had received 556 ballots as of Thursday, said Owen County Clerk Nick Robertson. Owen County still has an additional 150 ballots that have been mailed but not yet returned, Robertson said.

    Monroe County has two of its 96 precincts in District 46. That county has received 35 absentee ballots said Marilyn McCoy, administrative assistant to the county clerk.

    Posted by Marcia Oddi on Friday, October 22, 2004
    Posted to Indiana Decisions

    Thursday, October 21, 2004

    Indiana Law - More on running for the General Assembly in Indiana

    More on a story I reported on here earlier today at lunchtime (apparently it was a scoop). A Star update posted 4:10 PM today provides more detail under the headline "Judge's ruling puts House race in turmoil: Controversy over who should be Republican candidate in west central Indiana district could also affect voting for governor after absentee ballots are ruled void." Some quotes:

    A Marion County judge ruled today that Rep. R. Brooks LaPlante should be the Republican choice on the November ballot in House District 46 in west central Indiana.

    And in an order that could have far-reaching implications, Judge Gary L. Miller also ruled that all absentee ballots cast in this district, which includes Terre Haute, are void. That doesn't just affect the legislative race, but it also would void all votes cast in what's likely to be a close governor's race. * * *

    Democrats have asked the Indiana Supreme Court to intervene and rule that Judge Miller doesn't have the jurisdiction to rule in this case -- that the decision should rest with a judge in Vigo County.

    Democrats also plan to appeal Miller's order to the Court of Appeals.

    If Miller's order stands, county officials from Vigo, Owen and Clay will face the difficult task of reprinting and re-sending absentee ballots with less than two weeks to go before the election. (emphasis added)

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Law

    Indiana Courts - Courts of Appeals panel holds court at Creekside Middle School

    "Court of Appeals case moves to school stage: 300 students at Creekside see 'real thing'" is the headline to this story today in the Indianapolis Star. Some quotes:

    But the sight in the auditorium next door was anything but usual.

    There, justices of the Indiana Court of Appeals took to a makeshift bench to hear oral arguments in a case that would be witnessed by the school's eighth-graders.

    The visit by the judiciary was organized by Judge Bernard "Buddy" Pylitt, who presides over Hamilton Superior Court 2. Pylitt is also dad to a sixth-grader at Creekside.

    "This is a real case," Pylitt told the nearly 300 students. "This is not a 'Judge Judy' or something you see on TV."

    Students heard both sides of the appeal involving the case of Albert Hardister, who was convicted in 2003 of dealing cocaine, possession of cocaine, possession of cocaine and a firearm, unlawful possession of a firearm by a serious violent felon and obstruction of justice.

    The judges were prohibited from discussing any details of the case, but following arguments, judges John G. Baker, James S. Kirsch and Margret G. Robb answered dozens of questions from the students.

    Those inquiries ranged from the salaries of the appellate court judges -- $110,000 -- to the strangest cases they had ever heard.

    Kirsch said his favorite case involved determining whether or not a Vietnamese pot-bellied pig was a pet or a farm animal.

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Courts

    Indiana Law - Federal grand jury reportedly probing AIG insurance product

    SmartMoney.com reports here today:

    NEW YORK -- American International Group Inc.'s (AIG) third-quarter net income rose 7.5% despite huge catastrophe losses from recent hurricanes and typhoons.

    The global insurance and financial-services company also disclosed Thursday that a federal grand jury is investigating a contract between AIG and Brightpoint Inc. (CELL) that was previously investigated by the Securities and Exchange Commission and was resolved in a settlement last September.

    AIG said it has been informed by the U.S. attorney for the Southern District of Indiana that the investigation concerns "nontraditional insurance" or "income smoothing" products marketed by AIG.

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Law

    Indiana Decisions - Employer Not Vicariously Liable For Trade Secret Misappropriation by Employee

    "Employer Not Vicariously Liable For Trade Secret Misappropriation by Employee" is the headline to this article today in Inside Business by Jay Taylor of Ice Miller. The lead:

    The Indiana Supreme Court has held that the Indiana Trade Secrets Act requires that an employer know or have reason to know that an employee was misappropriating trade secrets of a former employer before the new employer is liable for the misappropriation by the employee.

    The case: Infinity Products, Inc. v. Herbert Quandt (6/29/04 IndSCt). Access the ILB entry here (2nd case).

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Decisions

    Indiana Courts - Yes-or-no vote on retaining Judge John T. Sharpnack

    The Fort Wayne News-Sentinel reports that the state bar members vote "yes," in this editorial brief today:

    The lawyers verdict is in

    When you examine this years general-election ballot, youll see a yes-or-no vote on retaining Judge John T. Sharpnack of the Indiana Court of Appeals. Now those among us most likely to know what kind of job hes done have spoken: Keep him, they say.

    The Indiana State Bar Association sent surveys to all its in-state members, asking about Sharpnack, among other questions. Of those who returned surveys, 90 percent said he ought to be retained.

    There is more about Judge Sharpnack in this October 16th entry.

    Note: One way to look at some of the opinions Judge Sharpnack has written in 2004 would be to put the following, in quotes, in the search box in the right-hand column: "Sharpnack, Judge". That should produce links to the opinions Judge Sharpnack has written that have been reported here. Simply entering "Sharpnack" (without quotes) should produce links to most of those in which he has participated this year.

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Courts

    Indiana Decisions - One state court ruling today

    Federated Rural Electric Insurance Exchange v. National Farmers Union, et al.

    The oral argument in this case was scheduled for Tuesday, Oct. 19, but cancelled. The 3/30/04 Court of Appeals decision is here. However, it is vacated. Here is today's published order from Chief Justice Shepard, in which all justices concur:

    The Court of Appeals issued its opinion in this case at Federated Rural Elec. Ins. Exch. v. Natl Farmers Union Prop. and Cas. Co., 805 N.E.2d 456 (Ind. Ct. App. 2004), vacated. Federated Rural Electric Insurance Exchange filed a petition to transfer jurisdiction over the appeal to the Supreme Court. The Supreme Court granted the petition to transfer, thereby vacating the Court of Appeals opinion pursuant to Indiana Appellate Rule 58(A).

    After the Supreme Court granted transfer, but before the Court had an opportunity to issue its opinion, the parties filed a Joint Motion To Dismiss Appeal. The motion represents that the parties have settled their differences and requests that the Court dismiss the appeal. The Court now grants the parties motion and hereby dismisses the appeal. The Court of Appeals opinion remains vacated.

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts two today

    Wantz, Brian v. Experian Info Solutions (ND Ill.)

    Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
    MANION, Circuit Judge. Brian Wantz alleged that Experian Information Solutions, Incorporated, violated the Fair Credit Reporting Act, 15 U.S.C. 1681, et seq. (the Act), by failing to reinvestigate adequately an entry on his credit report as required by 15 U.S.C. 1681i(a). The district court entered summary judgment on behalf of Experian, reasoning that Wantz put forth no competent evidence that he was entitled to damages. We affirm on the same ground.
    Laboski, Eftin v. Ashcroft, John (Petition for Review of an Order of the Board of Immigration Appeals.)
    Before FLAUM, Chief Judge, and POSNER and ROVNER, Circuit Judges.
    FLAUM, Chief Judge. Petitioner Eftin Laboski, a citizen of Macedonia, petitions this Court for review of an order of the Board of Immigration Appeals (BIA), denying his motion for reconsideration of the dismissal of his administrative appeal. The BIA dismissed the appeal on the ground that it was untimely. The government now seeks dismissal of Laboskis petition for lack of subject matter jurisdiction, or in the alternative, summary affirmance of the BIAs decision. For the reasons stated herein, we hold that we have jurisdiction to review the BIAs order, and that the BIA did not abuse its discretion in determining that Laboskis appeal of the Immigration Judges (IJs) denial of his motion to reopen his case was untimely. Accordingly, we affirm the BIAs denial of Laboskis motion to reconsider.

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Decisions

    Indiana Law - Running for the General Assembly in Indiana

    A reader has sent this note: "Marion County Court orders LaPlante's name immediately on the ballot."

    The background is here in this story from the Oct. 15th Indianapolis Star:

    Republicans fired another legal shot Thursday in the battle over House District 46.

    The state Republican Central Committee filed suit against Kristi Robertson, the Democratic co-director of the Indiana Election Division, because she wouldn't approve placing R. Brooks LaPlante on the ballot.

    Rep. LaPlante, R-Terre Haute, decided earlier this year not to run again. But Republicans have picked LaPlante as their choice to replace Jeff Lee, who won the May primary but dropped out last month, saying he had moved out of the west-central Indiana district. Democrats maintain Lee hasn't really moved; they say it's a ploy to get LaPlante back on the ballot.

    Now, the two directors of the Election Division -- Robertson and Republican Brad King -- can't agree whether LaPlante should be on the ballot. A court hearing is set for Tuesday in Marion County.

    There was a much longer story yesterday in the Terre Haute Tribune Star, that began:
    A Marion County judge says he will rule by no later than noon Thursday whether Brooks LaPlante will be listed as the Republican candidate on the Nov. 2 election ballot in the race for Indiana House District 46.

    However, attorneys for the Indiana Democratic Party early today may file a motion challenging that judge's jurisdiction to hear the case.

    Democrats may file that challenge before the Indiana Supreme Court, seeking a ruling over whether Marion County Superior Court Judge Gary L. Miller or Sullivan Superior Court Judge Tom Johnson has jurisdiction on the issue.

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Decisions

    Indiana Law - More on proposed amendments to Indiana Constitution

    The Indianapolis Star today has coverage today of the three proposed amendments to the Indiana Constitution that will be on the Nov. 2 ballot. Some quotes:

    The topics: property taxes, when some county elected officials begin their terms in office and a line of succession in state government.

    Deciphering these ballot questions won't be easy: They're confusing; they're long (one is 63 words). But if a simple majority of voters say "yes," the state's supreme legal document will change.

    Re question #1, the Star's Michele McNeil writes that it is the most controversial and provides more extensive background information than earlier stories I've quoted from:
    Its purpose is to affirm and simplify the legislature's decision to stop requiring businesses, such as car dealers, to pay an inventory tax. The Indiana Constitution requires it, although the legislature has gotten around this by continuing to charge the tax but refunding it in the form of another tax break. The amendment also would exempt business "personal property" from property taxes, such as business machinery.

    The Indiana Farm Bureau opposes this because it fears farmers would continue to see their property tax burden increase as others get tax breaks. It's not enough that farmers would somewhat benefit, said Bob Kraft, the bureau's director of state government relations. Livestock and grain would be considered inventory, while tractors would be considered personal property and thus be exempt from property taxes. But farmland would not be exempt, he said.

    In addition, the amendment gives the legislature sweeping authority to make property tax decisions, he said.

    "It's too broad and it's too long-lasting," he said. "Changing the constitution and then trying to get that reversed is extremely difficult. That's part of the apprehension."

    But if the state is going to seriously reform property taxes, the legislature is going to have to have more latitude, said Pat Kiely, president of the Indiana Manufacturers Association and a former Republican lawmaker.

    His organization offers the amendment "lukewarm support."

    "There are inherent dangers in giving the General Assembly this broader power," he said.

    The amendment would also eliminate constitutional questions around property tax breaks, such as the homestead credit, or the deduction for military veterans. Since property is supposed to be taxed uniformly, there's some question about whether granting property tax breaks for some -- but not all -- is fair.

    As for the other two amendments:
    County officials are the subject of the second question on the November ballot. Voters will be asked to approve establishing a uniform date for the beginning of the terms of county elected officials. This would correct an anomaly in which some counties elect officials who don't take office until 14 to 16 months after their elections.

    The third amendment is a post-9/11 effort to create a smoother transfer of power if the governor and lieutenant governor are both unable to continue in office. The constitution now requires the General Assembly to pick a new leader, but it is silent on who is in charge if lawmakers can't get together.

    The line of succession, as proposed by lawmakers, would be: House speaker, Senate president pro tempore, state treasurer, auditor, secretary of state and superintendent of public instruction. The replacement would need to belong to the same political party as the governor.

    In an earlier entry, I said I had been unable to locate the text of these amendments. I hope to have this information later today and, if so, will post it here.

    [More] Here we go. A friend has sent me these links: SJR 5 (property tax); HJR 7 (county officials' terms); HJR 8 (line of succession). As the Star story points out, "Two separately elected General Assemblies must approve the change. Then, it's put on the ballot in the next general election." The 2003 and 2004 sessions, for instance, constituted the same elected General Assembly, the 113th. The 114th will begin with the upcoming election.

    The entire wording of the proposed constitutional amendment is generally not put on the ballot, instead it is described. The language to be placed on the ballots in the upcoming election was established by a bill passed in the last session, SEA 36-2004, available here.

    Posted by Marcia Oddi on Thursday, October 21, 2004
    Posted to Indiana Law

    Wednesday, October 20, 2004

    Indiana Decisions - More on South Bend Boat Club ruling

    The South Bend Tribune today has a story today on the status of the the Court of Appeals ruling in Millenium Club, Inc. v. Pamela Avila, et al. (6/11/04 IndCtApp). The headline: "Boat Club suits against students still pending: Some set for trial in March, other hearings set Nov. 30." Some quotes:

    SOUTH BEND -- When their cases come to trial in late March, it will be nearly two years since some local college students were sued by the tavern in which they were cited for being underage. Trial dates of March 30 and 31 were set recently for about 25 of the small claims court cases that remain pending, going back to April 2003.

    The suits are an attempt by Millennium Club Inc., owner of The Boat Club bar, to recoup expenses stemming from a January 2003 raid at the popular bar at 106 N. Hill St. More than 200 people, mainly students from the University of Notre Dame and Saint Mary's College, were cited by state excise police for being underage patrons in the bar.

    Some 30 to 40 cases are set for hearing Nov. 30, said the bar's attorney, Mitchell Heppenheimer, who would like to reach settlements with those defendants. In April 2003, the lawyer for Millennium Club filed the suits, seeking $3,000 damages from many of the underage patrons. The suits accused them of causing damage to the bar by using false identification to intentionally misrepresent their ages and also signing affidavits falsely claiming to be 21. * * *

    In August 2003, a Superior Court magistrate dismissed a number of the suits. The Indiana Court of Appeals last June reversed the ruling dismissing the cases and said that The Boat Club was entitled to bring the suits. The students involved in those cases chose not to appeal the Court of Appeals ruling, and many have since reached settlements with Millennium Club.

    Attorney Heppenheimer said he believes not quite half of the original 109 suits filed have been settled and dismissed. There has been some sort of cash payment -- not necessarily the full $3,000 -- in each of the cases that has been settled, according to the lawyer, who declined to discuss details of the payments.

    Earlier Indiana Law Blog entries are available here: 6/16/04; 6/11/04 (4th case); 5/2/04.

    Posted by Marcia Oddi on Wednesday, October 20, 2004
    Posted to Indiana Decisions

    Law - Still More on Running for Judge

    An Oct. 2 Indiana Law Blog entry, titled "Running for judge in Kentucky and Indiana," quoting from a Louisville Courier-Journal article, included this:

    A conservative group that wants to solicit judicial candidates' views on same-sex unions and other controversial issues is seeking to throw out a Kentucky rule that bars judges and challengers from committing themselves on topics that may come before them. * * *

    Indiana Right to Life filed a similar suit against a state judiciary panel in federal court in Lafayette on Wednesday. The Evansville-based group said it sent questionnaires to judicial candidates asking for their opinions on abortion, euthanasia and other issues.

    An Oct. 6th entry quoted from an AP story, including:
    A group that wants North Dakota judge candidates to answer questions about abortion, homosexuality and school prayer is suing to block judicial conduct rules that it says prevent the candidates from replying.

    The North Dakota Family Alliance filed the lawsuit in U.S. District Court in Fargo, its director, Christine Rondeau, said Monday. The group contends some of North Dakota's judicial conduct rules are unconstitutional because they infringe on the free-speech rights of judges and attorneys who are running for judgeships. * * *

    The lawsuit is being handled by a Terre Haute, Indiana, law firm that successfully represented the Minnesota Republican Party two years ago in a U.S. Supreme Court dispute over judicial speech. The high court's ruling in the case, called Republican Party v. White, gave candidates for judicial office more leeway to discuss issues during campaigns.

    Today the Associated Press is reporting:
    LEXINGTON, Ky. - Judicial candidates should be allowed to express opinions in campaign speeches without fear of being punished by Kentucky's restrictions on campaign speech, a judge ruled.

    U.S. District Court Judge Danny Reeves ruled Tuesday that the state Judicial Conduct Commission and Kentucky Bar Association cannot punish a candidate for making statements that appear to commit that candidate to a certain stance or issue.

    "Kentucky's canon of judicial conduct that professes to prohibit candidates from making promises, pledges or commitments, in fact limits the candidate's ability to announce his or her views in violation of the First Amendment of the United States Constitution," Reeves wrote. * * *

    Family Trust filed a lawsuit in U.S. District Court in September, saying that state ethics laws violated a judge's right to free speech and violated voters' rights to know how judges stand on certain issues.

    Three similar lawsuits were filed in North Dakota, Alaska and Indiana.

    The Kentucky lawsuit asked Reeves to declare an emergency injunction before the Nov. 2 election so Family Trust could send its surveys to judicial candidates again without those candidates fearing that they will run afoul of state ethics laws. * * *

    [L]awyers for Family Trust argued that the state's "commit" clause was overly broad and vague and violated a 2002 landmark U.S. Supreme Court case that said that judges can make some statements on issues.

    In his decision, Reeves said just because judges can make statements, doesn't mean they have to or will make statements.

    Unfortunately, the Eastern District of Kentucky does not appear to make its opinions available.

    The Indiana case, Indiana Right to Life v. Shepard, was filed in the ND Indiana, Lafayette, before Judge Sharp. According to a story in the Indiana Lawyer today, Judge Sharp, on October 14th, denied Right to Life's request for a preliminary injunction, citing time remaining before the November 2nd election. That ruling also does not appear to be available online.

    [More] A press release from James Bopp, Jr. (Bopp, Coleson & Bostrom, Terre Haute), lead counsel for the plaintiffs in the Kentucky suit, headlined "Kentucky Judicial Conduct Rules Enjoined", reports:

    Federal District Court Judge Danny C. Reeves has granted a preliminary injunction against provisions of the Kentucky Code of Judicial Conduct that prohibited state court judicial candidates from responding to a survey asking their views on legal and political issues. Memorandum Opinion and Order Granting Partial Injunctive Relief, Family Trust Foundation of Kentucky, Inc. v. Wolnitzek, No. 6:04-473-DCR (E.D. Ky., Oct. 19, 2004). The court held that provisions of Kentucky's Code that forbid judicial candidates from making "pledges or promises" of conduct in office or to "commit or appear to commit" candidates to deciding a case in a particular way violated the First Amendment to the U.S. Constitution because these provisions prohibited candidates from simply announcing their views on issues. * * *

    The district court stayed its order granting a preliminary injunction until Thursday, October 21, 2004, in order to provide the Defendants the Kentucky Judicial Conduct Commission. the Kentucky Inquiry Commission, and the Kentucky Bar Counsel the opportunity to request a stay of the court's order from the United States Court of Appeals for the Sixth Circuit. Today, the Defendants requested such a stay and filed a notice of appeal to the Sixth Circuit.

    Posted by Marcia Oddi on Wednesday, October 20, 2004
    Posted to General Law Related

    Indiana Decisions - Seven posted today by Court of Appeals

    Cordell Jackson v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
    Riley, Judge

    STATEMENT OF CASE. Appellant-Defendant, Cordell Jackson (Jackson), appeals his conviction for rape, a Class A felony, [IC] 35-42-4-1. We affirm.

    ISSUES. Jackson raises two issues on appeal, which we restate as follows:
    Whether the conditions of his probation were specified in the plea agreement.
    Whether his probation conditions are reasonably related to the treatment of the defendant and the protection of public safety. * * *

    CONCLUSION. Based on the foregoing, we find that the sexual offender probation conditions were specified in the plea agreement, and therefore, the trial court did not abuse its discretion. Additionally, we find that the challenged probation conditions are reasonably related to the goals of rehabilitation and public safety and accordingly, the trial court did not abuse its discretion. Affirmed.
    CRONE, J., and VAIDIK, J., concur.

    Pamela Fackler v. Melvin Powell, et al (10/20/04 IndCtApp) [Wills, Trusts, and Estates]
    Baker, Judge
    Today we must determine what tribunal is authorized to hear litigation following a dissolution of marriage proceeding regarding the parties settlement agreement and decree of dissolution. Appellant-plaintiff Pamela S. Fackler brings this interlocutory appeal challenging the trial courts denial of her motion for summary judgment and request for attorneys fees. Specifically, Fackler contends that she was entitled to summary judgment because a Settlement Agreement (the Agreement) executed between the parties clearly and unambiguously awarded full ownership of a promissory note and mortgage to her. Moreover, Fackler argues in the alternative that if the Agreement is ambiguous, extrinsic evidence shows that the parties intended that she become the owner of the promissory note and mortgage.

    Appellees-Defendants Melvin J. Powell, Jr. and M. Jack Powell, Jr. Living Trust (collectively, Powell) cross-appeal the trial courts denial of their motion for summary judgment and request for attorneys fees. Specifically, Powell contends that because the Agreement is ambiguous and emanates from a marriage dissolution proceeding in a divorce court, the trial court did not have subject matter jurisdiction to resolve this dispute. Further, Powell argues in the alternative that the Agreement clearly and unambiguously awarded only $23,000 to Fackler.

    We conclude that the terms of the Agreement were not ambiguous, and that the Agreement awarded full ownership of the promissory note and mortgage to Fackler. Thus, although the trial court properly exercised subject matter jurisdiction over this case, it erred in denying Facklers motion for summary judgment and her request for attorneys fees. Thus, we reverse and remand this cause to the trial court for it to determine the amount of attorneys fees owed to Fackler. * * *

    The judgment of the trial court is affirmed in part, reversed in part and remanded so that the trial court may determine the amount of attorneys fees that Powell must pay Fackler.
    KIRSCH, C.J., and ROBB, J., concur.

    Lesley Krebs v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
    May, Judge
    * * * Krebs argues the trial judges imposition of a one hundred year sentence is inappropriate and disproportionate. However, we do not address that argument. Instead we evaluate sua sponte the constitutionality of Krebs sentence under the United States Supreme Courts recent decision in Blakely v. Washington, ___U.S. ____, 124 S. Ct. 2531 (2004).

    Prior to Blakely, we reviewed our trial courts sentencing decisions for an abuse of discretion. See, e.g., Bocko v. State, 769 N.E.2d 658, 667 (Ind. Ct. App. 2002), rehg denied, trans. denied 783 N.E.2d 702 (Ind. 2002). If a trial court used aggravating or mitigating circumstances to modify the presumptive sentence, all we required the trial court to do was: (1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulate the courts evaluation and balancing of the circumstances. See id.

    However, in Blakely, the Supreme Court held the Sixth Amendment requires a jury to determine beyond a reasonable doubt the existence of aggravating factors used to increase the sentence for a crime above the presumptive sentence assigned by the legislature. 124 S. Ct. at 2536. The Court held the fact of a prior conviction is an exception to this rule. Id. Accordingly, it appears our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history. [emphasis added]

    The trial court enhanced Krebs sentences based on the following aggravating circumstances:

    Im finding aggravating circumstances throughout this because the crime was particular [sic] heinous crime involving a 10 and a 12 year old daughter who - and he had obviously confronted the victims to commit the crime. Thats aggravating. He was obviously in a position of trust being a father and from the pattern of this occurrence, it would appear that he would probably commit these crimes again, it appears to the Court.
    (Tr. at 217-18.)
    The trial court then sentenced Krebs to a total of one hundred years in the Indiana Department of Correction, stating:
    Im adding 5 years to the 30 years on that. 30 years will be executed in DOC. 5 years will be suspended. On Count II, also a Class A felony, there will be a 30 year sentence to be consecutive with Count I - it will be a 35 year sentence. 30 years executed. 5 years suspended. Count II to be consecutive with Count I. Count III, is a Class A felony. There will be a 30 year sentence. Im finding aggravating circumstances for the same reasons I already stated and Count III will be consecutive with Counts I and II. Count IV is a Class B felony a 10 year stated term. Im finding aggravating circumstances that I repeated and adding 2 years to that. 10 years will be executed consecutive with Counts I, II and III. Count V merged. Count VI is a Class A misdemeanor. There will be a one year sentence to be concurrent with Counts I, II, III, and IV. And executed sentence sentence thereby of 100 years and the aggravating circumstances that I stated - that I considered and repeat for deciding this sentence consecutive.
    (Appellants App. at 218.)
    The trial court enhanced Krebs sentences based on factual findings without a jury making those findings beyond a reasonable doubt. That procedure violates Krebs Sixth Amendment right to trial by jury. See Blakely, 124 S. Ct. at 2536.

    CONCLUSION. Because the State did not present sufficient evidence to convict Krebs of Count I, child molesting as a Class A felony, we reverse Krebs conviction as to that count. However, we affirm the remainder of his convictions and remand for sentencing proceedings consistent with Blakely.
    Affirmed in part, reversed in part, and remanded.
    SHARPNACK, J., and BAILEY, J., concur.

    In Re: Guardianship of A.R.S. & T.M.D. (10/20/04 IndCtApp) [Family Law]
    Vaidik, Judge
    Charlotte Hensell appeals the trial courts denial of her petition to terminate William and Barbara Staffords guardianship of her two children, A.R.S. and T.M.D. (collectively, the children). We find that the trial court erred by failing to issue detailed and specific findings in this case, which resulted in the children continuing their placement in the care and custody of someone other than their natural parent. Additionally, because we are unable to determine whether the trial court employed the proper standard of review absent such findings, we must reverse the trial courts denial of the petition to terminate guardianship. We therefore remand for detailed and specific findings using the clear and convincing evidence standard of review. * * *

    Because the trial court did not issue detailed and specific findings in this case, we must remand. We must also reverse, however, because absent any findings and in light of the confusion below regarding what standard of review to apply to the action, we cannot be certain that the proper standard of review was employed. Consequently, we reverse and remand this cause to the trial court to issue detailed and specific findings using the clear and convincing evidence standard in arriving at its decision. Reversed and remanded.
    RILEY, J., concurs.

    CRONE, J., dissents with separate opinion.
    I respectfully dissent. I agree with the majority that Guardianship of B.H. requires the presentation of clear and convincing evidence that a childs interests are best served by placement with a person other than the natural parent and the entry of detailed and specific findings to support the initial removal of the child from the natural parent. Given the strong presumption that a childs interests are best served by placement with his or her natural parent, the additional burden of entering detailed and specific findings is warranted to ensure an intelligent review of such an extraordinary remedy.

    I do not agree, however, that we should expand the special findings requirement to subsequent guardianship proceedings. Once the threshold for establishing a guardianship has been met, I believe that it is overly burdensome to require special findings upon the denial of every petition for modification or termination. * * *

    James Hannis v. John Deuth (10/20/04 IndCtApp) [Criminal Law & Procedure]
    Sharpnack, Judge
    James Hannis appeals the trial courts denial of his petition for writ of habeas corpus relief filed against John Deuth, Superintendent of the Correctional Industrial Facility. Hannis raises one issue, which we restate as whether the trial courts order denying Hanniss petition for writ of habeas corpus relief is clearly erroneous. We affirm. * * *

    In summary, we conclude that under Ind. Code 35-50-6-1, Hannis was still on parole from the eight-year sentence when he committed a new offense. Thus, when the parole board revoked his parole, the parole board properly reinstated Hanniss eight-year sentence. Consequently, we conclude that the trial courts findings of fact and conclusions thereon denying Hanniss writ for petition of habeas corpus are not clearly erroneous.

    For the foregoing reasons, we affirm the trial courts denial of Hanniss petition for writ of habeas corpus relief. Affirmed.
    BAILEY, J. and MAY, J. concur

    Kacey M. Chandler v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
    May, Judge
    * * * Chandler was also found guilty of maintaining a common nuisance. Ind. Code 35-48-4-13(b) provides a person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times: (1) by persons to unlawfully use controlled substances; or (2) for unlawfully . . . (B) keeping . . . controlled substances . . . commits maintaining a common nuisance, a Class D felony.
    The State did not prove Chandlers constructive possession of marijuana by his exclusive possession of the premises or by additional circumstances indicating he knew the marijuana was present. We therefore find there was insufficient evidence he was maintaining a common nuisance. See [Smith v. State, 787 N.E.2d 458, 460 (Ind. Ct. App. 2003).]

    We affirm Chandlers conviction of possession of cocaine but reverse his convictions of possession of marijuana and maintaining a common nuisance.
    Affirmed in part and reversed in part.
    SHARPNACK, J., and BAILEY, J., concur.

    Robert Trimble v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
    May, Judge
    Robert Trimble appeals his convictions of abandonment or neglect of an animal, a Class B misdemeanor, and harboring a non-immunized dog, a Class C infraction. He raises three issues on appeal, one of which we find dispositive and restate as whether a warrantless search of a doghouse and seizure of a dog located in Trimbles yard was permissible under the Indiana and United States constitutions. We reverse. * * *

    Conclusion. The police conducted a warrantless search of an area where Trimble had a reasonable expectation of privacy, and the officers search of Trimbles yard and the seizure of Butchie, in the absence of exigent circumstances, was unreasonable under the totality of the circumstances. The search and seizure therefore violated both the Indiana and United States constitutions and we must accordingly reverse. Reversed.
    VAIDIK, J., concurs.

    SULLIVAN, J., dissents with separate opinion.
    * * * My conclusion, as in Divello, is that the deputy here was in a place where he had a right to be, i.e. at the doghouse which was located further removed from the back door where he also had a right to be as part of his investigation. That conclusion does not end the inquiry, however. The question raised is whether the officer had a legitimate right or even an obligation to extract the dog from the doghouse in order to ascertain its condition.

    In my view the intrusion to Trimbles right of privacy with respect to the dog and the doghouse was minimal in comparison to the very real likelihood that delay would exacerbate the dogs reported condition.

    In short, the deputy sheriff was doing his job and did not carry out his responsibility by virtue of an unreasonable search and seizure. For this reason, I would affirm the convictions.

    Posted by Marcia Oddi on Wednesday, October 20, 2004
    Posted to Indiana Decisions

    Law - Supreme Court vacates Texas redistricting decision

    Last year the Texas legislature, with a Republican majority in both houses, redistricted its congressional seats. The redistricting was challenged. On Monday of this week the United States Supreme Court:

    [K]ept alive a Democratic constitutional challenge to a Republican redistricting plan in Texas yesterday, ordering a three-judge district court to reexamine its January decision upholding the plan. * * * [T]he Supreme Court told the district court to take account of the justices' split decision in April in a similar case in Pennsylvania. In that case, Veith v. Jubelirer, the court upheld a pro-Republican plan but refused to rule out the possibility that extreme partisan gerrymandering could violate the Constitution.

    Opponents of the plan have argued that it harms the interests of minorities, in violation of the Voting Rights Act; that the legislature improperly redrew the lines twice in one decade; and that the plan is so skewed in favor of Republican candidates as to violate the constitutional rights of Democrats.

    The three-judge panel overruled these claims in January, and the Supreme Court refused to block the plan's implementation.

    Because the justices yesterday ordered the district court to consider Veith, it appears that only the opponents' third claim -- unconstitutional partisan gerrymandering -- is still alive. * * *

    "It's somewhat surprising, because Veith was a monumental non-decision, a case in which five justices said partisan gerrymandering cases can go forward, but also said there is no standard by which to judge them," said Richard Hasen, an election law specialist at Loyola Law School in Los Angeles. "It's a way of delaying things. Maybe it makes sense in an election year, and maybe it makes sense where Justice Kennedy doesn't know what he wants to do."

    The Texas case is Henderson v. Perry, No. 03-9644.

    The above quotes are from this story by Charles Lane published Tuesday in the Washington Post.

    "Justices Order Review of Texas' Political Map: The Supreme Court tells a lower bench to review whether a redistricting plan that favors the GOP is unconstitutional. It won't affect Nov. 2 vote." That is the headline from this story Tuesday in the LA Times, by David G. Savage and Scott Gold. Some quotes:

    In a one-line order, the justices told a lower court to reconsider whether the plan, the handiwork of House Majority Leader Tom DeLay (R-Texas), goes so far as to be unconstitutional. * * *

    After each census, states redraw their electoral districts to take account of shifts in population. The congressional delegation in Texas is currently evenly divided, with each party controlling 16 seats.

    When the GOP captured control of the Texas Legislature in 2002, Delay pressed lawmakers in Austin to draw the state's districts for a second time to bolster the slim Republican majority in Washington. As a result, Republicans are expected to control as many as 22 Texas seats after the Nov. 2 election. Among the senior Democrats who now find themselves in predominantly Republican districts are Reps. Martin Frost and Charles W. Stenholm. * * *

    The Supreme Court has been troubled by the specter of "rigged" congressional elections, but it has been divided over whether there is a legal solution.

    The majority party in many states draws districts to obtain the maximum benefit. In Pennsylvania, for example, Republicans took control of the state Legislature in 2000 and arranged district lines to give the GOP a 12-7 majority in its congressional delegation.

    Last year, the Supreme Court took up a challenge to decide whether this "partisan gerrymander" violated the Constitution. The justices upheld the Pennsylvania map. The court's four-member conservative bloc, led by Justice Antonin Scalia, ruled that judges had no authority to second-guess these highly political decisions. * * *

    The Texas redistricting plan was challenged in a federal court there just before the Supreme Court ruled in the Pennsylvania case. The judges in Texas essentially agreed with Scalia's view that the Constitution does not limit political redistricting. They declined to delay next month's congressional elections in Texas, and the Supreme Court has never voided an election after the fact. * * *

    Election law experts said they were puzzled by this result. The Pennsylvania ruling "raises a lot of questions, but Justice Kennedy is pivotal and his opinion is obscure," said UCLA law professor Daniel Lowenstein.

    If nothing else, Monday's ruling gives the Democrats' lawyers another chance to try to prove that the GOP gerrymandering is unfair. "Texas saw the most blatantly partisan gerrymander ever," said Loyola law professor Richard Hasen. But he too was skeptical that the challengers would prevail in court. "It all comes down to Justice Kennedy," he said, "and he has not made a decision yet."

    And Linda Greenhouse of the NY Times wrote yesterday:
    In an unsigned and apparently unanimous order, the justices vacated a ruling issued in January by a special three-judge federal district court in Austin that upheld an unusual mid-decade redistricting imposed by the Texas Legislature's new Republican majority last year over Democratic opposition.

    The district court had rejected the Democrats' argument that the new plan, engineered by Tom DeLay of Texas, majority leader of the United States House, was an unconstitutional partisan gerrymander. But the justices ordered the panel to reconsider that decision in light of the Supreme Court's own decision six months ago in a redistricting case from Pennsylvania.

    The order was something of a surprise. In the Pennsylvania case, Vieth v. Jubelirer, decided April 28, the court voted 5 to 4 to reject the Democrats' claim of an unconstitutional partisan gerrymander in new Congressional districts drawn by state legislators after the 2000 census. In light of that ruling, some election law experts assumed the justices would deal with the Texas Democrats' appeal simply by summarily affirming the district court's decision. That would have been the end of the Texas case.

    Instead, the order to reconsider the decision keeps the case alive and strongly suggests that Justice Anthony M. Kennedy, who cast the swing vote in the Pennsylvania case, agreed with its four dissenters that there is more to say about partisan gerrymandering and the Constitution.

    For background on political redistricting, see the following ILB entries: 2/21/04; 4/19/04; 5/7/04 (quoting Joan Biskupic: "It has become a fact of contemporary politics that whatever party controls the statehouse can draw a congressional map to maximize its political power and the overall number of seats it wins statewide"); 5/12/04; 5/23/04; 6/7/04

    Posted by Marcia Oddi on Wednesday, October 20, 2004
    Posted to General Law Related

    Law - Crime labs under the microscope

    "When Labs Falter, Defendants Pay" is the headline to today's story in the Chicago Tribune series on Forensics Under the Microscope. A quote:

    Labs are supposed to be where science and the pursuit of justice merge, but too often they are a place where mistakes, omissions and a lack of rigor lead investigators down false trails that end in wrongful convictions. A Tribune investigation has found that across the country, forensic science is being undermined by unproven theories and experts who testify in a misleading fashion. * * *

    In crime labs across the country, DNA testing has unraveled convictions built on faulty lab work, and crime analysts have been accused of slanting their test results to help prosecutors win convictions.

    Posted by Marcia Oddi on Wednesday, October 20, 2004
    Posted to General Law Related

    Indiana Law - Domestic violence handbook

    The Munster Times reports here today that:

    CROWN POINT -- Lake County Sheriff Rogelio "Roy" Dominguez unveiled a new domestic violence handbook Tuesday that he hopes law enforcement agencies across the county will put into practice.

    U.S. Attorney Joseph Van Bokkelen and Lake County Prosecutor Bernard Carter joined Dominguez at the Lake County Government Center for a meeting of the Domestic Violence Task Force. The audience consisted of police and legal professionals and those who maintain shelters for victims of domestic violence, such as Lisa Wein, director of Haven House, who invited the officials to mark Domestic Violence Month.

    Dominguez said the Sheriff's Department won't officially adopt the policy manual until those agencies and individuals who may use it have an opportunity to provide input.

    He described the manual as a tool for police officers to determine if a domestic violence call should produce sufficient evidence to make an arrest. It also covers the duties of 911 dispatchers and how the prosecutor's officer should follow up investigations.

    After-care for victims as well as their children and pets are covered, too.

    Carter recalled that when he first joined the county prosecutor's office in 1983, domestic violence calls required a 24-hour "cooling off" period before charges could be filed. He explained that was the law and the perceived right thing to do at the time, but no more.

    Carter said his office now encourages victims to press charges. He believes deputy prosecutors should receive domestic violence training in order to be more sensitive to the issues involved in such cases.

    Posted by Marcia Oddi on Wednesday, October 20, 2004
    Posted to Indiana Law

    Environment - Non-native species in Lake Michigan

    "No snakeheads, but other critters surface" is the headline to this story in the Chicago Tribune this morning. Some quotes:

    The first sweep of Burnham Harbor for the voracious snakehead fish today turned up seven species that are not native to Lake Michigan, but no sign of the dreaded predator that scientists fear could devastate the Great Lakes.

    A day after they sank traps around the northern edge of the harbor, just east of Soldier Field, biologists from the Field Museum and the U.S. Army Corps of Engineers pulled up the nets this morning to see what had swum inside to nibble on bait.

    They found Chinook salmon, Coho salmon, brown trout and rainbow trout, as well as two types of crayfish and two invasive species that already have invaded the Great LakesRound gobies and zebra mussels. But no snakeheads.

    "This is a good sign," said Philip Willink, a Field Museum fish biologist. "The longer we go without finding any snakeheads, the more likely it is that there aren't any others out there." * * *

    Snakeheads and another import, the Asian carp, are considered major threats to the nation's multibillion-dollar sport and commercial fishing industry. Biologists say both fish pose significant risks to the Great Lakes, the largest freshwater ecosystem in the world.

    The fear is that snakeheads somehow may have gotten into Lake Michigan and established a breeding population there. The hope is that the recent catch was a freak, possibly a pet fish that got thrown into the lake after it outgrew its tank.

    The search for snakeheads will continue the rest of the week. In addition to regular checks of the trap nets, the Illinois Department of Natural Resources plans to troll the harbor in a boat equipped with electrodes that will stun the fish, which will then rise to the surface to be examined.

    Posted by Marcia Oddi on Wednesday, October 20, 2004
    Posted to Environmental Issues

    Tuesday, October 19, 2004

    Indiana Decisions - One today from the Court of Appeals

    Delta Airlines, et al. v. Bryan & Jennifer Cook (10/19/04 IndCtApp) [Torts; Contracts]
    Najam, Judge

    * * * The Cooks filed a small claim in Marion County against ACA, Delta, and Globe, and the court entered judgment in favor of the Defendants. The Cooks then appealed to the Marion Superior Court See footnote and filed a complaint against the Defendants alleging negligent infliction of emotional distress and breach of contract. The Cooks maintained in relevant part that ACA and Delta were negligent in permitting Girard to board the flight despite his display of erratic behavior prior to boarding. The Cooks subsequently filed a motion to compel discovery, alleging that the Defendants had failed to produce a requested copy of the passenger manifest for the flight at issue. The trial court granted that motion.

    ACA filed a motion for summary judgment alleging that it was entitled to judgment as a matter of law because: (1) the Cooks claims are preempted by federal law; (2) their complaint is barred for failure to timely file their appeal with the Marion Superior Court; and (3) the Cooks are not entitled to damages under Indianas modified impact rule. Delta and Globe also filed a joint motion for summary judgment alleging that they were entitled to judgment as a matter of law because: (1) the Cooks are not entitled to damages under Indianas modified impact rule; (2) the undisputed evidence shows that there was no breach of contract; and (3) the undisputed evidence shows that Delta and ACA are not partners, as the Cooks alleged in their complaint.

    Following a hearing, the trial court entered partial summary judgment in favor of each of the Defendants and denied their motions in part. In particular, the trial court concluded, as a matter of law, that neither Delta nor ACA breached any contract with the Cooks, that federal law does not preempt the Cooks claims, that Delta is not liable to the Cooks on their negligence claims, and that the Cooks claims are not precluded under Indianas modified impact rule. This interlocutory appeal and cross-appeal ensued. * * *

    Conclusion. In sum, the trial court did not err when it: (1) concluded that the Cooks tort claims are not preempted by federal law; (2) concluded that the Cooks have stated a claim upon which relief can be granted; (3) concluded that the Cooks appeal of the Small Claims Courts decision was timely; and (4) granted the Cooks motion to compel discovery. But we hold that there are genuine issues of material fact regarding whether Delta and ACA breached the terms of their contracts with the Cooks. Thus, we reverse the trial courts entry of summary judgment in favor of Delta and ACA on the breach of contract claims and remand for further proceedings consistent with this opinion. Finally, the Cooks have waived appellate review of whether the trial court erred when it entered summary judgment in favor of Delta on their negligence claims.
    Affirmed in part, reversed in part, and remanded for further proceedings.
    SULLIVAN, J., and BARNES, J., concur.

    Posted by Marcia Oddi on Tuesday, October 19, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Two today from the Supreme Court

    State of Indiana v. Kevin Starks (10/19/04 IndSCt) [Criminal Law & Procedure]
    Rucker, Justice

    A defendant who pleads guilty to driving while suspended as an habitual traffic violator may not later challenge the plea on grounds that the underlying offense is invalid. * * *

    In essence Starks indeed may be entitled to post-conviction relief from his 2001 guilty plea of driving while suspended as an habitual traffic violator. However, it is not a sufficient basis for relief that the underlying offense has been set aside on procedural grounds. This is the precise ground on which the post-conviction court relied in setting aside Starks conviction and ordering the resulting license suspension expunged from Starks driving record. In so doing the post-conviction court erred.

    Conclusion. We reverse the judgment of the post-conviction court.
    Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

    Phillip Lee v. State of Indiana (10/19/04 IndSCt) [Criminal Law & Procedure]
    Rucker, Justice
    The question presented is whether an illegal sentence imposed pursuant to a plea agreement automatically renders the entire agreement void. We conclude it does not.

    Facts and Procedural History. In 1988, the State charged Phillip Lee with robbery as a Class C felony and also alleged that he was an habitual offender. Under the terms of a written plea agreement Lee pleaded guilty to the robbery charge in exchange for the States dismissal of the habitual offender allegation. Also under the terms of the agreement, the trial court sentenced Lee to a term of eight years imprisonment, to run consecutively to a three-year sentence Lee was serving for an unrelated theft conviction. Lee eventually served both sentences and was discharged.

    In 1996, Lee was charged with dealing in cocaine as a Class A felony. He was also alleged to be an habitual offender based on the prior theft and robbery convictions. After a trial by jury Lee was found guilty as charged and was found to be an habitual offender. The trial court sentenced Lee to fifty years for the dealing conviction enhanced by thirty years for the habitual offender adjudication. Lees conviction and sentence were affirmed on direct appeal. See Lee v. State, 694 N.E.2d 719 (Ind. 1998).

    Presently serving an eighty-year sentence, and in an effort to have his habitual offender adjudication set aside, Lee filed a petition for post-conviction relief challenging his prior robbery conviction. After a hearing the post-conviction court denied relief. On review the Court of Appeals reversed. See Lee v. State, 792 N.E.2d 603 (Ind. Ct. App. 2003). Having previously granted transfer we now affirm the judgment of the post-conviction court. * * *

    Discussion. In general a trial court cannot order consecutive sentences in the absence of express statutory authority. At the time Lee committed the offense the statute governing consecutive sentences was limited to those occasions where the court was meting out two or more terms of imprisonment contemporaneously. See Kendrick v. State, 529 N.E.2d 1311, 1312 (Ind. 1988), superseded by statute. In this case Lees sentences for robbery and theft were not being imposed contemporaneously. As a result the trial court lacked statutory authority to order the sentences to be served consecutively. According to Lee, an illegal sentencing provision voids the entire plea agreement and requires vacation of the conviction and sentence entered under the agreement. In support Lee cites Sinn v. State, 609 N.E.2d 434 (Ind. Ct. App. 1993) and Thompson v. State, 634 N.E.2d 775 (Ind. Ct. App. 1994). * * *

    Our courts have long held that plea agreements are in the nature of contracts entered into between the defendant and the State. [cites omitted] As this Court has explained:

    [A] plea agreement is contractual in nature, binding the defendant, the state and the trial court. The prosecutor and the defendant are the contracting parties, and the trial courts role with respect to their agreement is described by statute: If the court accepts a plea agreement, it shall be bound by its terms.
    * * *

    The record shows that the evidence against Lee on the charge of robbery was overwhelming. By agreeing to plead guilty to the charge in exchange for the State dismissing an habitual offender allegation, Lee reduced his penal exposure by thirty years. See [IC] 35-50-2-8(e). Lee does not contend that he would have taken his chances and gone to trial had he known that the trial court lacked the statutory authority to run his eight-year sentence for robbery consecutive to his three-year sentence in the unrelated theft conviction, for a total of eleven years.

    Under some circumstances, the appropriate remedy to address an illegal sentence like the one here is to sever the illegal sentencing provision from the plea agreement, and remand the cause to the trial court with instructions to enter an order running the sentences concurrently. However Lee is entitled to no such relief. A defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence. Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987). As this Court has more recently explained:

    [D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category.
    Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind. 2002) (citation and quotation omitted).

    Conclusion. We affirm the judgment of the post-conviction court.
    Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

    Posted by Marcia Oddi on Tuesday, October 19, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts four today

    Richmond, Michael v. Scibana, Joseph, Warden, Federal Correctional
    Institution at Oxford, Wisconsin
    (WD Wis.)

    Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
    EASTERBROOK, Circuit Judge. * * * The district court dismissed his petition because Richmond had never asked the Warden or anyone else at the Bureau of Prisons to place him in community confinement before the last 10% of his sentence and thus had not exhausted the administrative remedies available under 28 C.F.R. 542.13 to 542.15. * * * Affirmed.
    Owens, Anthony v. USA (SD Ind., Larry J. McKinney, Chief Judge)
    Before POSNER, ROVNER, and WOOD, Circuit Judges.
    POSNER, Circuit Judge. Anthony Owens filed a motion under 28 U.S.C. 2255 to set aside his drug conviction and sentence because his trial lawyer fumbled what should have been a successful motion to suppress evidence seized pursuant to a warrant to search Owenss house. The district court denied the motion, and Owens appeals. He is met at the threshold by our decision in Holman v. Page, 95 F.3d 481, 488-92 (7th Cir. 1996), which holds that a failure to make a Fourth Amendment objection to the admission of evidence, however meritorious the objection, cannot amount to ineffective assistance of counsel in a constitutional sense if the evidence was reliable, so that its admission, even if improper, created no risk that an innocent person would be convicted. Owens asks us to overrule Holman, noting its inconsistency with the case law of the other circuits and the long shadow cast over it by subsequent decisions of the Supreme Court. We need not consider his request unless we decide that his lawyer indeed booted a good Fourth Amendment claim, so let us begin with that question. * * *

    The evidence was overwhelming that it was indeed Owenss house in which the crack was found. The lawyers decision to bet his all on a denial of that fact and by doing so forfeit a compelling ground for excluding evidence essential to convict his client was therefore a blunder of the first magnitude. * * *

    We conclude that Holman should be overruled, and we have therefore circulated this opinion to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). A majority of the judges voted not to hear the case en banc. Judges Manion, Kanne, and Evans voted to hear the case en banc, and Chief Judge Flaum and Judge Williams did not participate in the consideration or decision of whether to hear the case en banc. REVERSED AND REMANDED

    Smith, Wayne v. Qwest Comm Corp (ND Ill.)
    Before CUDAHY, KANNE, and EVANS, Circuit Judges.
    EVANS, Circuit Judge. In this case, we are asked to review a nationwide class certification, accompanied by an injunction against all competing class actions. The plaintiff class is made up of landowners whose property is subject to railroad rights of way, along which defendant telecommunications companies have installed fiber-optic cables without the landowners permission. * * * 1401. We reversed certification of a virtually identical class in Isaacs v. Sprint Corp., 261 F.3d 679 (7th Cir. 2001), observing that differences in state law concerning the scope of the railroads easements, along with differences in the various deeds themselves, would result in a nightmare of a class action. This time, though, the class has been certified for settlement only, which the settling parties insist eliminates the complications that made the class uncertifiable in Isaacs. The intervening partieswho represent statewide plaintiff classes already certified in Tennessee and Kansasargue that the class still fails to meet the certification requirements of FED. R. CIV. P. 23(a) and (b). * * *

    We agree with the intervenors that they are inadequately represented by the settling plaintiffs.1 We therefore VACATE the nationwide class certification and the district courts injunction against competing class actions and REMAND the case to the district court for further proceedings. Costs are awarded to the Intervenors.

    [at p. 5 of 11] CUDAHY, Circuit Judge, dissenting. It seems to me that the majority has entirely lost sight of the benefits of the federal court settlement that has been successfully negotiated here. The development involved here is the laying of a 36,000-mile network of transcontinental fiber-optic cables crossing many states to provide a national telecommunications grid. This installation of fiber-optic cables becomes part of the national communications infrastructure, having an important value for the national economy as well as for national security. Obviously, to the extent uniformity in treatment of affected landowners can be achieved, legal costs and costs of administration (ultimately charged to telecommunications users) can be reduced. The state-by-state treatment favored by the majority is likely to produce a nightmare of complexity, the inequitable treatment of landowners in different states and increased charges to telephone users everywhere. If a similar approach had been applied to the construction of the first transcontinental railroad, the Pony Express might still be galloping along.

    USA v. Cellitti, Joseph (ND Ill.)
    Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Joseph Cellitti pleaded guilty to possessing a firearm after sustaining a felony conviction, 18 U.S.C. 922(g)(1), while reserving the right to challenge on appeal the district courts denial of his motion to suppress evidence. We now vacate and remand. * * *

    The testing of the keys in the lock of the Buick, and the impoundment and warrantless search of the car occurred as a direct result of the officers illegal seizure of the keys, and thus are fruits of the poisonous tree. The government has not argued that the police inevitably would have discovered the rifle in the Buick through any other means, and we must therefore conclude that the district court erred when it denied Cellittis motion to suppress the rifle. VACATED and REMANDED.

    Posted by Marcia Oddi on Tuesday, October 19, 2004
    Posted to Indiana Decisions

    Environment - Mandatory septic system inspections

    "Floyd closer to mandatory septic system inspections" is the headline to this story today in the Louisville Courier-Journal. Some quotes:

    The Floyd County Plan Commission voted unanimously last night to require county inspections of septic systems when homes are sold and inspections of construction sites to ensure that developers control runoff.

    The requirements are mandated by federal and state environmental agencies, said John Reisert, a member of the Plan Commission and president of the Floyd County Board of Commissioners.

    Posted by Marcia Oddi on Tuesday, October 19, 2004
    Posted to Environmental Issues

    Law - Statutory interpretation and legislative intent

    A story today in the Chicago Tribune is headlined "Judge hit for ruling on abuse: 2 legislators say law misapplied." Some quotes:

    In an unusual courtroom clash that could affect the rights of sex-abuse victims statewide, two legislators have filed sworn statements contending that a Cook County judge misinterpreted the intent of a law they sponsored last year.

    While some courts and legal experts have questioned the value of such affidavits, the lawmakers hope to undo a ruling they say blunts a legislative victory for victims of childhood sexual abuse.

    The new law, passed in July 2003 in the wake of the Boston clergy sex scandal, gave childhood abuse victims until age 28--another eight years--or in some cases longer, to file lawsuits against their alleged abusers.

    But Judge Diane Larsen ruled in August that the law does not apply to accusers who turned 20 before the new law was passed because their time to file a suit had run out under the previous statute.

    In a hearing Tuesday, an attorney will ask Larsen to reconsider that ruling, based in part on affidavits from state Sen. Jacqueline Collins (D-Chicago) and state Rep. James Brosnahan (D-Evergreen Park).

    The legislators said the law was intended to lengthen the time period for all accusers, except those who have settled their cases or whose claims have been dismissed by a judge. * * *

    [T]heir attorney, Jeanine Stevens of Chicago, argues the lawmakers' affidavits show the new law should apply to her clients. The law's language says it applies to "actions pending" when it passed and "actions commenced" afterward, she said.

    In practice, courts interpreting a statute typically give little, if any, weight to a lawmaker's affidavit because it may reflect only his or her personal view, said Elizabeth Garrett, law professor at the University of Southern California.

    "There's no way to determine if the majority of the people who voted for the law understood it that way," Garrett said.

    In Larsen's ruling, she interpreted the law by looking to a transcript from the House floor in which Brosnahan said, "The intent [of the law] is not to revive causes of action that have already expired."

    Lawyers for Brouillette, the Congregation of Christian Brothers religious order and the Archdiocese of Chicago, argue that Larsen ruled correctly.

    "I'm going to object to people writing affidavits after the judge has already ruled," said Patrick Reardon, attorney for Brouillette. "I've never seen anything like it."

    Posted by Marcia Oddi on Tuesday, October 19, 2004
    Posted to General Law Related

    Indiana Law - Cities battle adult stores in courts

    "Cities battle adult stores in courts: Most recent rulings favored regulators" is the headline to this feature today in the Louisville Courier-Journal. Some quotes:

    Legal battles are raging across the country over attempts by local governments to regulate adult businesses with at least 10 cases decided by federal appeals courts this year.

    "There is more adult-business litigation under way now than I've ever seen," said C. Michael Hatzell, a lawyer who represents several adult businesses in a dispute with metro Louisville.

    Seven of the 10 rulings handed down this year have gone against adult businesses, according to a review by Eric Kelly, a lawyer and professor of urban planning at Ball State University in Muncie, Ind., who specializes in such issues. He said it appears governments are doing a better job of drafting ordinances that don't violate the free-speech rights of the business owners.

    In such litigation, adult businesses typically contend that the regulations violate their First Amendment rights of free speech. For their part, local governments say they are simply trying to establish where such businesses can operate, and when. * * *

    U.S. Supreme Court rulings have made it clear that local governments have the authority to regulate adult businesses by establishing where they can operate and when, Kelly said. But lawsuits around the country are raising questions about how those regulations are being applied and whether they impose limits that are too stringent on the business operators' rights.

    Hatzell said there is so much litigation now because "any time you try to legislate morality, it will be challenged."

    Kelly said the 10 federal appeals decided this year are a strikingly large number involving the regulation of a single industry by local governments. The adult-entertainment industry, he said, "is very aggressive in trying to mold the law" to its advantage. * * *

    The most recent Supreme Court decision on the matter, issued in June, reinforced local governments' authority to license adult businesses, Kelly said. It answered a question about how adult-business operators must be allowed to appeal adverse decisions by municipal officials, he said. Now the adult industry's lawyers are focusing on other issues. A prominent question, Kelly said, is what kind of evidence municipalities must provide to the courts about adult businesses' impacts on their neighborhoods. Industry lawyers want the courts to require specific proof of increased crime, falling property values or other problems caused by adult businesses before local governments strictly regulate them, Kelly said.

    Lawyers for local governments want the courts to accept general evidence, including impact studies from other communities. Evidence of pornographic litter and prostitution around adult stores in Spokane, Wash., was a deciding factor in that city's winning a 9th U.S. Circuit Court of Appeals decision in May over World Wide Video.

    In Louisville, lawyers for the city and for two dozen adult businesses, including Pure Pleasure, have argued recently before Jefferson Circuit Judge Steve Ryan about whether evidence about the impact of adult businesses on neighborhoods should be admitted at this point in the case. * * *

    In Indiana, an adult video and novelty store called New Albany DVD is suing that city in federal court, saying it was illegally shut down in February only an hour or two after the City Council imposed a six-month moratorium on the opening of sexually oriented businesses.

    The store's lawyer argues that the city violated his clients' First Amendment rights by closing the store and that it must submit specific evidence about the impact of adult businesses on neighborhoods if New Albany DVD is to be prevented from reopening. City officials shut the store down by citing its lack of building and zoning permits. New Albany DVD's operators said the city illegally refused to perform a final inspection they had requested.

    In August, U.S. District Judge Sarah Evans Barker, who is handling the New Albany case, upheld the authority of the city of Indianapolis to license and inspect stores selling sexually explicit videos and magazines. She cited the Supreme Court ruling in June that supports the licensing authority of local government and questioned the analysis of an expert witness who testified that crime rates didn't increase around the store. New Albany DVD is using the same expert witness psychologist and sociologist Daniel Linz.

    Steve Mason, a lawyer for New Albany DVD, said the August ruling shouldn't affect the case because his client's store is different. Barker is expected to schedule a hearing in the suit this fall or perhaps issue a ruling based on documents already filed.

    Judge Barker's 8/27/04 decision in Annex Books v. Indianapolis is discussed (and linked to) in this 9/15/04 Indiana Law Blog entry. On page 10 of her opinion, Judge Barker cites to the recent U.S. Supreme Court decision, City of Littleton, Colorado v. Z.J. Gifts, 124 S. Ct. 2219 (2004) (available here). The New Albany case is discussed in this 9/7/04 entry. The May, 2004 9th Circuit decision mentioned above, World Wide Video v. City of Spokane, is available here.

    Posted by Marcia Oddi on Tuesday, October 19, 2004
    Posted to Indiana Law

    Law - Tribune forensic science series continues

    The Chicagio Tribune's series on forensic science continues today, with a feature on forensic odontologists. A quote:

    [B]ite-mark comparison has become a regular weapon in the forensic arsenal, with odontologists testifying in courtrooms hundreds of times.

    They're usually brought in for cases of child abuse, rape and sex murders, where bite marks sometimes are found on victims. But concerns about forensic dentists center less on how often they testify than on how easily judges and jurors accept their opinions as scientific proof.

    Courts frequently do so even though there is no accurate way to measure the reliability of bite-mark comparisons, and the method has gained acceptance without benefit of broadly reviewed research and scientific validation, elements that separate true science from guesswork.

    The consequences of such subjective testimony are becoming clear. In recent years, new evidence, including DNA, has proved that even a number of the discipline's pioneers have contributed to wrongful arrests and put innocent people behind bars.

    In some instances, odontologists can't even agree on the most basic issue--whether a wound is a bite mark at all.

    Forensic odontology has come to represent a case study in how easily forensic science's false aura of infallibility can distort the adversarial system of American justice.

    In that system, judges and juries are responsible for sifting through often-contradictory evidence. But when experts are allowed to overstate their findings and an unvalidated technique is equated with science, then the system can fail.

    "I think bite marks probably ought to be the poster child for bad forensic science," said David Faigman, a professor at the University of California Hastings College of the Law and co-editor of "Modern Scientific Evidence."

    To follow the whole series, go to this overview page each day.

    Posted by Marcia Oddi on Tuesday, October 19, 2004
    Posted to General Law Related

    Monday, October 18, 2004

    Indiana Decisions - One today from Court of Appeals

    Irwin Mortgage v. Marion County Treasurer (10/18/04 IndCtAp) [Procedure; Statute of Limitations]
    Friedlander, Judge

    Irwin Mortgage Corporation, f/k/a Inland Mortgage Corporation (Irwin), appeals the trial courts dismissal of its complaint against the Marion County Treasurer, the Marion County Auditor, and the Property Tax Assessment Board of Appeals (PTABOA) f/k/a Marion County Board of Review (collectively, Marion County). Irwin presents several issues for review that we consolidate, and restate as:

    1. Does the two-year statute of limitations of [IC] 34-11-2-4 bar Irwins federal constitutional claims pursuant to 42 U.S.C. 1983 (West 1998) and Irwins state constitutional claims?

    2. Do the notice requirements of the Indiana Tort Claims Act bar Irwins state constitutional claims?

    3. Do the notice requirements of the Indiana Tort Claims Act bar Irwins federal constitutional claims pursuant to 42 U.S.C. 1983?

    We affirm in part, reverse in part, and remand. * * *

    In conclusion, the Journeys Account statute saves Irwins federal claims from the applicable statute of limitations. The ITCAs notice requirements, however, bar Irwins state law claims as Irwin has failed to demonstrate substantial compliance with the statute. Further, the ITCAs notice requirements are inapplicable to Irwins 1983 claims. Therefore, we affirm the trial courts dismissal of Irwins state claims against Marion County, but reverse the trial courts dismissal of the 1983 claims, and remand to the trial court for further proceedings consistent with this opinion. Judgment affirmed in part, reversed in part, and remanded.

    BAILEY, J., and BAKER, J., concur.

    The Munster Times reports today on a recent, apparently Not for Publication, decision by the Court of Appeals. The headline is "Father loses bid to take over wrongful death suit: State court said Joseph Walker filed his appeal too late." The story begins:
    The Indiana Court of Appeals has thrown out an attempt by an Illinois man to regain control of the estate and wrongful death lawsuit of a single mother of two, who was killed last year in a drunk driving accident.

    The court said Joseph Walker Jr. was late in appealing a ruling last year by Porter Superior Judge Bill Alexa that removed him as personal representative in the estate of Tracey Hall of Porter.

    Walker, who is the father of one of Hall's children, filed an appeal Nov. 18, 2003, which was 40 days after Alexa's ruling, according to the appellate court. The court said the appeal should have been filed within 30 days.

    Attorney Ken Allen, whose law firm filed the appeal on behalf of Walker, downplayed the ruling as a procedural decision, which had nothing to do with the substance of the arguments. He said he would like to see a decision based on the merits of the case.

    Posted by Marcia Oddi on Monday, October 18, 2004
    Posted to Indiana Decisions

    Indiana Law - Impact of state merit law on personnel changes

    This story from the AP today, titled "Displaced workers can bump others out of jobs: Muscatatuck employees allowed to claim seniority," shows how the state merit system impacts state workers beyond those in the downsized agency.

    Posted by Marcia Oddi on Monday, October 18, 2004
    Posted to Indiana Law

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

    Travis Boats v. Outboard Marine (ND Il.)

    Before BAUER, MANION, and KANNE, Circuit Judges.
    BAUER, Circuit Judge. Appellant-Creditor Travis Boats & Motors, Incorporated (Travis Boats), appeals from a bankruptcy court order that disallowed its claim in the Outboard Marine Corporation (OMC) Chapter 7 bankruptcy proceeding for failure to timely file a proof of claim. The Notice of Claims Bar Date required creditors to mail their proofs of claim to a designated post office box so as to be received by the OMC claims agent by November 15, 2002. Travis Boats faxed its proof of claim to counsel for the OMC bankruptcy trustee on November 15, 2002. The trustee objected to the claim as untimely, and the bankruptcy court sustained the objection, disallowing Travis Boats claim. The district court affirmed. We affirm the bankruptcy courts conclusion about the timeliness of Travis Boats claim, but we reverse the courts decision to disallow the claim. * * *

    Travis Boats final argument is one that will likely make no practical difference in this bankruptcy proceeding. Under 11 U.S.C. 726(a)(3), when a proof of claim for an unsecured debt is tardily filed in a Chapter 7 proceeding (with an exception not applicable here), it is subordinated to the timely-filed unsecured claims and the other claims listed in 11 U.S.C. 726(a)(1) and (2). In this case, the bankruptcy court disallowed Travis Boats untimely claim rather than subordinating it. * * * As a consequence, though it may make no practical difference in the end, we reverse the bankruptcy courts decision to disallow the claim, and we hold that Travis Boats untimely claim is subordinated to the timely-filed claims in accordance with 11 U.S.C. 726(a)(3).

    Miles, Robert v. State of Indiana (SD Ind., Richard L. Young, Judge)
    Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
    RIPPLE, Circuit Judge. On November 3, 1998, Robert Miles filed a complaint in which he alleged racial discrimination and retaliation by his employer, the Indiana State Police, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. The jury rendered a $50,000 verdict for Officer Miles on the retaliation claim. It returned a verdict for the State Police on the race discrimination claim. On March 30, 2001, Officer Miles filed a motion for equitable relief in which he sought a promotion or front pay, an injunction prohibiting the State Police from future retaliation and an order requiring the Indiana State Police to post a non-retaliation policy. The district court denied the requested injunctive relief and, instead, required that the State Police restructure Officer Miles current position to include supervisory responsibilities. Officer Miles now appeals the denial of his requested equitable relief. For the reasons set forth in this opinion, we affirm the judgment of the district court.

    Posted by Marcia Oddi on Monday, October 18, 2004
    Posted to Indiana Decisions

    Environment - Stories today

    "Environmental issues get little attention: Presidential campaign is dominated by Iraq war and struggling economy" is the headline to this story today in the Chicago Tribune.

    The Chesterton Tribune (my home town) had a story on last week's Porter County Plan Commission vote on "an open space ordinance requiring developers in the unincorporated areas to set aside at least 10 to 20 percent of the land in new subdivisions for green space, while allowing those eligible the right to retain the same housing density by building on smaller lots." A quote:

    The ordinance requires a minimum 10 percent open space in so-called cornfield developments, or those lacking natural features like woods or wetlands. Developers could count retention areas toward their open space, but the minimum set-aside in such cases rises to 15 percent. Developments with natural features must set aside 20 percent for open space, with the goal of preserving as much of the natural area as possible up to a maximum of 40 percent total. Developers setting aside at least 15 percent would qualify for an intensity bonus potentially allowing the same lot density while still setting aside the open space.
    See also this Oct. 14th entry for other coverage (3rd item).

    Posted by Marcia Oddi on Monday, October 18, 2004
    Posted to Environmental Issues

    Law - Another Chicago Tribune series on criminal law issues

    The Chicago Tribune had a three-part series last year on "The legacy of wrongful convictions." And a long-term series beginnng in 1999 dealt with criminal justice and the death penalty in Illinois. (Access all these stories from this Tribune index page.)

    Many of these stories involved forensic evidence. Yesterday the Tribune began a new series, placing "Forensics Under the Microscope." Here is the link to Sunday's article.

    Upcoming stories: Monday - Arson Myths; Tuesday - Bite Marks Doubted; Wednesday - Illinois Lab Troubles; Thursday - Scandals Nationwide.

    A related story Sunday involved finger-print evidence. Titled "Critics tell experts: Show us the science," the article reports:

    In exonerating scores of prisoners in recent years, new DNA testing has turned an unflattering light on a whole array of forensic evidence. Two of the oldest disciplines have responded to the challenge in dramatically different ways.

    The pressure persuaded researchers to test the validity of bullet-matching methods for the first time. But fingerprint examiners, who use perhaps the most common forensic tool, have resisted.

    Few doubt that fingerprints are unique, but that agreement has obscured a troubling reality: No research has been done to answer such questions as how much of the partial fingerprints found at crime scenes is needed to reliably declare a match.

    "The scientific basis may be there for the whole print, but is it there for that fragment found on the handle of the attache case or on the counter in the kitchen?" said American Academy of Forensic Sciences president Ronald Singer.

    "Those are the questions that need to be answered with objective scientific research, not subjective experience or anecdotal evidence."

    But the fingerprint community has balked. "Most of the fingerprint people are against that," Singer said, "because they're reluctant to open up themselves to the criticism that what they've been doing is somehow unscientific."

    Posted by Marcia Oddi on Monday, October 18, 2004
    Posted to General Law Related

    Sunday, October 17, 2004

    Indiana Law - Domestic violence

    The South Bend Tribune has an editorial today on domestic violence. It concludes:

    We won't review all the statistics here -- turn the page for that -- but suffice it to say that batterers skirt justice more often than not. It is small wonder that victims often lack faith that they will be safe if they file a complaint against an abusive husband or boyfriend.

    It is clear that judges and law enforcement officers need to be educated about domestic violence. Too often, the wrong decision is made and the victim is set up to be hurt yet again.

    In Indiana this year, 69 domestic violence victims have been killed. Many more survive their wounds, afraid to seek help.

    When the day comes that they can turn to the justice system with confidence, maybe we finally will have a week without violence.

    The editorial points to "today's Michiana Point of View on page B9. It's author, Linda Baeckle, executive director of the YWCA of St. Joseph County, has a great deal to teach all of us." The article is headlined "Domestic violence victims are denied justice far too often" and is available here. It begins:
    In St. Joseph County batterers can feel fairly certain that whether they hit, punch. slap, choke, bite, kick, or drag their "beloved" by her hair up the driveway, nothing will ever happen to them. This is true whether their children witness the brutality, and whether the batterers have performed these acts (or worse) previously. * * *

    Recently there was a case monitored by our volunteers in which a victim's car keys were grabbed out of her hand requiring four stitches. She was then dragged up her driveway by her hair. Her husband sat on her and choked her. The judge hearing the case was apparently confused by the fact that the victim tried to defend herself, and the defendant obtained a few scratches in the process. The judge continued the case and sent the couple home for 60-days to "work out their differences".

    Clearly education is needed to help our judges and our law enforcement officers determine who the primary aggressor is domestic violence cases. I would not suggest that this judge purposely jeopardized the safety of the young woman in this case with his unenlightened decision; however, statistics clearly demonstrate that once physical violence occurs in a relationship it is likely to escalate in severity and frequency. What next for this couple? Will she end up a statistic like the other 69 individuals in Indiana who lost their lives due to domestic violence this year?

    If St. Joseph County is not doing a great job of meting out justice for victims, how is it doing on offering protection? Of the 260 protective order hearings that we monitored, 103 victims received orders of protection. One hundred and forty-nine cases were dismissed, or the appeal for protection was denied. Reasons for denial were lack of sufficient evidence, the victim failing to appear in court in court or changing her mind (53 cases), or the victim filing in the wrong court. Those 103 victims who managed to obtain a protective order had been choked, hit, bruised, kicked, sexually assaulted, or had their jaw broken. The victims who had been threatened with violence, but did not show visible signs of injury were likely to be denied an order of protection, although the Indiana law defines domestic violence as "attempting to cause, threatening to cause, or causing physical harm to another family or household member, or placing a family or household member in fear of physical harm." Thus, threat of injury is sufficient grounds to warrant the granting of an order, and presumably might spare some of the victims the physical injury they are seeking to avoid.

    Sentencing and treatment for criminals who batter their wives and girlfriends, protection of those fearful for their lives -- this seems reasonable to ask.

    Posted by Marcia Oddi on Sunday, October 17, 2004
    Posted to Indiana Law

    Indiana Law - Wal-Mart employees class action suit featured

    "'Off the clock' work ticks off employees" is the headline to this story today in the Muncie Star-Press. Some quotes:

    Jim Todice of New Castle says Wal-Mart Stores is a good place to work if you keep track of your hours, don't let them take advantage of you and watch your back.

    He's one of 113,000 or so past and present Wal-Mart employees from Indiana who could benefit from a proposed class-action lawsuit accusing the company of widespread wage abuse.

    The lawsuit's allegations, which Wal-Mart denies, include failure to pay for all the time employees work, failure to permit employees to take breaks, and understaffing stores.

    Wal-Mart is facing 39 similar lawsuits in other states. * * *

    The lawsuit brought on behalf of Indiana employees was filed in Marion County Superior Court 5 in the summer of 2000. Judge Gary Miller certified the lawsuit as a class action. Wal-Mart appealed to the Indiana Court of Appeals, which reversed Miller but said the lawsuit could be sustained if the class were re-defined. The plaintiffs are appealing that ruling to the Indiana Supreme Court.

    Wal-Mart attorneys have been "pretty successful" in blocking class certification of lawsuits accusing the company of violating labor laws, said Indianapolis attorney James Knauer, who represents numerous Indiana Wal-Mart workers.

    Knauer claims the evidence is overwhelming that Wal-Mart corporate policy causes employees to work off the clock. * * *

    Only one of the 40 labor lawsuits has gone to trial - in Oregon. While a jury in that "mass-action" lawsuit found that more than 80 current and former employees had been forced to work unpaid overtime, "we feel the evidence supported our position that this was not systemic and widespread," Wal-Mart spokesperson Christi Gallagher said in an interview.

    "These allegations go against everything Wal-Mart stands for," she added. "Our three basic beliefs that (Wal-Mart founder) Mr. Sam (Walton) started are respect for the individual, service to our customers, and strive for excellence. And our company policy is to pay associates for every minute they work. Any manager who requires or tolerates violation of the policy would be (disciplined)." * * *

    Court records show that at least three dozen residents from Muncie, Anderson, New Castle, Farmland, Winchester, Albany, Richmond, Lewisville, Knightstown, Alexandria, and Lewisville have contacted the plaintiffs' lawyers about becoming members of the class action.

    The story also includes a list of other litigation against Wal-Mart, plus a link to the Indiana Wal-Mart Class Action Web Site. The plaintiffs' attorneys are listed as Kroger, Gardis & Regas, LLP; the Wal-Mart attorneys are Baker & Daniels. Some legal documents are available here.

    The Court of Appeals decision, Wal-Mart Stores, Inc., et al. v. Berdita L. Bailey & Sue Rhodus (5/27/04 IndCtApp) is available via this Indiana Law Blog entry (2nd case), which also includes links to other articles on overtime suits.

    The docket in the case indicates:

    9/02/04 APPELLEE'S PETITION FOR TRANSFER (9) WORD COUNT CERTIFICATE (2) PROOF OF SERVICE (2) MAIL LB
    9/27/04 APPELLANT'S BRIEF IN RESPONSE TO TRANSFER (9) PROOF OF SERVICE (2) MAIL LS
    10/11/04 APPELLEE'S REPLY BRIEF IN SUPPORT OF PETITION TO TRANSFER (9)
    CERTIFICATE OF WORD COUNT (2) PROOF OF SERVICE (2) MAIL RC
    10/12/04 ***********TRANSMITTED ON TRANSFER ***********RS
    10/12/04 IN THREE (3) BOXES

    Posted by Marcia Oddi on Sunday, October 17, 2004
    Posted to Indiana Law

    Indiana Law - More on proposed constitutional amendment

    The Mooresville/Decatur Times had a story yesterday on the proposed constitutional amendment re taxation. Some quotes:

    Indiana Sen. Richard Bray (R-Martinsville) explained that after the Indiana Supreme Court ruling that changed Indianas property tax assessment system to the current fair market value system, along with the General Assembly opting to give counties the power to abolish inventory tax, the Constitution had to change to support those changes in law.

    Bray explained that presently, Indianas constitution directs the General Assembly to tax property, including those things held for sale, so abolishing the property tax is potentially unconstitutional, since the idea of fair market value is to be fair.

    The State Supreme Court said it has to be even and uniform, and it isnt, Bray explained. * * *

    There is a question as to the constitutionality of the Homestead exemption, the elimination of the inventory tax or the assessment of farmland for less than market value.

    Because of the Indiana Supreme Courts ruling, Im not sure we can give a Homestead Credit, because thats potentially unequal, Bray explained.

    Bray said that by amending the Constitution, it would explicitly give Indianas legislature the power to make those changes, even if some have not yet been challenged in court, like the assessment of farmland at a much lower rate that open ground that is being developed for homes or commercial value.

    So, are you going to say every farmer that is close to an urban area should have to pay subdivision (tax) prices? That could come up, he said. * * *

    Bray said that other challenges could also include tax abatements, a popular economic development tool with communities like Mooresville, that has been used to draw large companies like TOA, USA, to the area.

    That (abatements) probably doesnt fit the constitutional test either, he said.

    Abatements allow businesses to pay less tax on their building and equipment initially, gradually paying more and more each year until, at the end of the abatement, typically 6-10 years, they pay the full tax rate.

    And eliminating the inventory tax means large warehouse operations, several of which are located in the Plainfield area, would be more inclined to move to the state.

    Its an incentive (for businesses) to move into the area, Bray said. Without (the changes) that might be unconstitutional.

    Posted by Marcia Oddi on Sunday, October 17, 2004
    Posted to Indiana Law

    Environment - Barrel and drum recycler allegedly abandons site

    The Fort Wayne Journal Gazette reported yesterday, in a story headlined "Thousands of industrial barrels found: EPA cleans up abandoned firm," that:

    A NIPSCO worker trying to remove a gas meter for non-payment discovered a mountain of rusting industrial barrels filling the site of a defunct recycling firm.

    Formed in 1959, Hassan Barrel Co. cleaned out used barrels so they could be reused. But the company apparently closed abruptly last summer, leaving workers locked out and the site covered with an estimated 10,000 barrels, with as many as 1,000 of them with industrial waste still inside.

    The facility, on Summer Street off Wayne Trace, has been declared a superfund site and is getting an emergency cleanup by U.S. Environmental Protection Agency contractors.

    Bill Simes, EPA Region Vs on-scene coordinator, said there is no immediate public health threat from the barrels they appear to have been used for oil and paint but officials do fear what could happen if there were to be a fire. That would send chemicals onto the ground and into the air, he said.

    When state and federal environmental officials arrived at the site, it was unsecured. Now, they have cleared the fence line, locked gates and posted security guards. Tuesday, they started removing empty barrels, and by Friday afternoon had taken away about 1,000. Thursday, they conducted an informational meeting for neighbors.

    The story includes a map and photo.

    Posted by Marcia Oddi on Sunday, October 17, 2004
    Posted to Environmental Issues

    Indiana Law - Gary paper opines again on proposed constitutional amendment

    The Gary Post-Tribune, which wrote on Oct. 11 about all three proposed constitutional amendment, opines again today, here, on one of them, which it states is "of particular importance to Northwest Indiana". Some quotes:

    The question asks whether the state constitution should be amended to allow the General Assembly to make certain property exempt from property taxes, including (1) a homeowners primary residence, (2) personal property used to produce income, and (3) inventory?

    We urge voters to support the amendment.

    The primary reason is that the amendment gives the General Assembly flexibility in dealing with taxes, particularly property taxes. The constitution currently requires in terms of property taxes that homes, businesses and inventory be taxed at the same rate.

    Without the amendment, the state would be vulnerable to legal challenges when existing legislation to eliminate the inventory tax in 2006, payable 2007, takes affect, said Rep. John Frenz, D-Vincennes, the sponsor of the amendment.

    The elimination of the inventory tax is paramount to Northwest Indianas drive for economic development. Although this corner of the state has an elaborate transportation network with the Gary/Chicago International Airport as the hub it cannot attract the necessary warehousing because of the inventory tax.

    Also important to this area is the impact the amendment could have on any future circuit breakers the General Assembly might impose on property taxes. The amendment would allow circuit breakers to be phased in.

    The amendment gives the Legislature considerable freedom in massaging property-tax code. Given what weve just been through with reassessment, legislators need that flexibility.

    Presumably, the amendment, if approved by the voters in the Nov. 2 general election, would take effect immediately, allowing an opportunity for major tax overhaul in the upcoming (2005) legislative session. Oddly, I have been unable to locate any of the constitutional amendments on the General Assembly website.

    Posted by Marcia Oddi on Sunday, October 17, 2004
    Posted to Indiana Law

    Saturday, October 16, 2004

    Environment - 2004 Indiana Environmental Statutes

    In answer to recent inquiries, I still have a number of copies of the handy, soft cover, 546-page 2004 Indiana Environmental Statutes available for purchase - check here for information.

    Posted by Marcia Oddi on Saturday, October 16, 2004
    Posted to Environmental Issues

    Indiana Law - There are four public questions or referendums on Indiana's election ballot this year

    "There are four public questions or referendums on Indiana's election ballot this year." is how this editorial today in the Elkhart Truth begins. It covers both the three amendments to the state Constitution posed to the voters (also covered in this entry last week, quoting a Gary Post-Tribune editorial), and the question of whether Judge John T. Sharpnack shall be retained in office. Some quotes from the Truth:

    They aren't the most talked about issues, but at least one could have a profound impact on your property taxes. * * *

    Public Question 1 is the most far-reaching of the referendums. It asks whether the state Constitution should be amended "to allow the General Assembly to make certain property exempt from property taxes, including (1) a homeowner's primary residence; (2) personal property used to produce income; and (3) inventory?"

    Apparently members of the Legislature were told by attorneys that the exemptions they currently allow for property taxes, including the homestead credit and some business personal property exemptions, as well as the elimination of the inventory tax, could be constitutionally challenged.

    So what does that mean? If someone is angry they didn't get a property tax exemption, they could go to court and eventually have all of the exemptions overturned.

    The exemptions are designed to ease the property tax burden. Without them, your property taxes would skyrocket and there would be no relief.

    Answering "yes," or voting in favor of Public Question 1, will give the Legislature the constitutional authority to give exemptions. That's a good thing and we urge voters to approve the question.

    The two other questions have no significant impact on the average person: one establishes a uniform date for the beginning of terms of office of the county clerk, auditor, recorder, treasurer, sheriff, coroner and surveyor. The second sets up the line of succession if the governor and lieutenant governor cannot fulfill their terms and sets a deadline for the General Assembly to meet in such cases. The line of succession would be the speaker of the House, the president pro tem of the Senate, the state treasurer, state auditor, secretary of state and the state school superintendent.

    Finally, there is one question about retention of judges: "Shall Judge John T. Sharpnack be retained in office?" Sharpnack represents the Fifth District on the Indiana Court of Appeals. The district includes Elkhart, LaGrange and St. Joseph counties.

    It's difficult to make a recommendation on judicial retention questions because judges can't campaign for the seat. All we can tell you his Sharpnack's background.

    He is from Columbus and has been a member of the court since 1991. He is a graduate of the University of Cincinnati Colleges of Arts and Sciences and Law, where he was editor-in-chief of the law review. Sharpnack was in the U.S. Army, Order of the Coif., from 1955 to 1957. He worked in the antitrust division of the U.S. Department of Justice from 1960-1963. He was in private practice in Columbus from 1963-1990. He served as chief judge from 1992-2001.

    One way to look at some of the opinions Judge Sharpnack has written in 2004 would be to put the following, in quotes, in the search box in the right-hand column: "Sharpnack, Judge". For statistics, see this "Annual Report of the Indiana Court of Appeals, 2003."

    [Update 10/17/04] An alert reader has pointed out the following:

    [I]t seems to me odd to say, although technically true, that Sharpnack's district, the fifth, "includes Elkhart, LaGrange and St. Joseph counties." (Emphasis added.) I understand that's where most of the paper's readership is, but the Fifth District "includes" the entire state.
    The reader cites to IC 33-25-1-2(5), which indeed reads:
    Sec. 2. Indiana is divided into five (5) geographic districts, which shall be designated as the "court of appeals - First District; Second District; Third District; Fourth District; and Fifth District" as follows:
    (1) First District: Bartholomew, Boone, Brown, Clark, Clay, Crawford, Daviess, Dearborn, Decatur, Dubois, Fayette, Floyd, Fountain, Franklin, Gibson, Greene, Hancock, Harrison, Hendricks, Henry, Jackson, Jefferson, Jennings, Johnson, Knox, Lawrence, Martin, Monroe, Montgomery, Morgan, Ohio, Orange, Owen, Parke, Perry, Pike, Posey, Putnam, Randolph, Ripley, Rush, Scott, Shelby, Spencer, Sullivan, Switzerland, Union, Vanderburgh, Vermillion, Vigo, Warrick, Washington, and Wayne.
    (2) Second District: Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells, and White.
    (3) Third District: Allen, Benton, DeKalb, Elkhart, Fulton, Jasper, Kosciusko, LaGrange, Lake, LaPorte, Marshall, Newton, Noble, Porter, Pulaski, St. Joseph, Starke, Steuben, Warren, and Whitley.
    (4) The entire state constitutes the Fourth District.
    (5) The entire state constitutes the Fifth District.
    As added by P.L.98-2004, SEC.4.
    Thanks to reader Michael K. Ausbrook.

    Posted by Marcia Oddi on Saturday, October 16, 2004
    Posted to Indiana Law

    Law - New York's highest court ousts local judge

    "Finding Bail 'Shockingly High,' Court Tosses Out Judge" was the headline to a story earlier this week in the NY Times. Some quotes:

    In most courtrooms, even the most notorious defendant can count on a few basic rights. In Judge Henry R. Bauer's courtroom in Troy, N.Y., however, that was not always possible, the state's highest court found yesterday.

    Time and again, Judge Bauer, of Troy City Court, set bail for minor offenses that the State Court of Appeals found "shockingly high," jailing those who could not make bail even when the underlying offense would not draw jail time. He neglected to tell defendants that they had the right to a lawyer, the court said, and he twice convicted people without a trial or a guilty plea. * * *

    In one case of compounded judicial misconduct, the Court of Appeals found, Judge Bauer set $25,000 bail for a man charged with bicycling on the sidewalk at night without lights, an offense that calls for a maximum penalty of a $100 fine. When the defendant could not make bail, the judge jailed him for seven days until he finally pleaded guilty. At no time did Judge Bauer tell the man that he had the right to a lawyer.

    The court's ruling yesterday completed a four-year process begun after a man charged with disorderly conduct complained to the State Commission on Judicial Conduct about the $50,000 bail that Judge Bauer had set. The commission eventually charged the judge with 51 counts of wrongdoing. In an unusual move, the judge asked that his hearing before the commission in January be opened to the public. After the hearing, the commission recommended his removal, and Judge Bauer appealed to the Court of Appeals.

    While Judge Bauer has been suspended since May pending the outcome of his case, his standing in Troy, a city of 50,000 just north of Albany where he served since 1994, did not seem to suffer. In June the city's police union awarded him the Golden Shield, its highest honor for nonofficers. And last month Judge Bauer, a Republican, won a hotly contested primary for three other lines on the ballot against his Democratic opponent. He is now ineligible to run for re-election in November.

    [Update 10/18/04] For another take, see this story from the New York Law Journal.

    Posted by Marcia Oddi on Saturday, October 16, 2004
    Posted to General Law Related

    Indiana Decisions - Indiana casinos' tax bill is huge

    Lesley Stedman Weidenbener of the Louisville Courier-Journal reports again today (see Oct. 2 entry, along with links to the recent Aztar and Trump decisions; see also this entry posted after the April Tax Court decision in Aztar) on the impact of recent court rulings. Some quotes:

    INDIANAPOLIS Indiana's 10 casinos owe the state about $130million in back taxes, penalties and interest for tax years 1995 through 2002, according to an audit the Indiana Department of Revenue finished this week.

    The casinos also could owe an additional $30million annually starting this year, said Cathy Henninger, a spokeswoman for the revenue department.

    The total bill appears to be less than the Casino Association of Indiana estimated after the Indiana Tax Court ruled earlier this year that the boats had been making improper deductions from their taxable income.

    But casino officials say the amount combined with other recent tax changes could be enough to stifle investment in the state's casino properties.

    "It's a substantial amount of money," said Mike Smith, executive director of the casino association. "We are already a relatively high-taxing state. Once you include our local-share agreements, we pay more in taxes than the 294 casinos pay in Nevada." * * *

    Smith said yesterday that the casino association's members haven't decided whether to ask lawmakers to change the law and allow the casinos to deduct what they pay in wagering taxes from their taxable income. But he said he's confident the result of the ruling is not what lawmakers originally intended when they wrote casino tax laws.

    "I'm hopeful this is an inadvertent and unplanned event," said Smith, a former member of the Indiana House. "I don't think the legislature's intent would have been to tax a tax."

    Posted by Marcia Oddi on Saturday, October 16, 2004
    Posted to Indiana Decisions

    Friday, October 15, 2004

    Indiana Decisions - 7th Circuit posts five today

    Tuffendsam, Barbara v. Dearborn Bd Health (SD Ind., Judge David F. Hamilton)

    Before POSNER, KANNE, and EVANS, Circuit Judges.
    POSNER, Circuit Judge. The plaintiff in this civil rights suit against a county health board and its members bought a house that had a septic tank rather than being connected to the municipal sewer system. Concerned that the septic tank might no longer be working properly, she negotiated a reduction in the price of the house that would help her defray the expense of her share of the cost of building a line that would connect her and her neighbors houses to the municipal sewer system.

    Unbeknownst to her, more than two years earlier the county health board had discovered that the septic tank was indeed not working properlythat sewage was leaking from itand had ordered the then-owner of the house to abate the sewage discharge within 90 days. He failed to do so and the board issued another, similar order, giving him another 30 days to comply. He failed to comply and the board failed to follow up. But after the plaintiff bought the house, the board finally woke up, and it began legal proceedings against her to get the problem corrected. Her neighbors refused to contribute to the cost of a sewer line and the plaintiff was unwilling to pay the entire cost ($40,000) herself. * * * The suit charges that by failing to get the previous owner to correct the problem and by failing to pursue the neighbors with the same vigor that it was pursuing her, the board deprived her of property without due process of law and also denied her the equal protection of the laws, all in violation of the Fourteenth Amendment. She seeks damages plus an order that the board buy her house from her and, presumably in the alternative, enforce the sanitation laws against the neighbors so that theyll be induced to contribute to the cost of building a sewer line. * * *

    The plaintiff in this case is a victim of uneven enforcement, nothing more, and as we said in Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985), The Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all. Otherwise few speeders would have to pay traffic tickets. Selective, incomplete enforcement of the law is the norm in this country. AFFIRMED.

    Pease, Christopher v. Production Work 707 (ND Ill.)
    Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
    EASTERBROOK, Circuit Judge. Local 707 of the Production Workers Union and Local 150 of the Operating Engineers Union have been engaged in a long-running battle for the right to represent truck drivers and associated workers at Randall Industries. * * * In this litigation four employees (with the aid of counsel furnished by Local 150) contend that Randall failed to carry out its collective bargaining agreement with Local 707. To succeed in such an action, the employees first must show that Local 707 violated its duty to represent them. * * * Affirmed.
    USA v. Henningsen, Paul (ED Wis.)
    Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
    BAUER, Circuit Judge. Defendant-Appellant Paul A. Henningsen appeals his convictions on four counts of mail fraud under 18 U.S.C. 1341. Henningsen argues that there was insufficient evidence to support the convictions and challenges the factual findings made by the district court judge during sentencing. We affirm the convictions, but vacate the sentence and remand the case to the district court for resentencing. The mandate of this court is stayed pending the Supreme Courts decision in United States v. Booker. * * *

    The Supreme Court has granted certiorari in Booker, whereupon in the coming weeks it will determine the application of Blakely to the federal sentencing guidelines. Therefore, we will stay our mandate until Booker is decided. Within fourteen days of the Supreme Courts decision in Booker, both parties may submit a memorandum setting forth their views on the application of that decision to this case.

    Conclusion. For the foregoing reasons, we AFFIRM the judgment of the district court on the merits, and VACATE the sentence and REMAND to the district court for resentencing. This courts mandate is stayed pending the Supreme Courts decision in Booker.

    Griffin, Phyllis v. Roupas, Elaine (ND Ill.)
    Before POSNER, RIPPLE, and WOOD, Circuit Judges.
    POSNER, Circuit Judge. The plaintiffs, who appeal from the grant of a motion by the defendants (the members of the Illinois State Board of Elections) to dismiss the complaint for failure to state a claim, are working mothers who contend that because it is a hardship for them to vote in person on election day, the U.S. Constitution requires Illinois to allow them to vote by absentee ballot. Illinois allows voting by absentee ballot only if the voter either expects to be absent [on election day] from the county in which he is a qualified elector or is unable to vote in person because of physical incapacity, religious observance, residing outside his precinct for attendance at a college or university, or having to perform specified official dutieselection judge in another precinct, certain other election duties, or serving as a sequestered juror. * * * The suit was correctly dismissed. AFFIRMED.
    Bricklayers IL 21 v. Banner Restoration - denial of appellant's motion to stay the mandate

    Posted by Marcia Oddi on Friday, October 15, 2004
    Posted to Indiana Decisions

    Indiana Decisions - No transfer list for week ending October 15, 2004

    There is no new transfer list for this week ending October 15, 2004.

    Posted by Marcia Oddi on Friday, October 15, 2004
    Posted to Indiana Transfer Lists

    Environment - Odor in New York City too!

    The ILB has pointed to a number of stories about odor problems in Indiana, from both farms and industrial plants. The most recent is this AP story published yesterday that begins:

    ANGOLA, Ind. -- A state inspection found that a factory suspected as the source of a smell that has been lingering over the city has not committed any air quality violations.

    That finding released Wednesday, however, does not mean the odor that has bothered residents since August is not coming from the General Products auto parts plant, said Amy Hartsock, a spokeswoman for the Indiana Department of Environmental Management.

    "We believe the cutting oil used at the facility is a source of odor," Hartsock said. "But all we look for is compliance. We address air violations; things that could impact air quality."

    New York City has odor problems too, as illustrated by this story yesterday in the NY Times titled "No Thanks Given in Bronx for a Smelly Turkey Plant." Some quotes:
    The smell wakes them at night. It sits in their clothes, their hair, the vents of their air-conditioning units.

    It is the smell of smoked turkey, wafting day and night from the LSK Smoked Turkey Products plant, which moved into the quiet Parkchester section of the Bronx two years ago. These days, it is hard to find a resident who will still cook the bird, even on Thanksgiving.

    But relief may soon come. Mayor Michael R. Bloomberg announced yesterday that the city would move to shut down the plant, at 1575 Bronx River Avenue, a few blocks southeast of Bronx Park. The news follows months of agitation by local residents, who have grown so desperate that they have threatened to stand in front of the company's turkey-packed trucks to stop them from moving. * * *

    The company, which cooks and packages pork parts, turkey parts and whole turkeys, moved to the Bronx in May 2002 after a long and fraught history with its former neighbors in Williamsburg, Brooklyn. The city has logged more than 60 complaints from Parkchester residents since August 2003, and began citing the company for air pollution violations the next month.

    To date, LSK Smoked Turkey Products has paid more than $3,000 in fines for eight violations. The most recent citation, costing an additional $2,000, was issued on Monday, about a month after the company installed an air filtration system intended to curb the smell. It has also been cited for letting grease spill into the sewers. * * *

    As a next step, on Oct. 26 city officials will seek permission from a judge for the city's Environmental Control Board to shut down the company's operations, said Charles G. Sturcken, a spokesman for the Department of Environmental Protection. * * *

    The factory's operation is legal because it is in an industrial zone, Mr. Sturcken said. It is the odorous steam that violates the city's Air Pollution Control Code, he said. The code prohibits persistent and troublesome smells that cause discomfort.

    Posted by Marcia Oddi on Friday, October 15, 2004
    Posted to Environmental Issues

    Thursday, October 14, 2004

    Indiana Decisions - Two posted by Supreme Court today

    In the Matter of the Honorable Joan Kouros, Judge of the Lake Superior Court, Criminal Division 3 (10/12/04 IndSCt) [Judicial Disciplinary Action]
    Per Curiam.

    The Indiana Commission on Judicial Qualifications (Commission) has brought a disciplinary action in this Court under Article 7, Section 4 of the Indiana Constitution against Judge Joan Kouros, Judge of the Lake Superior Court, Criminal Division 3. It has asked for her removal.

    The evidence demonstrates that over a substantial period of time, involving a large number of litigants, Judge Kouros has proved either unable or unwilling to issue timely and documented decisions in the cases assigned to her, causing real-life consequences for those whose matters are in her hands. Moreover, her representations to us about measures taken to conduct the courts business in accord with acceptable standards have proven unreliable. We therefore conclude that removal from office is the appropriate outcome. * * *

    All Justices concur.

    DFS Secured Health Care Receivables Trust v. Caregivers Great Lakes, Inc., et al. (Published order accepting certified question; Dated Oct. __, 2004)
    The United States Court of Appeals for the Seventh Circuit has certified questions of Indiana state law for this Courts consideration pursuant to Indiana Appellate Rule 64. The questions, as framed by the federal court, are:
    1. Can an officer or director of a first transferee under the IUFTA [Indiana Uniform Fraudulent Transfer Act, Indiana Code 32-18-2-1 et seq.] 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?

    After consideration by each member of the Court, the certified question is accepted pursuant to Appellate Rule 64. [Procedural details follow]

    Posted by Marcia Oddi on Thursday, October 14, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Nine posted by Court of Appeals today

    [Note: Some of the nine cases below are from a week ago, Oct. 7th. Others are from earlier this week. Generally the Court of Appeals has posted its opinions on the day of issuance.]

    Abel A. Alves v. State of Indiana (10/12/04 IndCtApp) [Criminal Law & Procedure]
    May, Judge

    This case addresses the effect of a No Trespassing sign on private property. Abel A. Alves appeals his conviction after a jury trial of trespass, a Class A misdemeanor. See footnote He raises one issue: whether the evidence was sufficient to sustain his conviction. We affirm.

    On October 12, 2002, Robert Adams saw a green Honda parked off the road beside property located on County Road 650 South in Delaware County, Indiana. Adams knew the owners of the property, William and Kay Whitehead, and did not recognize the Honda. Adams pulled his vehicle off the road facing the Honda. He saw Carol Blakney at the wheel of the Honda, and Alves standing on a gate about 30 to 40 feet from the edge of the road. The gate had a black and yellow No Trespassing sign attached to it.

    Adams asked Alves and Blakney their names and wrote down their license number. Neither Alves nor Blakney had permission from the Whiteheads to enter their property. * * *

    Alves argues the evidence is insufficient to show he knowingly entered the Whiteheads property and that he had been denied entry by the posting of a notice at the main entrance of the property.

    The Whiteheads property at 650 South included a barn or other type of building and a silo set back from the road. A gate and fence separated those structures from the road. The gate was about 30 to 40 feet from the road and had a No Trespassing sign attached to it. Adams testified Alves was standing on the gate.

    There appears to be no Indiana case law addressing the point on a persons property at which a No Trespassing sign takes effect. Ind. Code 35-43-2-2 provides a person may be denied entry for trespass purposes by means of posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public.

    While there was no evidence Alves had opened or climbed over the gate and walked past the No Trespassing sign, the jury could have reasonably inferred that at least part of his body entered the airspace above the Whiteheads property. As a result, there was sufficient evidence to sustain his conviction of trespass. Affirmed.
    BAILEY, J., and SHARPNACK, J., concur.

    [Note: I wrote about this quite remarkable decision earlier today here, in an entry quoting from a story today in the Muncie Star-Press headlined "Hog-farm trespass conviction upheld." At the time I assumed it was a Not for Publication decision; but the opinion, dated Oct. 12, has just today been posted on the Court's website.]

    State of Indiana v. Dow Wilson (10/12/04 IndCtApp) [Criminal Law & Procedure]
    May, Judge

    Dow Wilson was charged with two counts of welfare fraud as Class C felonies, one count of welfare fraud as a Class D felony, and one count of theft as a Class D felony. The State brings this interlocutory appeal from the trial courts decision to exclude the testimony of Wilsons spouse, Heidi Davie-Wilson (Heidi). The trial court certified one question for appeal. However, we are unable to address that question because the State waived appellate review of the exclusion of Heidis testimony.
    We affirm and remand. * * *

    The State did not provide an adequate offer of proof at trial and thereby waived its argument regarding the trial courts exclusion of Heidis testimony.
    Affirmed and remanded.
    SULLIVAN, J., and VAIDIK, J., concur.

    Jeff Combs v. Rodney & Greg Tolle (10/12/04 IndCtApp) [Real estate]
    Sharpnack, Judge
    Jeff Combs appeals the trial courts grant of a petition for a tax deed to Rodney Tolle and Greg Tolle (collectively, the Tolles). Combs raises two issues, which we consolidate and restate as whether the trial courts order granting the Tolles petition for a tax deed after finding that Combs received the proper statutory notices is clearly erroneous. We affirm.
    Henry L. Kellems v. State of Indiana (10/7/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
    Najam, Judge
    Henry Luke Kellems, Jr. appeals his conviction for Operating a Vehicle as an Habitual Traffic Offender, as a Class D felony, and the trial courts order finding him in violation of his probation. Kellems raises a single dispositive issue, namely, whether a callers tip established reasonable suspicion to effectuate a traffic stop under the Fourth Amendment to the United States Constitution. We reverse. * * *

    Given these circumstances, we conclude that the tip did not contain the requisite indicia of reliability. As a result, Kellems motion to suppress should have been granted and all evidence discovered following the stop, including evidence of his status as a habitual traffic violator, should have been suppressed at his criminal trial. As such, the evidence is insufficient to support his conviction, and we reverse the trial courts judgment. Further, because the State did not plead or prove any other probation violation, we reverse the trial courts order revoking Kellems probation. Reversed.
    SULLIVAN, J., and BARNES, J., concur.

    William H. Aiken v. Robyn S. Stanley (10/7/04 IndCtApp) [Protection Order]
    Najam, Judge
    In February 2004, Robyn Stanley petitioned for and received an Ex Parte Order of Protection against William Aiken. Following a hearing in March 2004, the trial court issued a permanent Order of Protection against Aiken which provided, among other things, that Aiken have no contact with Stanley for one year. Aiken appeals that judgment and presents a single issue for review: whether Stanley presented sufficient evidence to support the trial courts order of protection under the Indiana Civil Protection Order Act (CPOA), Indiana Code Section 34-26-5-1 through 19. We affirm. * * *

    In sum, Aiken has not established prima facie error, and we conclude that the evidence supports the trial courts decision to issue an order of protection against him. Affirmed.
    SULLIVAN, J., and BARNES, J., concur.

    Rogers Group, Inc. v. Diamond Builders, LLC (10/07/04 IndCtApp) [Contracts]
    Bailey, Judge
    * * * For the foregoing reasons, the evidence does not support the trial courts finding that the only remedy is to redo the parking lot, and thus, its conclusion that Diamond should recover damages for repaving the entire parking lot is clearly erroneous. Further, the trial court erred by failing to award Rogers its attorney fees and interest. We remand to the trial court to conduct further proceedings consistent with this opinion. Reversed and remanded.
    SHARPNACK, J., and MAY, J., concur.
    Brandon Holman v. State of Indiana (10/14/04 IndCtApp) [Criminal Law & Procedure]
    Vaidik, Judge
    Brandon Holman appeals his conviction for residential entry. Based on the totality of the circumstances, we conclude that the seventeen-year-old minor in this case did not have the authority to give consent to her boyfriend to enter the house in which she lived with her parents. Furthermore, Holmans belief that the minor had the authority to give consent was not reasonable. We affirm his conviction. * * *

    Holman knew that he was not welcome at the Marcadl residence. For the vast majority of his visits to the Marcadl residence, Holman came in the middle of the night and sat outside Ericas bedroom window. And on the two occasions that Holman actually entered the Marcadl residence, the only time he used the front door was when the Marcadls were not home. Under these circumstances, we conclude that Holmans belief that Erica had the authority to give him consent was not reasonable. Accordingly, we affirm Holmans conviction for residential entry. Affirmed.
    RILEY, J., concurs.
    CRONE, J., dissents with separate opinion.
    In this case, the person conferring the consent to enter was a resident of the home. The consent was limited to that persons area of anticipated control and privacy. The consent was for entry for a legitimate purpose, that is, retrieval of Holmess property. Eric Marcadl testified, I met [Holmes] once and this was the second time that I seen him coming out of the window. Id. at 11. Marcadl never told Holmes, or Erica, that he could not enter the Marcadl residence. Marcadls major objection to Holmes was that he was dating his daughter. I believe it is reasonable to assume that a seventeen-year-old has authority to consent to entry, for an otherwise legitimate purpose, to an area of her residence over which she maintains privacy and control.

    In sum, I believe that Holmes properly raised consent as a defense to the residential entry charge and that the State failed to disprove that defense beyond a reasonable doubt. Consequently, I would reverse his conviction.

    Ronald D. Sander v. State of Indiana (10/14/04 IndCtApp) [Criminal Law & Procedure]
    Friedlander, Judge
    Ronald D. Sander, pro se, appeals a ruling regarding credit time in conjunction with the sentence he received following his conviction of Operating a Vehicle After a Lifetime Suspension, a class C felony. Sander presents the following restated issue for review: Did the trial court err in denying Sanders motion for education credit time, pursuant to [IC] 35-50-6-3.3? We affirm. * * *

    In the instant case, while he was serving the sentence imposed for his conviction for operating a vehicle while his license was suspended for life, Sander allegedly received a high school diploma or its equivalent. Thus, his application for credit time pursuant to [IC] 35-50-6-3.3 should have been directed to the DOC. The trial court, not possessing all of the facts necessary to rule on Sanders petition, did not err in denying the motion for educational credit time. Judgment affirmed.
    BAKER, J., and DARDEN, J., concur.

    Tabor & Autoxchange.com, Inc. v. Dreyer & Reinbold, Inc. (9/15/04 IndCtApp) [Agency; Torts]
    [Note: Issued as NFP, now published pursuant to appellee's motion]

    Posted by Marcia Oddi on Thursday, October 14, 2004
    Posted to Indiana Courts

    Indiana Decisions - Four posted by Tax Court today

    K.P. Oil, Inc. v. Madison Township Assessor (10/13/04 IndTaxCt) [Real property assessment]
    Fisher, Judge

    Petitioner K.P. Oil, Inc. (K.P. Oil) appeals the Indiana Board of Tax Reviews (Indiana Board) final determination valuing its real property for the 1997 and 1998 assessment years. Although K.P. Oil raises other issues on appeal, the dispositive issue in this case is whether the Jefferson County Property Tax Assessment Board of Appeals (PTABOA) erred in issuing an interim reassessment on K.P. Oils property in the absence of any changes to the property. * * *

    Jefferson County plat records show that the subject property has been platted since 1958. (See Cert. Admin. R. at 16.) As such, it was platted at the time of the 1995 general reassessment and has remained unchanged in that respect. Furthermore, the Assessor has not pointed to any other changes in the property that would warrant the issuance of an interim reassessment. Accordingly, because there have been no changes to the property since the 1995 general reassessment, the value assigned during that assessment should carry forward until the next general reassessment. The Indiana Board therefore erred in affirming the PTABOAs interim reassessment.

    CONCLUSION. For the foregoing reasons, the Indiana Boards 2002 final determination is REVERSED. The Indiana Board shall, on remand, instruct the local assessing officials to reassess the property using the rate of $24,750.00 per acre.

    Gerald and Margaret Fuchs v. Madison Township Assessor (10/13/04 IndTaxCt - NFP) [Real property assessment]
    Fisher, Judge
    Petitioners Gerald and Margaret Fuchs (the Fuchs) appeal the Indiana Board of Tax Reviews (Indiana Board) final determination valuing their real property for the 1997, 1998, and 1999 tax years. Although the Fuchs raise other issues on appeal, the dispositive issue in this case is whether the Jefferson County Property Tax Assessment Board of Appeals (PTABOA) erred in issuing an interim reassessment on the Fuchs property in the absence of any changes to the property. * * *

    Accordingly, because there have been no changes to the property since the 1995 general reassessment, the value assigned during that assessment should carry forward until the next general reassessment. The Indiana Board therefore erred in affirming the PTABOAs interim reassessment.

    CONCLUSION. For the foregoing reasons, the Indiana Boards 2002 final determination is REVERSED. The Indiana Board shall, on remand, instruct the local assessing officials to reassess the property using the rate of $24,750.00 per acre.

    TKC Properties, LLC v. Madison Township Assessor (10/13/04 IndTaxCt - NFP) [Real property assessment]
    Fisher, Judge
    The Petitioner, TKC Properties LLC (TKC), appeals the final determination of the Indiana Board of Tax Review (Indiana Board) valuing its real property for the 1999 assessment year. Although TKC raises other issues on appeal, the dispositive issue in this case is whether the Jefferson County Property Tax Assessment Board of Appeals (PTABOA) erred in issuing an interim reassessment on TKCs property in the absence of any changes to the property. * * *

    Jefferson County plat records show that the subject property has been platted since 1958. As such, it was platted at the time of the 1995 general reassessment and has remained unchanged in that respect. See footnote Furthermore, the Assessor has not pointed to any other changes in the property that would warrant the issuance of an interim reassessment. Accordingly, because there have been no changes to the property since the 1995 general reassessment, the value assigned during that assessment should carry forward until the next general reassessment. The Indiana Board therefore erred in affirming the PTABOAs interim reassessment.

    CONCLUSION. For the foregoing reasons, the Indiana Boards 2002 final determination is REVERSED. The Indiana Board shall, on remand, instruct the local assessing officials to reassess the property using the rate of $24,750.00 per acre.

    Home Federal Savings Bank v. Madison Township Assessor (10/13/04 IndTaxCt - NFP) [Real property assessment]

    "Because Home Federal did not meet its burden of presenting a prima facie case, the Assessors duty to rebut Home Federals evidence was not triggered. See Clark v. State Bd. of Tax Commrs, 694 N.E.2d 1230, 1233 (Ind. Tax Ct. 1998) (stating that once a taxpayer presents a prima facie case, it must be rebutted with substantial evidence). Therefore, the Indiana Boards final determination upholding the assessment was not arbitrary or capricious."

    Posted by Marcia Oddi on Thursday, October 14, 2004
    Posted to Indiana Decisions

    Law - Top law firm agrees to aid City of New York against gun makers

    An April 17, 2004 Indiana Law Blog entry reported: "Top law firm withdraws from NY City gun industry suit." According to the NY Times story at the time, "Weil, Gotshal & Manges, had agreed more than two years ago to work on the case for free. But now the law firm is withdrawing from the case, acknowledging that at least one of its corporate clients had complained about its role."

    This story Tuesday in the Times, headlined "Top Law Firm Agrees to Assist City in Suit Against Gun Makers," reports:

    A top national law firm is joining New York City's landmark case that claims the firearms industry is responsible for gun crimes, replacing another major firm that stopped representing the city after at least one of its corporate clients complained about its role in the suit.

    The entry of the new law firm for the city, Thelen Reid & Priest, is to be made in a court filing today, city lawyers said yesterday. Thelen Reid, like the city's prior legal ally, Weil, Gotshal & Manges, agreed to work on the case at no charge. * * *

    City lawyers portrayed the arrangement with the new firm as balancing the legal talent in a fight against a powerful industry. It comes at a pivotal time in the battle. After a bitter court fight handled by the city's Law Department, the city today expects to receive a vast trove of confidential federal data tracing the path of guns used in crime. * * *

    The data the city is to receive today is at the center of the city's case. The information was collected by the Bureau of Alcohol, Tobacco, Firearms and Explosives. It includes the sales history of guns that law enforcement agencies seek to trace. Often, those guns were used in crimes. * * *

    Industry lawyers have asked the city to supply extensive data about shootings. They say it could prove that many guns used to commit crimes in the city are stolen or obtained in ways that are beyond the industry's control.

    Blue-chip law firms often represent many corporations. Some lawyers say those clients are troubled by suits like the one the city is pursuing. When they withdrew last spring, lawyers at Weil, Gotshal acknowledged that at least one of the firm's corporate clients had raised questions about their role in the case. They cited what they called a "potential positional conflict,'' indicating that some of the firm's corporate clients were worried that arguments advanced in the city's case might be used against them later.

    Some legal ethics experts said at the time that Weil, Gotshal appeared to have simply bowed to the wishes of long-term clients. In certain cases, it is common for municipal lawyers to join with major firms that can match the resources of big national firms.

    The earlier Indiana Law Blog entry, cited above, includes links to a number of prior entries, including to the Indiana Supreme Court's December 2003 ruling allowing Gary's suit against gun dealers to proceed -- City of Gary v. Smith & Wesson Corp. (12/23/03 IndSCt).

    Posted by Marcia Oddi on Thursday, October 14, 2004
    Posted to General Law Related

    Environment - Recent stories

    "Hog-farm trespass conviction upheld" is the headline to this story today in the Muncie Star-Press. The report is apparently about a Not for Publication decision of the Court of Appeals, as I have not seen it. Some quotes from the story:

    MUNCIE - The Indiana Court of Appeals this week affirmed a jury's conviction of an environmental/animal rights advocate for trespassing at the Seldom Rest confined hog feeding operation.

    Ball State University history professor Abel Alves and his wife Carol Blakney were seen observing and photographing the farm at 10:22 a.m. on Oct. 12, 2002, by Bobby Adams. He is a friend of prominent pork producers William and Kaye Whitehead, the farm's owners.

    "While there was no evidence Alves had opened or climbed over the gate and walked past the "No Trespassing" sign, the jury could have reasonably inferred that at least part of his body entered the air space above the Whiteheads' property," wrote appellate Judge Melissa May of Evansville. "As a result, there was sufficient evidence to sustain his conviction of trespass." * * *

    Deputy prosecutor Judi Calhoun called the ruling a "no-brainer" and a victory for all farmers and other private property owners. Had the conviction been overturned, farmers would have been forced to post "No Trespassing Signs" every six inches along the perimeter of their land, she said. * * *

    Blakney's appeal remains pending. "Frankly, this ruling is scary to me," Blakney said. "If someone doesn't like your politics, you can be brought up on criminal charges and prosecuted for stopping along a public road to take a picture of a barn. The public should be outraged. Property rights are paramount over caring about your community." * * *

    There appears to be no case law created by judicial rulings in Indiana addressing the point on a person's property at which a no-trespassing sign takes effect, the appeals court said. Indiana law defines trespassing as knowingly entering the property of another person after having been "denied entry." Entry can be denied by means of "posting ... a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public."

    Two months before the trespassing, Blakney had filed a complaint against Seldom Rest with the Indiana Department of Environmental Management. That resulted in IDEM accusing the Whiteheads of housing 150 hogs in an unpermitted structure and allowing manure from that structure to run into a ditch. The Whiteheads corrected the alleged violations.

    The Star Press left a message Wednesday afternoon on the answering machine of Kaye Whitehead, chairman of the Delaware County Republican Party, inviting her to comment.

    "U.S. Environmental Protection Agency Region 5 recently completed its cleanup of the American Chemical Service Inc. Superfund site in Griffith, Ind." is the title to this EPA release and announcement of an open-house at the site:
    U.S. Environmental Protection Agency Region 5 recently completed its cleanup of the American Chemical Service Inc. Superfund site in Griffith, Ind.

    An open house, including guided tours of the project by EPA and Indiana Department of Environmental Management officials, is scheduled for 3 to 5 p.m., Wednesday, Oct. 20, at the Griffith Town Hall, 111 North Broad St. Shuttle buses will take people to the site beginning at 3 p.m.

    The final phase of cleanup began in early 2001, with a projected end date of mid-2005. However, a recent inspection of the site by EPA and IDEM showed there is no need for additional work. ACS recycled chemicals from 1958 to 1975, when it stopped using two disposal areas on the property and covered them. These chemicals contaminated the ground water underneath the plant.

    The Porter County greenspace ordinance proposal, written up before here, was approved last evening. The Gary Post-Tribune reports:

    VALPARAISO The Porter County Plan Commission voted 5-4 to pass on an amended version of a controversial green space ordinance to the Porter County Commissioners, who must decide to act on it or accept the earlier version most admitted had serious flaws.

    The compromise ordinance will require developers to protect environmental features on parcels they wish to develop specifically dunes, flood plains, forest area, prairie, watercourses and wetlands. It puts a cap of 40 percent to be preserved as open space while only requiring a set-aside of 10 percent of land that has been agricultural field as open space.

    I am very disappointed that the Plan Commission would pass something that was fatally flawed, said Gary Green, owner of Wagner Homes. My clients want to live in trees and along streams. Wagner Homes has developed many of the upscale developments in Porter County.

    Green predicted that the ordinance will result in prime farm land becoming more desirable for development. He also predicted that property owners surrounding municipalities will be screaming for annexation.

    Environmentalist Herb Read said he was happy. It is a compromise of a compromise of a compromise, he said. We agreed to lower the percentage ( of set-aside open space) for cornfields to get a higher percent for environmental features.

    The Munster Times reports, in a story headlined "Hundreds show for vote approving green space":
    VALPARAISO -- A crowd of hundreds cast an informal vote Wednesday night for a rule requiring builders to set aside open space in their developments. And the Porter County Plan Commission agreed.

    Plan commission member Bob Harper sent out 7,000 letters with his case for the ordinance and the staff report, and almost every member of the audience was clutching the green, blue, yellow and pink sheets of dense language. * * *

    Even opponents of the ordinance, which requires between 10 and 40 percent of open space in developments depending on features like slopes and wetlands, said they support the idea, but the rule needs more work. The commission passed the ordinance by a 5 to 4 vote and promised to improve it.

    Posted by Marcia Oddi on Thursday, October 14, 2004
    Posted to Environmental Issues

    Indiana Courts - Running for Judge in Lake County

    "Judge gets unfavorable rating" is the headline to this story this morning in the Gary Post-Tribune:


    MERRILLVILLE The Lake County Bar Association on Wednesday released an annual judge assessment in which, for the first time since 2000, a majority of respondents recommended a judge be removed from the bench.

    Lake Superior Court Judge James Danikolas received an overall unfavorable rating from 60 percent of the 263 Lake County attorneys who responded on his competence, temperament and character in the survey.

    The last Lake County judge who received an unfavorable review from the bar association, Judge Joan Kouros, was removed from the bench Tuesday by the State Supreme Court.

    Danikolas, the chief judge in Civil Division 3 in the Gary Courthouse, is facing a disciplinary charge for allegedly firing a magistrate as a form of retaliation in 2003.

    The Munster Times has two stories today. this one reports the same facts as the Tribune story; this one is headlined "Last judge lawyers nixed was booted off bench Tuesday: Joan Kouros was retained by voters in 2000 despite unfavorable recommendation," and reports:
    Perhaps by coincidence, the results of the 2004 Judicial Qualifications Survey were released Wednesday -- one day after the Indiana Supreme Court booted Joan Kouros from her Lake Criminal Court bench.

    Until Wednesday, Kouros was the last judge lawyers recommended not retaining in their annual survey.

    Former Gov. Evan Bayh appointed Kouros to the bench in 1997, and the public got their first chance to vote to retain her in the 2000 election.

    Posted by Marcia Oddi on Thursday, October 14, 2004
    Posted to Indiana Courts

    Wednesday, October 13, 2004

    Indiana Decisions - Six from Court of Appeals Today

    Brook T. Richards v. State of Indiana (10/13/04 IndCtApp) [Criminal Law & Procedure]
    Ratliff, Senior Judge

    STATEMENT OF THE CASE. Brook T. Richards appeals his conviction, of criminal confinement, a Class D felony. We affirm.

    THE ISSUE. Whether the evidence was sufficient to support the conviction of criminal confinement [35-42-3-3]. * * *

    Finding the evidence sufficient to sustain the charge under both subsection (1) and subsection (2), we affirm the judgment. Judgment affirmed.
    RILEY, J., and DARDEN, J., concur.

    Chelsea Spaulding, Jr. v. State of Indiana (10/13/04 IndCtApp) [Criminal Law & Procedure]
    Barnes, Judge
    Case Summary. Chelsea Spaulding appeals his conviction for driving while suspended resulting in death, a Class C felony. We affirm.

    Issue. The sole issue before us is whether there was sufficient evidence to prove beyond a reasonable doubt that Spauldings driving caused the death of Charles Lloyd. * * *

    We conclude that the evidence was sufficient for the fact-finder to determine beyond a reasonable doubt that Spauldings operation of a motor vehicle while his license was suspended resulted in Lloyds death.

    Conclusion. The State presented sufficient evidence to convict Spaulding of driving while suspended resulting in death. We affirm.
    NAJAM, J., and SULLIVAN, J., concur.

    Mark L. Sandifur v. State of Indiana (10/13/04 IndCtApp) [Criminal Law & Procedure]
    Najam, Judge
    Mark L. Sandifur appeals his conviction for Dealing in a Schedule II Controlled Substance, as a Class B Felony, following a jury trial, and presents the following issues for our review: Whether the trial court committed fundamental error when it admitted into evidence Sandifurs audiotaped statement to police, which contained references to a proposed polygraph examination. Whether the trial court abused its discretion under Indiana Evidence Rule 403 when it allowed evidence that the person to whom he had given drugs had died from a drug overdose. We affirm. * * *

    We conclude that the trial courts decision to admit Sandifurs audiotaped statement containing references to a proposed polygraph examination does not amount to fundamental error. We further conclude that the trial court did not abuse its discretion when it allowed the State to introduce evidence that Gochenour had died from a drug overdose, including the autopsy report, because such evidence was relevant and not unfairly prejudicial. Affirmed.
    SULLIVAN, J., and BARNES, J., concur.

    Robert Holden v. State of Indiana (10/13/04 IndCtApp) [Criminal Law & Procedure]
    SULLIVAN, Judge
    Robert Holden appeals from his convictions for two counts of Robbery as Class B felonies and two counts of Conspiracy to Commit Robbery as Class B felonies. He presents four issues for our review:
    I. Whether the convictions are supported by sufficient evidence; II. Whether evidence related to a subsequent robbery of a third bank should have been admitted; III. Whether the convictions for robbery and conspiracy violate double jeopardy; and IV. Whether the trial court erred in sentencing Holden. We affirm in part, reverse in part, and remand with instructions. * * *

    Turning now to the facts in the case before us, we too conclude that the prohibition against double jeopardy was violated. While there were significant and detailed facts presented to the jury with regard to all of the events constituting the planning of the robberies, the jury was instructed to focus upon the actual events of the robbery as the overt act of conspiracy. From a comparison of the jury instructions, we conclude that there is a reasonable possibility that the jury relied upon the same factsthat Holden provided the handgun and waited for one of the cohorts to commit the robberyfor both the robbery and conspiracy to commit robbery convictions. Thus, we vacate both convictions for conspiracy to commit robbery, leaving the convictions for robbery in place. * * *

    Holden makes several arguments related to the propriety of the sentence he received. He claims that the trial court considered an improper aggravating factor, that the sentence was inappropriate, and that the sentencing scheme used in this case violates the rule of law explicitly announced in Blakely v. Washington, 124 S.Ct. 2531 (2004). Because the alleged Blakely violation will directly impact the remaining claims with regard to sentencing, we address it first. * * *

    The crux of the decision in Blakely appears to turn upon what constitutes the statutory maximum sentence. The Court noted that precedent made clear that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant. (emphasis in original). The Court then clarified the statutory maximum by stating that it is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jurys verdict standing alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, . . . and the judge exceeds his proper authority. However, when a defendant enters a guilty plea, the State is free to seek judicial enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact finding.

    Holden alleges that none of the aggravating factors found by the trial court were found by the jury or admitted by him. However, we note that the trial court concluded that Holdens significant and consistent adult and juvenile criminal history was an aggravating factor. According to Blakely, this factor need not be determined a second time by a jury. From Holdens criminal history, the trial court also determined that the type of offenses were increasingly becoming more severe. This conclusion also does not trigger a Blakely analysis. Finally, the trial court took notice of the fact that Holden had just committed another bank robbery in Switzerland County and that he pleaded guilty to that charge. Once again, this aggravator is outside of the scope of Blakely review.

    The other aggravating factors relied upon by the trial court include a recitation of facts relating to the particular robberies for which Holden was tried and what they demonstrated about Holdens character, and the trial courts determination that Holden was in need of rehabilitative treatment best provided by commitment to a penal facility. * * * However, because the trial court relied upon three different aggravators, we conclude that there is no reasonable possibility that the complained of aggravators contributed to the sentence. * * *

    We reverse the two convictions for conspiracy to commit robbery and remand to the trial court to vacate those convictions. Upon all other grounds, the judgment is affirmed.
    MAY, J., and VAIDIK, J., concur.

    James Sublett v. State of Indiana (10/13/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
    Sullivan, Judge
    Following a jury trial, Appellant James Sublett was convicted of operating a motor vehicle after his privileges had been forfeited for life, a Class C felony. See footnote Upon appeal, Sublett presents one issue for our review, which we restate as whether the trial court erred in admitting evidence resulting from a sobriety checkpoint which he claims was in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We affirm. * * *

    Our holding is not in conflict with Edmond, supra, in which narcotics checkpoints by the City of Indianapolis were held to violate the Fourth Amendment. The Edmond Court rejected the Citys argument that the checkpoint, despite its unlawful primary purpose, was justified by its lawful secondary purpose of keeping impaired motorists off the road and verifying licenses and registrations. 531 U.S. at 46-47. In contrast, the primary purpose of the checkpoint in question here was preventing drunken driving, which unlike the narcotics checkpoint in Edmond, is itself proper. See footnote The trial courts conclusion here that the checkpoint was valid under the Fourth Amendment was not in error. * * *

    Considered along with the objective, location, and timing of the checkpoint, the level of intrusion, and the effectiveness of the checkpoint, See footnote Sublett has not convinced us that the trial court erred in determining that the checkpoint was not unreasonable for purposes of Article 1, Section 11. Therefore, the trial court did not err in admitting the evidence obtained as a result of the stop of Subletts vehicle at the checkpoint. The judgment of the trial court is affirmed.
    MAY, J., and VAIDIK, J., concur.

    State of Indiana v. Heath Spillers (10/13/04 IndCtApp) [Criminal Law & Procedure]
    Sullivan, Judge
    The State appeals the trial courts grant of a motion to suppress the evidence obtained as a result of the search of the apartment of Heath Spillers girlfriend. The State presents one issue for our review, whether the warrant upon which the search was executed was based upon probable cause. We reverse. * * *

    To the extent that the holdings in Leicht and Creekmore conflict with the holding in Newby, we decline to follow Newby. * * *

    The trial courts grant of the motion to suppress is reversed. The cause is remanded for further proceedings not inconsistent with this decision.
    MAY, J., and VAIDIK, J., concur.

    Posted by Marcia Oddi on Wednesday, October 13, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts 5 today

    Ghebremedhin, Ghebre v. Ashcroft, John (On Petitions for Review of an Order of the Board of Immigration Appeals)

    Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. * * * Because we conclude that the evidence Ghebremedhin presented to the IJ compelled the conclusion that he would be subject to persecution should he be forced to return to Eritrea, we grant the petition for review and reverse the decision of the BIA. * * *

    Because the evidence supporting Ghebremedhins fear of persecution is so compelling that no reasonable factfinder could agree with the BIAs decision, we GRANT the petition for review and REVERSE the BIAs order. The case is REMANDED to the BIA to enter an order granting Ghebremedhin asylum.

    USA v. Oliva, Edwin (ND Ill.)
    Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
    WOOD, Circuit Judge. Edwin Oliva was caught attempting to sell two kilos of cocaine to a confidential informant. He pleaded guilty to conspiracy to possess and distribute more than 500 kilograms of cocaine. Olivas plea agreement reserved the right to appeal the district courts denial of his motion to suppress his arrest and the search of his car. Because we find that the arrest and subsequent search were supported by probable cause, we affirm the conviction.
    Osler Institute Inc v. Forde, Lois (SD Ind., Chief Judge Larry J. McKinney)
    EVANS, Circuit Judge. The Osler Institute, Inc. appeals from an order granting its former employee, Lois Forde, attorney fees following her successful defense to this lawsuit. * * *

    We now arrive at the current controversy. In addition to the noncompetition clause, the employment contract contained a provision providing for attorney fees to the prevailing party. Under that provision, Forde sought and was granted attorney fees of almost $55,000. Osler appeals the fee award, contending that the employment contract was found to be void and therefore, for various reasons, the attorney-fees provision cannot be used to support an award of fees. The argument is, in effect, that Forde prevailed too thoroughly and cannot now recover her fees.

    It is uncontested that Indiana law provides the basis for decision. Indiana adheres to the American rule, under which, in the absence of a statutory provision or an agreement providing for fees, each party is required to pay its own attorney fees. When a contract exists allowing for the recovery of attorney fees, the provision will be enforced according to its terms unless it violates public policy. [cites omitted] * * *

    The [attorney's fees] clause provides a significant benefit to either party and is not limited to an award of fees for actions on the contract. The present action involved four separate claims against Forde, all involving her employment. The fact that she won by convincing us that she did not qualify for coverage under the noncompetition clause surely cannot mean that she loses the benefit of the sweeping attorney fees provision. We AFFIRM the district courts award of attorney fees.

    USA v. Ceballos, Alfredo (SD Ind., Judge Richard L. Young)
    Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
    BAUER, Circuit Judge. Two of the defendants, Alfred Ceballos and Jose
    Trejo-Pasaran, proceeded to trial on charges of drug trafficking and related crimes. The jury convicted both defendants of all of the charges contained in the indictment. Ceballos and Trejo-Pasaran appeal their convictions. The defendants argue: (1) that the district court committed error when it found that Ceballos statements at the time of his arrest were voluntary, (2) that the district court abused its discretion in admitting the testimony of Special Agent Michael Kress with respect to his interpretation of drug code language, (3) that the district court was in error in finding that law enforcement agents did not violate the defendants Fourth Amendment rights by interviewing them about booking information, and (4) that the district court abused its discretion in permitting the use of transcripts of the intercepted telephone conversations with identifying names in the margins of the transcripts. For the reasons stated herein, we affirm the convictions and sentences of Ceballos and Trejo-Pasaran.
    Corley, Robert N. v. Rosewood Care Center (CD Ill.)
    Before RIPPLE, ROVNER and EVANS, Circuit Judges.
    ROVNER, Circuit Judge. Placing an elderly parent in a nursing home is a trying experience under the best of circumstances. Running a nursing home can also be challenging; the industry is highly regulated and the customers are often anxious and unhappy about the need for nursing home services. Needless to say, when a customer believes he has been defrauded and the proprietors of the establishment have been accused not just of fraud but racketeering, emotions can be expected to run high. One would hope their respective attorneys would be able to defuse the situation and litigate the case in a dispassionate manner. No such luck here: the parties and their attorneys have chosen the scorched earth model of litigation. This relatively simple case has generated more than one thousand entries in the district court docket. The record fills a back-breaking seven bankers boxes stuffed to bursting, and the briefs on appeal do little to untangle the mess the parties have made of the case. This is the second time we have reviewed a district courts grant of summary judgment against the plaintiff in this civil RICO action. We previously reversed and remanded a grant of summary judgment because the district court halted discovery before the plaintiff had a full opportunity to prove his case. Now that the plaintiff has been given every opportunity to make his case, we affirm the district courts grant of summary judgment because the plaintiff is still unable to produce enough evidence to demonstrate a viable RICO claim against the defendants here. The defendants have cross-appealed, arguing that the district court abused its discretion in declining to sanction the plaintiff for multiplying the proceedings in an unreasonable and vexatious manner. Finding no abuse of discretion, we affirm the district courts judgment in all respects.

    Posted by Marcia Oddi on Wednesday, October 13, 2004
    Posted to Indiana Decisions

    Environment - Report criticizes feds enforcement efforts

    "Group Says Bush Easy on Polluters: Government lawsuits against violators have dropped sharply, critics complain. The EPA says it is working to settle existing actions." That is the headline to this story today in the LA Times that begins:

    During the first three years of the Bush administration, the number of civil lawsuits that the federal government filed against polluters dropped by 75% compared with the last three years of the Clinton administration, an environmental group reported Tuesday.

    Eric Schaeffer, director of the group that compiled the data, said they showed that the administration had been weak on enforcing anti-pollution laws.

    CBS MarketWatch reports:
    Report : Utilities face fewer EPA pollution lawsuits By Stephanie Cohen
    WASHINGTON (CBS.MW) -- Civil lawsuits filed by the Environmental Protection Agency against utility and oil companies have drastically declined during the first three years of the Bush administration compared to the last three years of the Clinton administration, according to a report released by the Environmental Integrity Project. The environmental advocacy group claims the EPA under the current administration has not pursued cases against companies that refuse to voluntarily settle Clean Air Act or Clean Water Act violations. Only nine Clean Air Act lawsuits were filed by the EPA from Jan. 19, 2001, through Jan. 18, 2004, compared to 61 in the three years prior to Jan. 19, 2001, the group said.
    Here is a link to a page where you may download the report itself, titled "Polluters Breathe Easier - EPA Environmental Court Actions Decline." Unfortunately, it appears to be available only as a MSWord document. Here is a link to the organization's main page.

    Posted by Marcia Oddi on Wednesday, October 13, 2004
    Posted to Environmental Issues

    Law - U.S. Supreme Court to hear second private-property case

    Late last month the Supreme Court elected to hear Kelo v. City of New London, involving the use of eminent domain for private development. See ILB entries here and here.

    Tuesday, as reported here by Linda Greenhouse of the NY Times in a story headlined "Second Private-Property Case Accepted by Supreme Court," the Court accepted a related case. Some quotes:

    With an important eminent domain case already on the docket, the Supreme Court expanded its examination of private-property rights on Tuesday by accepting a new case on how courts should decide when an economic regulation goes so far as to amount to an unconstitutional "taking" of private property.

    The case is an appeal by the state government of Hawaii, where a federal court ruled unconstitutional a law limiting the rent that oil companies can charge to independent dealers who lease its service stations. The district court in Honolulu, in a decision upheld by the United States Court of Appeals for the Ninth Circuit, in San Francisco, held that expert testimony on the economic effect of the regulation had failed to prove that it would "substantially advance a legitimate state interest."

    This was the wrong standard, the state argued vigorously in its Supreme Court appeal. The state said the Ninth Circuit had established an "intrusive" legal test that invited judges to substitute their own views of the "efficacy or wisdom of the government action" for the views of elected officials. Courts should limit themselves to deciding whether a government economic regulation has a rational basis, a much more deferential standard, the state argued.

    The importance of this issue to government officials was underscored in briefs filed on Hawaii's behalf by New York, California, Connecticut and 16 other states as well as by the National Conference of State Legislatures, the United States Conference of Mayors and other government bodies. It has implications not only for rent-control laws like Hawaii's, but for environmental, health and safety rules as well as for the zoning and land-use regulations that have been the focus of the courts' concerns about the Fifth Amendment's "takings" clause.

    The Fifth Amendment provides that private property shall not be "taken for public use without just compensation." In the case the Supreme Court accepted late last month, Kelo v. City of New London, No. 04-108, the question is whether private economic development that will add to the city's tax base is an appropriate "public use" for which a city can exercise its power of eminent domain to condemn property of lower economic value.

    The new case, Lingle v. Chevron U.S.A. Inc., No. 04-163, presents a related but distinct question: whether the challenged rent regulation is a taking in the first place. The Supreme Court's precedents make clear that the government does not have to physically acquire property in order to "take" it and incur the obligation to pay for it. A regulation can be a taking if it strips the property of much of its economic use.

    Another write-up on the case can be found here - it is a story by David Savage of the LA Times that begins:
    WASHINGTON A Hawaii dispute has prompted the Supreme Court to take up a legal question with potential impact in rent-control havens like Santa Monica: When does a government regulation go so far as to unconstitutionally "take" private property?

    In the past, the court has said the government has broad authority to impose economic regulations, including rent-control laws, even though the limits cut into the profits of landlords. Despite decades of litigation, property owners have failed to knock down laws such as those in Santa Monica and Berkeley that limit how much they can charge.

    But the Constitution also says the government may not take private property, and the line between a business regulation that limits profits and the taking of property is not always clear.

    In April, the U.S. 9th Circuit Court of Appeals surprised some government lawyers when it ruled that a Hawaii rent-control measure amounted to a "regulatory taking" of private property.

    The 1997 measure was designed to hold down gasoline prices on the islands, which are among the nation's highest. Lawmakers hoped to maintain independent service station dealers, and they set limits on how much oil companies could charge in rent for service station dealerships.

    Posted by Marcia Oddi on Wednesday, October 13, 2004
    Posted to General Law Related

    Law - U.S. Supreme Court to Decide on Litigants' Access to Federal Court

    "Supremes to Decide on Litigants' Access to Federal Court" is the headline to an AP story republished today at Law.com. The lead:

    The Supreme Court decided Tuesday to use cases involving a child's cut finger and a promotional program by Exxon Mobil Corp. to determine when lawsuits belong in federal or state court.

    At issue is whether litigants should have access to federal court when their cases don't meet the legal requirements but allege the same basic facts as other cases that do. The circuit courts are closely divided on the issue, which could help avoid duplicative trials but overburden federal courts in the process.

    Unfortunately, I can't tell you where the 7th Circuit stands.

    Maria del Rosario Ortega, et al v. Star-Kist Foods, Inc. is a 1st Circuit decision. As reported in the AP story:

    Beatriz Blanco-Ortega, then 9, was at school in Puerto Rico when she cut her finger on the tuna can and bled profusely for nearly 30 minutes. * * *

    "The issue at hand is a fundamental and frequently recurring one, with profound consequences to broaden or constrict the diversity jurisdiction of the federal courts," states the family's legal filing urging the high court to grant them federal court access.

    Attorneys for Star-Kist counter that the family's lawsuits don't make a good test case to determine whether federal courts should be opened up to hundreds, if not thousands, more cases each year.

    Typically, parties suing for personal injury and emotional distress prefer juries in local courts. Blanco-Ortega's situation is unusual because Puerto Rico doesn't provide for jury trials there, Star-Kist lawyers said.

    Exxon Corporation, Petitioner v. Allapattah Services, Inc., et al. is an 11th Circuit decision. As reported in the AP story:
    In the Exxon case, the Supreme Court will use a $500 million judgment for Exxon gas station dealers to clarify when large class action lawsuits belong in federal courts. Because the judgment was divided among 10,000 current and former station owners, not all of them met the $50,000 minimum required at the time for federal court jurisdiction.

    Dealers sued in 1991, claiming a program intended to encourage customers to pay at the pump cheated them. A federal jury in Miami agreed in 2001, and ordered the company to pay $500 million to the owners. Lawyers have said the verdict could reach $1 billion if the judge adds interest.

    Exxon Mobil attorney Carter Phillips of Washington told justices that Congress could clear up confusion over access to federal courts, but has not. He said the issue is significant because more than 3,000 class actions are filed each year in federal courts.

    [Update] I see that Howard Bashman has a post on this matter with some useful links. Access it here.

    Posted by Marcia Oddi on Wednesday, October 13, 2004
    Posted to General Law Related

    Indiana Courts - More on Judge Kouros Removal

    The Munster Times reports today, in a story inelegantly titled "Supreme Court boots Kouros for good," that:

    It's final. Joan Kouros no longer is a judge, but she can still practice law.

    The Indiana Supreme Court ended a five-year saga Tuesday by issuing a unanimous 18-page decision ordering Kouros' permanent removal from the Lake Criminal Court bench effective Feb. 25.

    Kouros' July 22 suspension with pay continues until the February date, so she'll be eligible for the minimum judicial pension benefits, the state's highest court ruled.

    "We conclude that this is appropriate given the Respondent's (Kouros') years of service and the fact that her misconduct reflects, essentially, an inability to carry out the duties of her office rather than moral culpability," the justices wrote.

    The court refused to suspend Kouros' law license, even though it has the right to under Indiana law.

    However, the Supreme Court also ordered Kouros to pay the costs of the proceedings. That includes any reimbursement paid to the three master judges who heard testimony in April that Kouros had not kept her word to effectively run Lake County Criminal Courtroom 3, said an attorney in the Supreme Court administration office. Other costs involved would include the transcript of that hearing, copying and investigation expenses.

    An editorial today in the same paper opines:
    Our opinion: Despite this proper discipline by the Indiana Supreme Court, the taxpayers still have to support her.

    The Indiana Supreme Court on Tuesday finally decided to remove Lake Superior Court Judge Joan Kouros from the bench, ending two years of efforts to help her manage her caseloads and two suspensions for not doing so.

    Unfortunately, for the taxpayers of Lake County, her removal does not free them from the obligation of paying her salary or future pension. The justices decided she will not have to relinquish her position until Feb. 25, thus ensuring she will not lose her pension benefits when she reaches retirement age. In addition, the justices said her current suspension with pay, since August, will remain in effect until Feb. 25. County Judges make about $98,000 a year. * * *

    Kouros, appointed to the bench in 1997 by then-Gov. Evan Bayh, now a U.S. senator, has explained that after she was diagnosed with multiple sclerosis, an obsessive-compulsive disorder became more pronounced, hampering her work. She has sought help for her ailments, which is commendable.

    But the issue is the timely and fair dispensation of justice in the court system here.

    What is not fair is that, despite this proper discipline by the Indiana Supreme Court, the taxpayers still have to support her.

    Posted by Marcia Oddi on Wednesday, October 13, 2004
    Posted to Indiana Courts

    Tuesday, October 12, 2004

    Environment - Indianapolis Star presses for debate on environmental issues

    In an editorial today, the Indianapolis Star states:

    Our position is: Environmental issues that affect the health, quality of life and economy of Indiana deserve debate in the gubernatorial campaign.

    A discussion of how best to protect Indiana's environment has been conspicuous by its absence in the campaign for governor.

    It didn't surface during the debate. The subject isn't on the candidates' Web sites. If you search Democratic Gov. Joe Kernan's 47-page Action Indiana document or Republican challenger Mitch Daniels' 4,000-word Road Map, you'll find virtually nothing about the topic. * * *

    Whoever is elected governor will have to confront difficult and expensive decisions connected with Indiana's environment. These decisions will affect the state's health, quality of life and economic future.

    The issue should have been -- and perhaps still could be -- part of the debate during the statewide campaign.

    Posted by Marcia Oddi on Tuesday, October 12, 2004
    Posted to Environmental Issues

    General News - Ed Feigenbaum on Road to Recovery

    Good news for friends of Ed Feigenbaum, INGROUP Publisher, Editor and Writer, who, as reported in this entry on September 14th, was seriously injured in an I-69 accident on Saturday, September 11th.

    I received a hand-written note from Ed in the mail today. He is back home again, after stays in Methodist and a rehab hospital, and has been catching up by reading the Indiana Law Blog. He reports:

    Fortunately, my recovery appears to be proceeding both more quickly and completely than had initially been anticipated, so I'm looking forward to returning to the fray well before the election.

    Posted by Marcia Oddi on Tuesday, October 12, 2004
    Posted to General News

    Indiana Courts - Judge Kouros to be removed

    An AP story just posted on the Indianapolis Star website reports:

    The Indiana Supreme Court ordered today that a Lake Superior Court judge who was twice suspended for creating a backlog of cases be removed from office.

    The high court said Judge Joan Kouros had failed to manage her caseload or even "provide accurate information that would allow us to monitor her performance with confidence to ensure that justice is being administered fairly and promptly in her court."

    The justices ordered Kouros removed from office effective Feb. 25, and said a previously ordered suspension with pay would remain in effect until then. The postponed removal ensures that Kouros will not lose minimum pension benefits when she reaches retirement age.

    Posted by Marcia Oddi on Tuesday, October 12, 2004
    Posted to Indiana Courts

    Indiana Courts - Even more on running for judge in Delaware County

    Earlier this month we posted this entry quoting from a story in the Muncie Star-Press which began: "Judicial candidate Jeffery Arnold is crying foul after the bailiff of his opponent, Delaware Circuit Court 1 Judge Marianne Vorhees, urged the victim in a long-dormant stalking case to go public with her complaints about Arnold, the deputy prosecutor in the case." In an entry a few days later we quoted from an AP story that began: "A former Delaware County sheriff has resigned his job as a court bailiff amid accusations he urged an alleged stalking victim to publicly criticize the judge's opponent before the November election."

    Today the Muncie Star-Press has posted stories on each candidate. Interestingly, the story about the current judge is headlined "Judge uses exercise to reduce tension," while the story about her opponent is titled: "Arnold seeks new role in courtroom."

    Posted by Marcia Oddi on Tuesday, October 12, 2004
    Posted to Indiana Courts

    Monday, October 11, 2004

    Law - "Reading the law" still an option in California

    "Apprentices Take Law Into Their Own Hands" was the headline to this story Sunday in the LA Times. Some quotes:

    California is one of seven states that allow prospective attorneys to skip law school and earn the right to practice by serving apprenticeships. The UFW has made steady use of the program, turning out half a dozen attorneys in 30 years with the same training method used by Abraham Lincoln and Clarence Darrow. * * *

    Apprenticeship once was the primary means of legal education in the United States. That changed in the late 1800s with the rise of professional law schools, amid calls for quality control and the emergence of increasingly complex legal matters.

    Most states, responding to pressure from the American Bar Assn., have eliminated apprenticeship programs. Those that remain get few takers. The bar association's Code of Recommended Standards states that "neither private study, correspondence study or law office training, nor age or experience should be substituted for law school education."

    Since 1980, 436 people have registered for the apprentice program known as law office study with the State Bar of California and only 64 have passed the bar exam. Bar officials estimate that fewer than 30 people are pursuing the program at any given time.

    It is a tough way to go. In the last seven years, about 20% of those who studied law as apprentices have passed the bar. That compares with slightly more than 50% of those who attended accredited law schools.

    But bar officials say it's important to keep the avenue open, noting that law office study remains a valuable option for people who live in remote areas, are launching second careers or can't afford the tens of thousands of dollars it costs to attend law school.

    Moreover, the unorthodox approach responds to larger issues of access and diversity, ensuring that the bar continues to attract people with different backgrounds, viewpoints and reasons for wanting to practice, they say.

    "I think it's important that we provide as many avenues of access to the profession, so all of society can be represented," said Jerome Braun, the state bar's senior executive for admissions. "If one or two Abraham Lincolns end up going through the program, getting admitted and becoming successful, we are all better off for it."

    Those states that permit law office study California, Maine, New York, Vermont, Virginia, Washington and Wyoming do so counter to a nationwide trend over the last century to standardize legal education and balance practical training with a strong theoretical base.

    Posted by Marcia Oddi on Monday, October 11, 2004
    Posted to General Law Related

    Economic Development - 25-year shifting of risks from business to the individual

    "If America Is Richer, Why Are Its Families So Much Less Secure? For 25 years, government and business have forced workers to take on mounting risk. A Times analysis shows ever-larger swings in household incomes." That was the headline to a long (12 pages in print format) and important article in the LA Times Sunday. A quote:

    In their own ways, the problems encountered by Fredo and Burtless can be traced to the same source a set of economic policies shaped by government officials and corporate executives intent on creating a more prosperous America.

    Starting in the late 1970s, the nation's leaders sought to break a corrosive cycle of rising inflation and stagnating output by remaking the U.S. economy in the image of its frontier predecessor deregulating industries, shrinking social programs and promoting a free-market ideal in which everyone must forge his or her own path, free to rise or fall on merit or luck. On the whole, their effort to transform the economy has succeeded.

    But the economy's makeover has come at a large and largely unnoticed price: a measurable increase in the risks that Americans must bear as they provide for their families, pay for their houses, save for their retirements and grab for the good life.

    A broad array of protections that families once depended on to shield them from economic turmoil stable jobs, widely available health coverage, guaranteed pensions, short unemployment spells, long-lasting unemployment benefits and well-funded job training programs have been scaled back or have vanished altogether.

    "Working Americans are on a financial tightrope," said Yale University political scientist Jacob S. Hacker, who is writing a book called "The Great Risk Shift." "Business and government used to see it as their duty to provide safety nets against the worst economic threats we face. But more and more, they're yanking them away."

    The yanking may be far from finished.

    Posted by Marcia Oddi on Monday, October 11, 2004
    Posted to Indiana economic development

    Law - More on Blakely

    Two Blakely-related items caught my eye/ear this weekend. First, there was this article from San Franciso, republished at Law.com, titled "San Francisco's 'Blakely' Waivers Prompt War Over Wording." Some quotes:

    San Francisco prosecutors have recently started using so-called Blakely waivers in felony plea bargains in response to the June decision from the U.S. Supreme Court.

    But across the board, deputy public defenders are refusing to sign. If necessary, they'll offer clients an alternative written by their office, said Public Defender Jeff Adachi.

    Chief Assistant District Attorney Russell Giuntini said Wednesday that he hadn't seen the public defender's waiver, but he said, "I'd welcome looking at anything."

    If the two sides can't agree on a form, though, it could mean fewer plea bargains, and at an extreme, more trials.

    Here are links to two of my earlier entries on this topic, the first containing a link to the Marion County Prosecutor's Office form, and the second containing an inside look on prosecutors v. defenders use of the waiver in Marion County.

    Another item from this weekend was NPR's Sunday Weekend Edition's feature titled "Sentencing Guidelines: A Response." Listen here. Eric Vos, an assistant federal defender in Pennsylvania, offers the commentary.

    Posted by Marcia Oddi on Monday, October 11, 2004
    Posted to General Law Related

    Indiana Law - Three constitutional amendments on the Indiana ballot

    The Gary Post-Tribune reports today that Indiana voters will be presented with three proposed constitutional amendments on the Nov. 2 ballot. Here is the Trib's summary:

    Question 1: Taxes

    The one question that may draw the most attention is the proposed tax amendment that will enable lawmakers to provide property tax exemptions to homeowners, owners of property used to produce income, and inventory.

    Though the question sounds harmless enough and possibly beneficial to taxpayers the Indiana Farm Bureau has come out against the change. Superficially, it sounds good, said Lew Middleton, Farm Bureau spokesman. But the law may stack the deck against farmers, Middleton said. The Farm Bureaus Web site says since farmland would not qualify for any of the newly authorized relief, it would have to bear greater property taxes to pay for the relief authorized by the amendment.

    But that is disputed by State Rep. Ralph Ayres, R-Chesterton, who said the amendment would remove constitutional barriers to providing inventory tax relief to businesses, manufacturers and farmers. He said the bill [joint resolution] was passed by two consecutively elected legislatures with broad support.

    Question 2: Term starts

    An odd thing about the Indiana Constitution is that it mandates several offices, from county clerk to county recorder. It even mandates four-year terms, and, for some, term limits. But it doesnt say when the terms should begin.

    Since the mid-1800s, a total of 78 county officeholders throughout the state have had to wait 14 months between being elected and taking the oath and assuming duties, according to David Bottorff, legislative director for the Association of Indiana Counties.

    Porter County Clerk Dale Brewer is one of the victims of the quirky laws. She was elected to the office in 1998, but couldnt take office until Jan. 1, 2000, because of a mysterious one-year lag that the various laws require for those 78 local officials. Bottorff said if voters approve of the amendment, there will be less confusion about the electoral process.

    Ayres said there may have been good reasons for the laws when new counties formed in the 1800s. But Ayres said the terms should start the following January to be uniform, and to allow voters to elect people who assume office as soon as possible.

    Question 3: Succession

    The third question has to do with succession of governors in case of emergency. The issue arose after the terrorist attacks of Sept. 11, 2001, not the late Gov. Frank OBannons death, Ayres said.

    The amendment would clarify when and who would take the governors office if a major attack or natural event took the lives of both governor and lieutenant governor, or if both officeholders resigned. The amendment would clarify how Indiana maintains a governing body while making a transition, Ayres said.

    Note: In a separate entry before the election, I will point to some concerns about the proposed succession amendment.

    Posted by Marcia Oddi on Monday, October 11, 2004
    Posted to Indiana Decisions

    Law - Provisional voting may cause confusion

    "Backup voting system may be source of glitches and lawsuits" is the headline to this AP story published today in the Munster Times. A quote:

    WASHINGTON (AP) -- Call it the law of unintended consequences.

    A new national backup system meant to ensure that millions of eligible voters are not mistakenly turned away from the polls this year, as happened in 2000, could wind up causing Election Day problems as infamous as Florida's hanging chads.

    Congress required conditional, or provisional, voting as part of election fixes passed in 2002. For the first time, all states must offer a backup ballot to any voter whose name does not appear on the rolls when the voter comes to the polling place on Nov. 2. If the voter is later found eligible, the vote counts.

    Congress did not specify exactly how the provisional votes will be evaluated.

    "States struggle with provisional balloting" Will they be the 'hanging chads' of Decision 2004?" is the heading to this story on the MSNBC website.

    And the Cleveland Plain Dealer reported here last Wednesday:

    A voting-rights group filed a lawsuit Tuesday challenging Ohio Secretary of State Kenneth Blackwell's rules on provisional voting - the second such legal challenge over the controversial issue.

    The suit, filed by the Ohio Voter Protection Project, says Blackwell will require some first-time voters to show identification before receiving a provisional ballot on Election Day - a violation of the federal Help America Vote Act, or HAVA. * * *

    Provisional ballots are special ballots for voters who believe they are registered, though their names do not appear on the voter rolls on Election Day. The ballots are set aside so election officials can later determine if the voters are eligible.

    Blackwell, citing state law, has told local election officials that these ballots must be given only to voters who appear at the correct precinct. But the lawsuits say the state's rules should have been changed after Congress passed HAVA in 2002, a law that encouraged the use of provisional ballots so legitimate voters aren't turned away.

    Posted by Marcia Oddi on Monday, October 11, 2004
    Posted to General Law Related

    Environment - Stories today

    A front-page, above-the-fold story today in the Indianapolis Star today by Star environmental reporter Tammy Webber focuses on the role of the environment in Indiana's governor's race. The headline: "Governor's race: Pollution concerns are taking back seat." Some quotes:

    Most urban areas in Indiana violate the federal air pollution standard for smog. The state's coal-fired power plants emit the country's fourth-highest volume of mercury into the air.

    Almost every waterway has a warning against eating too many fish because of mercury and PCB contamination. And about 20 billion gallons of sewage-tainted wastewater overflows into rivers and streams every year from antiquated sewer systems in 105 cities and towns.

    Yet when Gov. Joe Kernan and Republican challenger Mitch Daniels mention environmental matters, the conversation usually centers on how quickly the Indiana Department of Environmental Management issues permits for agriculture and other industries.

    Another Tammy Webber story appears on the front page of today's Star's City-State section and is headlined: "Odor has New Castle residents fuming: Officials have not determined the source, or whether it poses a risk to public health." The story recounts not only the problems of New Castle but those of other communities arounf the state facing similar issues (for earlier ILB coverage, type "odor" in the search box). Some quotes:
    New Castle is not the only Indiana town struggling to explain an environmental phenomenon. But it is the latest illustration of how elusive answers can be.

    In Martinsville, prosecutors, judges and the county clerk this summer abandoned the Morgan County Courthouse because of illnesses ranging from headaches and respiratory problems to a metallic taste and blistered lips. Tests by state health officials, the state Occupational Safety and Health Administration and an outside consultant have found nothing in the building that could cause health problems. County officials say they'll ask the federal Centers for Disease Control and Prevention to help investigate.

    More than 100 Kokomo residents claim they've become sick because of a constant hum. Tests commissioned by the city found low-frequency vibrations from two industries. Although the companies steadied the vibrations, many say the hum persists and suspect electromagnetic radiation emitted by radio towers and power lines are to blame.

    Similar problems with low-frequency vibrations were reported in South Bend, and residents in both cities are calling on state officials to investigate and hold a conference on the issue. State officials say they don't have the expertise to investigate and requests for help to the CDC and U.S. Environmental Protection Agency have gone unheeded.

    "Lugar questions why Indiana didn't get federal lead eradication money" is the headline of this story today in the Munster Times. Some quotes:
    FORT WAYNE (AP) -- Sen. Dick Lugar is questioning why Indiana did not receive federal money to aid programs that try to protect children from lead poisoning.

    Lugar, R-Ind., has asked the U.S. Department of Housing and Urban Development to explain why nine Indiana agencies, cities or counties that applied for a total of more than $12 million in grants were denied.

    Tom Neltner, director of the Indianapolis-based advocacy group Improving Kids' Environment, reported that the grants were denied. Neltner, whose group has led a strong push to protect children from lead hazards, said HUD last month awarded $168 million to 72 programs in 28 states.

    He said he found it odd that Indiana was locked out after recently completing a statewide Childhood Lead Poisoning Elimination Plan that was approved by the Centers for Disease Control and Prevention.

    Posted by Marcia Oddi on Monday, October 11, 2004
    Posted to Environmental Issues

    Sunday, October 10, 2004

    Law - More on electoral college

    "More on electoral math" was the heading of a September 14th ILB entry on Colorado's ballot initiative 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."

    An interesting AP story today by Ann Gearan is sub-headed "Court challenges likely if Colorado's Nov. 2 ballot measure passes." Some quotes:

    If the ballot initiative passes, Colorado will change the way it awards its nine Electoral College votes for president. The electoral votes would be apportioned according to the popular vote instead of all going to the candidate who comes in first.

    The change would take effect with this election, all but assuring an immediate court challenge. * * *

    If either candidate ends up just four or five electoral votes shy of victory this time, the election could hang on two questions from Colorado: Will the initiative pass and will it withstand a constitutional challenge almost certain to race to the nine Supreme Court justices in Washington.

    "Colorado could be the Florida of 2004," said Ted Halaby, chairman of the Colorado Republican Party and an opponent of the ballot measure.

    Proponents say the change, if adopted nationally, would prevent puzzling outcomes like the one of four years ago when Gore won more votes overall but lacked the Electoral College votes to claim the presidency.

    "It's simple we want every vote to be counted," said Julie Brown, director of the lobbying effort to pass the ballot initiative.

    Colorado's proposal is unlikely to be adopted in every state, at least in the short run. If upheld in court, however, similar ballot initiatives could be an attractive strategy for Democrats in particular states that tend to vote Republican, and for Republicans in states that tend to go Democratic.

    For example, Republicans could claim a share of California's enormous pot of 55 electoral votes that would otherwise go entirely to the Democratic presidential candidate, and Democrats could snatch some of the 34 electoral votes that Texas would otherwise award to the Republican candidate. * * *

    If the initiative passes, Colorado would become the third state to reject the winner-take-all approach, but its system would be unique. Two states, Maine and Nebraska, award electoral votes according to which candidate wins in each congressional district. Even with that system, all the electoral votes from those states have always gone to a single candidate.

    The Constitution sets up the Electoral College as a buffer between the popular vote and the White House, and gives states room to choose how they will select electors. That power, however, is given to state legislatures. There is no mention of whether voters could make the decision directly, as they would in Colorado by voting yes on the ballot question.

    A Supreme Court challenge would probably focus on whether the voters were an extension of the Legislature in this instance, a question that could, like the Bush v. Gore case in 2000, require the justices to decide matters of law and politics at once.

    The Miami Herald has an interesting piece headlined "Bush vs. Kerry could be replay of Bush vs. Gore." It begins:
    Anticipation of a close, exciting presidential election is mounting, so here's an election night scenario that rivals the ''hanging chad'' madness of 2000 in Florida:

    George Bush and John Kerry are neck and neck in the electoral vote count, with each just a few votes short of the magic number for victory: 270 electoral votes.

    Bush narrowly wins Colorado, which has 9 electoral votes, and that puts him over the top.

    But just as the networks are about to declare Bush the winner, word comes that Colorado voters have adopted little-noticed Amendment 36, scrapping the winner-take-all system -- starting with this election.

    The state's electoral votes are awarded by percentage of the popular vote. So instead of getting all 9 votes, Bush gets 5, Kerry gets 4 -- and Kerry squeaks in, until the first lawsuit is filed at midnight and armies of lawyers parachute into Denver to battle over the referendum.

    ''If that amendment passes, and the candidates are in the 265-275 range of electoral votes, it could be a legal nightmare,'' predicted Michael Kanner, a political scientist at the University of Colorado. "The courts could decide the election.''

    See also this story from the Chicago Tribune, headlined "Fit to be tied? A 50-50 electoral split isn't out of the question," that posits a number of scenarios.

    The Denver Post today takes a stand against "Amendment 36," in an editorial headlined "Don't divide electoral vote" that concludes: "The current Electoral system undoubtedly needs reform, but the proposal to allocate electors in proportion to the popular vote in this one state is not the answer."

    On the other hand, the Fort Wayne Indiana Journal Gazette has an editorial today titled "Split Indiana electoral votes" that concludes:

    Ideally, Congress would eliminate the Electoral College and let Americans select the president by popular vote. Considering that is unlikely to happen soon, Indiana lawmakers should give citizens more reasons to vote and begin the process of allowing Hoosiers to split their electoral votes.
    The is nothing in the Indiana Constitution about the choosing of electors. Instead, the U.S. Constitution, Article III, Section 1, clause 2, provides:
    Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number Constitution of the United States of senators and representatives to which the state may be entitled in the congress: but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
    (Also of interest are clauses 3 and 4.) And the Indiana statutes, at IC 3-8-4-2, provide that each parties' candidates for presidential electors shall be nominated at its state convention. Presidental elections are covered by IC 3-10-4. Thus, a change similar to that proposed in Colorado could be made in Indiana via the General Assembly.

    Finally, if you are in a listening mood, NPR's Weekend Edition this morning has a good "pros and cons" on the Colorado effort. Listen here.

    Posted by Marcia Oddi on Sunday, October 10, 2004
    Posted to General Law Related

    Indiana Courts - Allen Superior Court judge proposes "social map"

    Today's Fort Wayne Journal Gazette has this story, headlined "Judge proposes family road map," which begins:

    When Judge Charles Pratt steps up to his bench each morning in Allen Superior Court, hes armed with the knowledge of Fort Waynes myriad services for families and children.

    As a judge in the Family Relations Division of the Allen Superior Court who mainly handles abuse and neglect cases, Pratt knows where to send families in need of child care, counseling and parenting classes. But he doesnt know the specific social obstacles that confront the different families he sees on a daily basis.

    Knowing that children in a particular neighborhood dont use an area playground because it has become drug dealers turf or that a particular neighborhood has little or no transportation would keep Pratt better informed of the social barriers that might be confronting the families before him.

    That knowledge of the community isnt essential for Pratt to perform his daily duties as a judge, but he believes it could be a great tool to improve the service he provides to families. This quest for additional information has taken the form of a project Pratt calls social mapping.

    The idea is eventually going to be a communitywide project in which social issues, such as drug-dealing hot spots, areas lacking transportation or neighborhood bullies, will be plotted on a city and county map. Social services such as the location of counseling agencies or locations of free and reduced lunch programs available throughout Fort Wayne and Allen County will also be noted.

    Posted by Marcia Oddi on Sunday, October 10, 2004
    Posted to Indiana Courts

    Saturday, October 09, 2004

    Indiana Law - Change Constitution so that seven elected county offices could be abolished or appointed?

    "State commission looks at constitution change" is the headline to this AP story today. Some quotes:

    A state panel examining the structure of local government is considering the possibility of changing Indiana's Constitution so that seven elected county offices could be abolished or appointed.

    Sen. Marvin Riegsecker, a Goshen Republican who is chairman of the Local Government Efficiency and Financing Study Commission, said it is difficult to consider city-county mergers and consolidations without having any flexibility with the county offices.

    "As long as you are constitutionally prohibited you can't do anything," Riegsecker said. "This allows changes if Allen County or Vanderburgh County or anyone else would want to. It gives them something to work with."

    The offices that could be abolished or appointed are clerk of the circuit court, auditor, recorder, treasurer, sheriff, coroner and surveyor, The Journal Gazette of Fort Wayne reported.

    Four similar proposals would amend the constitution to allow the General Assembly to pass a law either abolishing or making those offices appointed.

    Different proposals also would give local county residents the opportunity to vote on any final changes to the offices locally.

    The Evansville Star-Press reports:
    INDIANAPOLIS - Four proposals to allow the Indiana Legislature to change county offices to appointed positions or to abolish them altogether were presented Friday to a commission charged with studying government efficiency.

    Posted by Marcia Oddi on Saturday, October 09, 2004
    Posted to Indiana Law

    Indiana Law - Most Indiana Counties Using Illegal Ballot Design?

    "Most Indiana Counties Using Illegal Ballot Design" is the headline to a story posted yesterday on the WISH-TV 8 site. Some quotes from the story:

    Voters in 90 Indiana counties will vote November second on ballots listing candidates by office. But an I-Team investigation exposes why counties that use the office-block ballot design are in violation of state law. * * * Marion and Green Counties are the only exceptions.

    Marion County's optical-scan machine ballots used to list candidates by office like those used in the May primary. But a lawsuit challenged that design.

    Now Marion Countys ballot lists candidates by party. Here's why: Indiana state law requires the party-column ballot layout, according to a July ruling by the Indiana Court of Appeals.

    The lawsuit was Doris A. Sadler, et al. v. State of Indiana, et al. (7/19/04 IndCtApp) [Election Law; Statutory Construction]. Access the July 19th ILB about it here (last case), including a link to the decision.

    WISH-TV's story continues:

    Jeff Cooper, a professor at Indiana University School of Law [with his own blog], specializes in legislative interpretation. It requires, pretty plainly as I read the statute, that candidates be set out in columns or rows according to their party affiliation, said Cooper. The statute made sense when Hoosiers used old lever machines to cast their votes.

    Of course, now, just about everybody is moving away from the lever machines, said Cooper. From punch-card ballots in Madison County to Johnson Countys optical-scan ballots to Hamilton Countys electronic ballots, all list candidates by office, not by party. [Click here to open WISH_TV story, with sample ballots, in a separate window.].

    It's okay to depart from the statutory scheme, as long as it's determined that following the statutory scheme isn't practicable, said Cooper. It all comes down to that one word: practicable. But what does it mean? Practicable is that which may be done, practiced or accomplished; that which is performable, feasible, possible, said Cooper.

    The statutes at issue, according to Sadler v. State, are:
    [IC] 3-11-2-5, which provides, The nominees of a political party or group of petitioners shall be listed on the ballots under the name and device of the party or petitioners as designated by them in their certificate or petition, or if none is designated, then under some suitable name or device. (Emphasis added.) This statute unambiguously mandates that the party-column format be the default setting for ballots in Indiana. * * * This mandate is not absolute, however. [IC] 3-11-2-10 acknowledges that variations in ballot arrangement for ballot card voting systems are permitted under [IC] 3-11-13-11. See [IC] 3-11-2-10(e) (Except for variations in ballot arrangement permitted for ballot card voting systems under IC 3-11-13-11, the list of candidates of the political party shall be placed immediately under the instructions for voting a straight party ticket.). [IC] 3-11-13-11 provides, The ballot information, whether placed on the ballot card or on the marking device should, as far as practicable, be in the order of arrangement provided for ballots under IC 3-11-2. (Emphasis added.) Under this statute, the legislature granted county election boards discretion to determine the practicability of placing ballot information in the order of arrangement specified in [IC] 3-11-2.

    Posted by Marcia Oddi on Saturday, October 09, 2004
    Posted to Indiana Law

    Friday, October 08, 2004

    Indiana Courts - More on Clark County seeks to hire judge

    Updating our entry from September 27th, the Louisville Courier-Journal reports today that:

    An effort to hire a temporary judge in Clark County got initial approval last night from the county commissioners.

    The Board of Commissioners voted 3-0 for a resolution to authorize $20,000 in emergency funding for the project. Its main goal is to decrease the crowding at the county jail in downtown Jeffersonville.

    Commissioner Vicky Kent Haire, the main proponent of the idea, said the temporary judge could work for any of the county's four courts, along with municipal courts in Jeffersonville, Clarksville, Sellersburg and Charlestown.

    A temporary judge would speed up the judicial process, reducing the time inmates must wait before they complete a plea bargain or show up for a bond hearing.

    The additional judge would be paid $25 a day for the work, which would be mainly on nights and weekends.

    "If they get one prisoner out, they'll pay for themselves," Haire said, adding that each inmate costs the county about $35 a day. "This is kind of a no-brainer." * * *

    Judge Steve Fleece of Clark Superior Court said the best solution to inmate crowding is the jail expansion, but he said he and other judges are "willing to try whatever else might help reduce the population."

    He said a number of attorneys probably would be willing to serve as a temporary judge despite the low pay, Fleece said, as a public service or as a steppingstone to a campaign for a permanent judgeship.

    Haire said that besides paying the judge, the county would have to provide money for a court reporter and security personnel.

    She had received favorable comments about the plan from Circuit Judge Daniel Donahue and from Prosecutor Steve Stewart.

    Scott Lewis, the commissioners' attorney, said the regular judges would be able to choose when to hire a pro-tem judge and how often to use the person. Multiple people could be hired, he said. Some of the judges already use pro-tem positions, he said, but they are paid out of the individual court budgets. * * *

    Creating another permanent position for a judge would be far more complex and expensive. The process typically involves a recommendation from a state court commission and a vote by the Indiana General Assembly.

    Jane Seigel, executive director of the Indiana Judicial Center, said she was not aware of other attempts in the state to reduce crowding through the hiring of pro-tem judges. "It's obviously a very creative approach," she said of Clark County's effort.

    Posted by Marcia Oddi on Friday, October 08, 2004
    Posted to Indiana Courts

    Indiana Law - Running for mayor in East Chicago

    The Munster Times reported this morning that "State prepares for skin-tight supervision of special E.C. mayoral election -- EAST CHICAGO POLITICS: Indiana Election Commission to vote today on 13-page plan to oversee Oct. 26 polling." Some quotes:

    EAST CHICAGO -- State election officials are ready to provide skin-tight surveillance of the Oct. 26 special election for mayor.

    The Indiana Election Commission has scheduled a vote this morning on a 13-page plan to supervise almost every aspect of absentee balloting, which got under way Sept. 27, and election-day polling.

    State Election Chairman Brian Burdick would direct a staff of six state monitors to report any violation of state election law to the Lake County prosecutor's office, the Indiana attorney general, state police and the U.S. Department of Justice for possible criminal action.

    The Justice Department already has orders to send its own staff of election examiners here, possibly making this the most closely scrutinized election in Northwest Indiana history. * * *

    The Indiana Supreme Court overturned Pastrick's May 2003 Democratic primary defeat of Pabey following evidence of widespread violations of state absentee voting laws committed by Pastrick's campaign workers.

    The high court appointed Special Lake Superior Court Judge Steven King to ensure a clean new election and King enlisted the Indiana Election Commission. Burdick drafted the state's plan. East Chicago would pay for its implementation.

    Posted by Marcia Oddi on Friday, October 08, 2004
    Posted to Indiana Law

    Indiana Law - Retention ponds secretly may have been deeded to town

    "Land ownership in question: Retention ponds secretly may have been deeded to town." That's the headline to this story today in the Munster Times. The town: Lowell. Some quotes:

    LOWELL -- The Town Council thinks the town may own more land than it knows, and that's not a good thing.

    The land in question makes up 12 of 26 retention ponds scattered throughout the town that town ordinances required of the developers.

    Lowell Director of Public Works Greg Shook has been directed by the Town Council to determine whether any of the ponds have been deeded over to the town without its knowledge and to ascertain ownership otherwise. * * *

    Concerns over retention pond ownership arose Sept. 27 when the council faced a quit claim deed for a retention pond that local developer John Black had signed over to the town without its knowledge.

    "It's a wild deed," Town Attorney John Kopack said at the time, advising the council to deny acceptance of the property.

    In declining to accept the property, Lowell Town Council President David Gard, D-5th, said, "Basically, the developer would like us to take it over, so he doesn't have to mow it and he doesn't have to pay taxes. ... He went to the county unbeknownst to us and gave it to us."

    Kopack cautioned that there may be other instances in which retention pond property has been deeded into the town's name, but not transferred officially to the town. For that reason, Shook will be checking on the deeds for retention ponds in Lake County records.

    Interesting. What about abandoned underground storage tank sites?

    Posted by Marcia Oddi on Friday, October 08, 2004
    Posted to Indiana Law

    Indiana Decisons - Three today from 7th Circuit

    USA v. Schreckengost, James (SD Ill.)

    Before EASTERBROOK, WOOD, and EVANS, Circuit Judges.
    EASTERBROOK, Circuit Judge. James Schreckengost removed the ink from genuine $5 bills with a chemical solution and used an inkjet printer to produce facsimiles of $100 bills on the blank sheets. These fakes had the feel of currency and could pass some tests employed to identify genuine bills. * * *

    The district court calculated the sentence by applying U.S.S.G. 2B1.1, the generic provision for frauds. According to the prosecutor, however, the district court should have used 2B5.1, which bears directly on counterfeiting. * * *

    A fake that includes genuine currency paper has not been falsely made or manufactured in its entirety, the district court held. It is instead an altered version of a genuine instrument. Accord, United States v. Inclema, 363 F.3d 1177 (11th Cir. 2004). * * *

    Well, is genuine currency paper derived from bills in circulation different from paper diverted before it reaches the Bureau? The answer is yes in both physical and legal senses. Bills are printed by an intaglio process under high pressure, so indentations remain even if the ink disappears. This leads to the legal difference: the Treasury Department treats bills from which all ink has been removed as currency, which it will replace with new notes. * * *

    The federal governments willingness to treat even an erased bill as a legal obligation of the Treasury shows that the paper remains an instrument and vindicates the district courts decision to sentence Schreckengost under 2B1.1.

    This outcome is unsettling, because it means a lower sentence for someone whose crime, being harder to detect than that of a counterfeiter who starts with plain bond paper, instead requires a higher sentence in order to preserve deterrence. * * *

    The Sentencing Commission may deem it wise to revisit this subject. As the Application Note stands, however, counterfeiters such as Schreckengost are beneficiaries, even if accidental ones.

    USA v. Lagiglio, Bonnie (ND Ill.)
    Before BAUER, POSNER, and MANION, Circuit Judges.
    POSNER, Circuit Judge. * * * A jury convicted Bonnie LaGiglio of conspiracy to impede collection of taxes by the Internal Revenue Service, 18 U.S.C. 371, an offense for which the federal sentencing guidelines prescribe a base offense level of 10; but, consistent with the guidelines, the judge increased LaGiglios offense level by a total of 11 because of the amount of the governments tax loss and LaGiglios use of sophisticated means to commit the crime, and sentenced her to 41 months in prison. * * *

    LaGiglio moved us to order her released pending appeal, arguing that Booker caps her sentence at 12 months and she has already been in prison that long. We directed the district judge to revisit his denial of her motion for release in light of the intervening decisions. He ruled that her sentence was unlawful under Booker and ordered her released, precipitating this appeal by the government.

    The government points out that LaGiglio is entitled to be released only if she is likely to be resentenced to a term of imprisonment shorter than the length of time that she will have been in prison by the time her appeal is decided. * * *

    The district judge did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the governments evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved. Should the judge be minded to release LaGiglio, he will have to consider the governments argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

    The motion for release is referred to the district court for further proceedings consistent with this opinion.

    Koszola, Kathleen v. Bd Educ City Chicago (ND Ill.)
    Before RIPPLE, MANION, and WOOD, Circuit Judges.
    WOOD, Circuit Judge. Kathleen Koszola sued the Board of Education of the City of Chicago under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., for refusing to hire her for a full-time teaching position because she is white. The Board moved for summary judgment at the close of discovery. Citing the dearth of facts in Koszolas submissions pursuant to Northern District of Illinois Local Rule 56.1, the district court granted the Boards motion. We affirm, as Koszola has provided no evidence showing that she may have suffered discrimination.

    Posted by Marcia Oddi on Friday, October 08, 2004
    Posted to Indiana Decisions

    Law - Do the noneconomic damage limits in many state malpractice laws violate equal protection?

    Another important article today not available online is one from the Wall Street Journal on medical malpractice, headlined "As Malpractice Caps Spread, Lawyers Turn Away Some Cases: Limits on Awards for Suffering Create New Impediments; Insurers Defend Changes." This piece makes a strong case that "the cap on noneconomic damages [present in many state laws] is a violation of the country's equal protection laws."

    The Journal writes that: "caps on damages for pain and suffering, or so-called noneconomic caps --[are] turning out to have the unpublicized effect of creating two tiers of malpractice victims. Cases involving high earners or big medical bills move ahead. Lawyers can still seek economic damages for the wages these patients lost or to pay for continuing medical bills. But lawyers are turning away cases involving victims that don't represent big economic losses -- most notably retired people, children and housewives ...."

    Indiana's law (please correct me if I'm wrong) does not make that distinction. See the limits set out in IC 34-18-14-3:

    (a) The total amount recoverable for an injury or death of a patient may not exceed the following:

    (1) Five hundred thousand dollars ($500,000) for an act of malpractice that occurs before January 1, 1990.

    (2) Seven hundred fifty thousand dollars ($750,000) for an act of malpractice that occurs:

    (A) after December 31, 1989; and

    (B) before July 1, 1999.

    (3) One million two hundred fifty thousand dollars ($1,250,000) for an act of malpractice that occurs after June 30, 1999.

    Posted by Marcia Oddi on Friday, October 08, 2004
    Posted to General Law Related

    Indiana Decisions - Transfer List for Week Ending October 8, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending October 8, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

    One case was granted transfer by the Supreme Court today:

    Fraternal Order of Police, et al. v. City of Evansville, et al (6/3/04 IndCtApp) [Statutory Interpretation]. (Access IBL summary and case link here.)
    Among the published cases denied transfer was:
    Indiana Insurance Company v. Patricia S. Dreiman, et al. (3/11/04 IndCtApp) [Insurance]
    Najam, J. "We address a single dispositive issue, namely, whether the trial court erred when it construed the term 'premises' to include a public roadway. We reverse." (Access ILB summary and case link here; 5th entry)

    Posted by Marcia Oddi on Friday, October 08, 2004
    Posted to Indiana Transfer Lists

    Indiana Courts - Rules changes now available; take effect January 1, 2005

    The orders of the Indiana Supreme Court, amending the various Indiana Rules of Court, have been posted online here. They take effect January 1, 2005.

    The current Indiana Rules of Court are available here.

    Several readers have written to me within the past few days, advising that the final versions of the rule amendments had been posted - thanks to all. I wanted to wait, however, until I could point to an article commenting on the amendments. Such an article is now available, written by Kelly Lucas of the Indiana Lawyer. It is the lead front-page article in the current (Oct. 6-19, 2004) issue. Unfortunately, it is not available online.

    The article focuses on the extensive revisions made to the Indiana Rules of Professional Conduct. It helpfully points out that the changes to the rules themselves are redlined, but the many changes to the comments are not.

    Changes highlighted in the article include client confidentiality, conflicts of interest, pro bono service, multi-jurisdictional practice, false statements, jury rules, and CLE.

    Lucas' article points out that Chief Justice Shepard, joined by Justice Dickson, dissents on the changes to Rule 3.3 of the Rules of Professional Conduct. This dissent may be found beginning at p. 147 of the revised Rules of Professional Conduct. A quote from the dissent:

    Since the American Bar Association first issued canons of ethics in 1908, and for at least that long in Indiana, a lawyer representing the defendant in a criminal case has had the same obligation that all of us lawyers have to promote the truth before the judge or jury. Lawyers have long thought that it both demeaned the profession and damaged the role of courts to present false evidence.

    That now changes. Todays amendments to Rule 3.3 add a striking command to
    existing practice by saying: A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. Put another way, lawyers who try cases are generally called upon to decide what evidence to present and how to present it, except that lawyers will now be obliged to put on the stand a client the lawyer believes will commit perjury. I think this is a bad idea for the profession and for the cause of justice. * * *

    The bench and bar are currently much focused on building public trust and confidence in the courts and the legal profession. A decision to compel lawyers to put before juries testimony they believe is perjured can only detract from those efforts.

    This change will also cause an important shift in the relationship between the criminal defendant and the defendants lawyer. Under the present rule, the lawyer who works to dissuade a client from testifying falsely possesses some considerable clout in the discussion because it is presently the lawyer, in the end, who decides whether to call the client to stand. Under the new rule, the client will know that this is not the lawyers call at all. If the client insists, the lawyer will be bound by the rule to assent and assist.

    I will try to see if I can post the Indiana Lawyer article.

    Michael Ausbrook of the INCourts blog also has written on the revision to Rule 3.3(a), his 10/7/04 post may be found here.

    Posted by Marcia Oddi on Friday, October 08, 2004
    Posted to Indiana Courts

    Thursday, October 07, 2004

    Indiana Courts - Running for judge in Delaware County

    Updating our entry from October 3 on the Muncie Star-Press stories about the Delaware Circuit Court race, including a story headlined "Judicial campaign marked by secretly taped conversation," is this afternoon's AP story on the Indianapolis Star site, headlined "Ex-sheriff quits courts job amid judge election flap." Some quotes:

    MUNCIE, Ind. -- A former Delaware County sheriff has resigned his job as a court bailiff amid accusations he urged an alleged stalking victim to publicly criticize the judge's opponent before the November election.

    Delaware Circuit Court bailiff Steve Aul said Wednesday he resigned because the controversy had become a "distraction" in Democratic Judge Marianne Vorhees' campaign.

    "I respect his decision," said Jeffrey Arnold, Vorhees' Republican opponent. "I know he and Marianne are very good friends and he has worked very hard on her campaign."

    Aul, a Democrat who was sheriff in 1992-2002, also resigned as campaign manager for Vorhees, who was appointed in 2002 by Gov. Frank O'Bannon. Vorhees said her father would take over as her campaign manager.

    See also this morning's report in the Muncie Star-Press.

    Posted by Marcia Oddi on Thursday, October 07, 2004
    Posted to Indiana Courts

    Not law but interesting - Chicago wins award for openess in government

    The Chicago Tribune elected to report the award in this manner this morning:

    Mayor Richard Daley, whose stealthy midnight raid last year resulted in the surprise shutdown of Meigs Field, accepted a first-place award Wednesday from a Washington-based group for openness in government.

    The Center for Digital Government cited the portion of the city's Web site that contains contract and vendor payment information, bestowing secondary awards on City Hall for the quality of Chicago's home page and an online database on problem buildings. * * *

    Steven Whitney, former president of Friends of Meigs, said he was stunned by the award. "The idea you could close a civic asset in the dead of night without notice and then claim openness in government is astonishing," he said. * * *

    Meigs was closed to help ensure downtown security at a time of concerns over terrorism and "on behalf of the lakefront," the mayor said. The airport since has been converted into a park.

    Pressed on why there was no announcement in advance and time provided for public debate, Daley replied, "It's called trial lawyers. It's called injunction immediately. ... They would enjoin you immediately in the federal court."

    The Federal Aviation Administration announced last week that the city faces a $33,000 fine and as much as $4.5 million in other penalties related to the shutdown.

    Daley also was asked why there continue to be city contracting scandals despite the public availability of information about contracts. "Human error and greed," he replied. "You see it every day. It is in the public and private sectors. That is why you have to do everything to make everything transparent."

    The City of Chicago itself announces the award here.

    The 1st place Center for Digital Government award referenced was in the Government-to-citizen category: Contract, Vendor and Payment Search Web Site, Chicago, Ill.

    Posted by Marcia Oddi on Thursday, October 07, 2004
    Posted to General News

    Indiana Decisions -7th Circuit posts two

    Sapoundjiev, Vassil v. Ashcroft, John

    Petition for rehearing denied.

    Properties Unlimited v. Cendant Mobility (ND Ill.)

    Before KANNE, ROVNER, and WOOD, Circuit Judges.
    WOOD, Circuit Judge. * * * Because Properties appeal was not filed in time, it is DISMISSED. As for the September 25 order that purported to clarify the order of July 24, the first thing to note is that Properties is not appealing from it as a separate matter, and thus the fact that its Notice of Appeal was filed within 30 days of that order makes no difference. To the extent that it has challenged the September 25 order as a standalone matter, we note that this order was entered under Rule 60(b), and we find no abuse of discretion in the district courts decision to adhere to its original rulings. Cendants cross-appeal from the February 19, 2003 order, which merely indicated that the judge had intended to vacate both the May 24 order and the May 28 docketed judgment, is moot in light of our decision on Properties appeal and is therefore DISMISSED on that basis. Costs on this appeal are assessed against Properties.

    Posted by Marcia Oddi on Thursday, October 07, 2004
    Posted to Indiana Decisions

    Law - Texas's decade-long experiment in school finance equalization judged a public policy disaster

    Economist Virginia Postrel has a column today in the NY Times about school finance equalization that deserves close reading. Some quotes:

    PUBLIC policy experiments rarely produce complete successes or total failures. They usually leave room for people with different goals or values to keep arguing.

    Occasionally, however, there's a policy disaster so catastrophic that everyone agrees that something has to change. California's convoluted attempt to deregulate electricity was one example. Texas's decade-long experiment in school finance equalization - universally referred to as Robin Hood - is another.

    "In less than a decade, the system is approaching collapse; it has exhausted its own capacity," write Caroline M. Hoxby and Ilyana Kuziemko, economists at Harvard, in a new working paper for the National Bureau of Economic Research. "We show that the collapse was predictable." (The paper, "Robin Hood and His Not-So-Merry Plan: Capitalization and the Self-Destruction of Texas' School Finance Equalization Plan," is available [here].) [Or you may access the 70-page paper directly at this link]

    As school budgets fall and property taxes rise, Texans know Robin Hood is in trouble. But most do not really understand why.

    Some blame the very idea of equalization, others say schools are too dependent on property taxes, and still others argue that taxes are too low. Some declare that schooling has simply become more demanding and expensive.

    "Although it is a financially efficient model, the current system, as it is now designed, cannot live up to the standards of our 'outcomes'-based accountability system," Lloyd Jenkins, a school district trustee in the Dallas suburb of Plano, recently wrote in The Dallas Morning News.

    In fact, argue the economists, the Robin Hood system is anything but financially efficient. Robin Hood does not just move money from rich school districts to poor school districts. It does so in a way that destroys far more wealth than it transfers, and that erodes the tax base on which school funding depends.

    "Our estimates suggest that Robin Hood caused Texas to lose a net of $27,000 per pupil in property wealth," write Professor Hoxby and Ms. Kuziemko, a doctoral student. That's real money. * * *

    The economists are quick to note that their critique is not a condemnation of redistributing school funds. Rather, it's a brief for bringing well-established principles of efficient taxation to bear on school finance. Transfers, Professor Hoxby argues, should be funded through a statewide tax, while local taxes pay for local amenities * * *

    "One of the principles of public finance is that having a high tax rate on a small base is very inefficient," she says, "whereas having a lower tax rate on a larger base is less distortionary."

    Just as ideological foes of electricity deregulation exploited the California experience to attack deregulation in general, some people opposed to redistribution on principle now point to Robin Hood. But just as California's complex system was not true deregulation, so Robin Hood does not represent the only way to transfer funds to poor school districts.

    What was the fundamental reason for the failure, according to Professor Hoxby and Ms. Kuziemko? "Lawyers, not economists, designed the system.''

    Posted by Marcia Oddi on Thursday, October 07, 2004
    Posted to General Law Related

    Indiana Law - Running for Surveyor in Indiana

    "Complaint against surveyor candidate rejected" was the headline to this story yesterday from Tri-State Media/Warrick County. Some quotes:

    A complaint filed against the Republican candidate for Warrick County Surveyor was dismissed in a 3-0 vote by the county election board on Oct. 1.

    The complaint, which alleged that Republican challenger Jim Niemeyer used misleading statements in campaign literature, had been lodged by incumbent surveyor Karan Barnhill and Warrick Democratic Party chairperson Rita Long. But the election board's three members said they did not see how Niemeyer had violated Indiana Election Law.

    The complaint alleged that Niemeyer had misrepresented himself as the current county surveyor. That claim centered around Niemeyer's web address, www.warricksurveyor.com--a campaign ad for Niemeyer--as well as a line of the website, billboards and other material encouraging voters to 'Vote experience'. Barnhill says that all of the campaign materials produced by Niemeyer have been an attempt to mislead the public into believing Niemeyer already holds a public office, a violation of Indiana Code 3-9-3-5.

    "It is misrepresentation to the public," said Barnhill. "They see 'Vote Experience'. They see the website. And it leads them on first impression to believe that he is the county surveyor. That's what this is all about." Barnhill claimed that because the position of county surveyor is not a high-profile job, many voters don't know who the current surveyor is. She says she's talked with many members of the public that were confused by Niemeyer's ads. "And in my opinion, it was intentional," said Barnhill. "He was trying to mislead the public so that he could get more votes." * * *

    The county election board--which consists of the county clerk, Shannon Weisheit, as well as Republican Deryl Dyhouse and Democrat Mary Quinzer--sided with Niemeyer, saying that nothing in the campaign advertisements was blatant enough for fines to be imposed. "It's out of our hands as far as I am concerned," said Dyhouse.

    The election board had originally passed the complaint along to the Warrick Prosecutor's office, which had in turn requested a special prosecutor in the matter. However, Warrick Circuit Court Judge David Kelley denied the request for a special prosecutor and sent the matter back to the election board. * * *

    Weisheit says the decision for the board was made more difficult because Indiana Code 3-9-3-5 was adopted just last year and is not well defined. "I just think this is a really gray area," said Weisheit. "The legislation was not written very specifically. This is a new law, and it has never been tested before. I really do feel that this is bad legislation because it is so vague."

    Posted by Marcia Oddi on Thursday, October 07, 2004
    Posted to Indiana Law

    Indiana Courts - More on Upcoming oral arguments before the Indiana Supreme Court and the Court of Appeals

    Updating our post from Tuesday, the Supreme Court calendar and the Oral Arguments Online sites now agree on the following items in the upcoming calendar.

    Note: Where the ILB has previously posted an entry and case link (generally this would be whenever the Court of Appeals decision was available online), the information may be accessed by clicking on the case name

    Thursday, Oct. 7, 2004
    9:00 am - Litchfield v. State of Indiana (Court's Summary) [Motion to Suppress]
    9:45 am - Dicen v. New Sesco (Court's Summary) [Employment Law; Contracts]

    Tuesday, Oct. 19, 2004
    9:00 am - Coca Cola Company v. Babybacks International, Inc. (Court's Summary) [Contract]
    9:45 am - Federated Rural Electric v. Nat'l Farmers (Court's Summary) [Insurance]
    10:30 am - Kimberly Ham v. State (Court's Summary) [Criminal L&P]

    Wednesday, Oct. 27, 2004
    9:00 am - St. Margaret Mercy Healthcare Centers, Inc. v. Barbara Poland (Court's Summary) [Court of Appeals argument] [Torts]

    Thursday, Nov. 4, 2004
    9:00 am - Maurice Smith v. State of Indiana (Court's Summary) [Criminal L & P; Constitutional Law]
    9:45 am - Brownsburg Comm School v. Natare Sum (Court's Summary) [Statutory construction]

    Wednesday, November 10, 2004
    9:00 am - Bruce Grant Heath v. State and Adolphe Smylie v. State (Court's Summary) [Criminal L & P; Constitutional Law] Note: These are the cases considering the application of Blakely v. Washington to state court sentencing.

    Tuesday, Nov. 23, 2004
    9:00 am - Nagy v. Evansville-Vanderburgh School Corp. (Court's Summary) [Constitutional Law]

    Posted by Marcia Oddi on Thursday, October 07, 2004
    Posted to Indiana Courts

    Law - Supreme Court hears important Superfund case

    "Supreme Court Debates Pollution Cleanup Lawsuits" is the headline to this AP story by Gina Holland about yesterday's oral argument in the case of Cooper Industries, Inc. v. Aviall Services, Inc., an appeal from the 5th Circuit Court of Appeals (Nov. 14, 2002). (Access summary and links here.) Some quotes from the AP story:

    The Supreme Court considered Wednesday whether companies that voluntarily seek to clean up their polluted land can sue former owners to get help with the costs. The case could have important ramifications for communities with abandoned toxic plants, landfills and mines.

    Federal law allows the Environmental Protection Agency to designate as "Superfund" sites areas that are highly polluted. Officials can seek money from current and former owners for the cleanup costs.

    The case before the justices asks whether the Superfund law can be used by the owners of the many thousands of properties in which the government has not gotten involved and demanded cleanup. * * *

    The case has pitted the Bush administration against 23 states that argue the Superfund law, passed in 1980, allows lawsuits when companies on their own initiative seek to clean their properties. Those efforts often are very expensive, and can involve multiple former owners. * * *

    At issue for the court is a dispute over property in Dallas that had been home to four aircraft engine maintenance businesses.

    Aviall Services Inc. bought the land in 1981 and spent about $5 million cleaning pollution it caused and that the former owner was responsible for. The work was done at the prodding of a state conservation agency, and Aviall went to court to recover some of the money from the past owner, electrical product- maker Cooper Industries.

    Aviall attorney Richard Faulk of Houston said Wednesday that "standing in line" waiting for federal regulators to get around to the project wasn't an option because of concerns about a nearby lake and groundwater.

    Cooper Industries lawyer William Reynolds of Washington said government involvement is needed to ensure a thorough cleanup.

    The 5th U.S. Circuit Court of Appeals in New Orleans ruled that Aviall could sue, though the court said that "reasonable minds can differ over" the Superfund law because of its inexact grammar. * * *

    The states that asked the high court to uphold the lower court decision were: Arizona, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Massachusetts, Michigan, Missouri, Montana, Nevada, North Dakota, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Washington, Wisconsin and Wyoming.

    Posted by Marcia Oddi on Thursday, October 07, 2004
    Posted to General Law Related

    Wednesday, October 06, 2004

    Indiana Courts - New Supreme Court Administrator appointed

    According to an announcement just released by the Office of the Supreme Court of Indiana:

    ATTORNEY KEVIN SMITH NAMED SUPREME COURT ADMINISTRATOR

    Kevin S. Smith, an attorney with Baker & Daniels and a former law clerk to Chief Justice Randall T. Shepard, has been appointed as the new Supreme Court Administrator, the Chief Justice announced today.

    Mr. Smith, who was a law clerk for Chief Justice Shepard from May 1996 to December 1997, will begin work October 25, 2004. Following his clerkship with the Indiana Supreme Court he served as a law clerk for Judge Alice M. Batchelder of the Sixth Circuit United States Court of Appeals and then worked as an associate attorney with Bose McKinney & Evans LLP, of Indianapolis, before joining Baker & Daniels Indianapolis office in May 2000.

    Chief Justice Shepard said he is pleased Mr. Smith was returning to the Court. The Court has been especially fortunate to have assistance in its appellate work from a staff of very talented lawyers and we expect Kevin Smith will supply sound leadership to our Administrators office of that same caliber, said Chief Justice Shepard.

    Mr. Smith replaces Douglas E. Cressler, who left the Court last June to take a new position as Deputy Administrator for the federal Tenth Circuit Court of Appeals in Denver, Colorado.

    The Supreme Court Administrator works at the direction of the Chief Justice and serves as the Courts chief appellate counsel, manages a legal and administrative staff, maintains statistical and physical records, as well as providing much of the payroll, benefit, budget and day-to-day operational management for the Court.

    Mr. Smith graduated near the top of his class from Indiana University with a degree in Business and a minor in English in 1992. In 1996, he graduated magna cum laude from Indiana University School of Law-Bloomington where he was Notes and Comments Editor for the Indiana Law Journal and a member of the Order of the Coif.

    At Baker & Daniels, he was a member of the Labor and Employment Team, which included representing employers in litigation involving state and federal and employment discrimination and workers compensation statutes at both the trial and appellate levels.

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to Indiana Courts

    Law - Hundreds of Women Jurists in Indianapolis Tomorrow

    According to a notice just released by the Office of the Supreme Court of Indiana:

    NATIONAL ASSOCIATION OF WOMEN JUDGES TO MEET IN INDY

    Indianapolis, Ind. The 26th annual meeting of the National Association of Women Judges will meet in Indianapolis Oct. 7-10, 2004 for their 26th annual conference and involve hundreds of women jurists.

    Judges from nearly every state and several foreign countries are expected at the conference, which has been titled, At the Crossroads."

    Indiana Court of Appeals Judge Margret G. Robb, who is the general conference chair, said dozens of people have spent much of the last two years preparing for the event.

    The contributions we have received from the legal community and our other friends have been immense. I cannot tell you how many volunteer hours have been spent getting ready for what I know will be an outstanding conference. We are proud of our educational planning and the chance to show off Indianas capital city, said Judge Robb.

    Among the conference highlights will be discussions on the Globalization of Decision Making and The Globalization of Human Rights, along with breakout sessions on Decision-making Without A Constitution, Social Change Moving the Law, Project Innocence, Co-dependency of Medical and Legal Issues, Addressing Racial, Cultural, Gender and Pro Se Issues, Specialized Courts and Programs, Book Publishing by Judges, and Judicial Independence.

    For more information, see the NAWJ "At the Crossroads" site.

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to General Law Related

    Indiana Decisions - Six today from the Court of Appeals

    Franciso Corralez v. State of Indiana (10/6/04 IndCtApp) [Criminal L & P]
    Mathias, Judge

    Francisco Corralez (Corralez) pled guilty to Class D felony criminal recklessness in Lake Superior Court. Corralez appeals his sentence, raising the following restated issues for review: Whether the trial courts finding of sentencing aggravators and mitigators constituted an abuse of discretion; and, Whether Corralez sentence is appropriate. Concluding the trial court did not abuse its discretion and Corralez sentence is appropriate, we affirm. * * *

    Corralez finally contends the trial court erred when it considered the fact he was initially charged with reckless homicide as an aggravating factor. To the extent the trial court relied upon this consideration, we reject it. However, the trial court may take into account the facts surrounding Corralez crime. Accordingly, the trial courts decision to issue an aggravated sentence was supported by the consideration that a person not only died as a result of Corralez recklessness but suffered for fourteen days before dying. Under these facts and circumstances, the trial court did not abuse its discretion when it sentenced Corralez. * * *

    Corralez was on bond at the time of the commission of the offense at bar, a woman suffered and died as a result of Corralez recklessness, and the trial court did not sentence Corralez to the maximum sentence. In light of such evidence, Corralez sentence was appropriate.

    Conclusion. The trial court did not abuse its discretion, and Corralez sentence was appropriate. Affirmed.
    DARDEN, J., and FRIEDLANDER, J., concur.

    Raymond E. Mallard v. State of Indiana (10/6/04 IndCtApp) [Criminal L & P]
    Mathias, Judge
    Raymond Mallard (Mallard) was convicted of Class B felony criminal confinement See footnote and Class D felony impersonation of a public servant in Elkhart Superior Court. He appeals and argues that the evidence was insufficient to support his conviction for Class B felony criminal confinement. Concluding that the victim was confined while Mallard was armed with a deadly weapon, we affirm. * * *

    To convict Mallard of Class B felony criminal confinement, the State was required to prove that Mallard knowingly or intentionally confined Colalillo without her consent while armed with a deadly weapon. See Ind. Code 35-42-3-3 (1998 & Supp. 2003). The term confine means to substantially interfere with the liberty of a person. Ind. Code 35-42-3-1 (1998). Mallard argues that the evidence was insufficient to support both his criminal confinement conviction and the Class B felony enhancement. Specifically, he contends that Colalillo was never confined in her vehicle and a deadly weapon was never used during the commission of the alleged crime. * * *

    There is no case in Indiana directly addressing this issue; however, our decision in Gresinger v. State, 699 N.E.2d 279 (Ind. Ct. App. 1998), trans. denied, is instructive. * * * Similarly, in this case, although Mallard never threatened Colalillo or used the loaded handgun during the commission of the offense, the weapon was in his pocket at all relevant times and a jury could reasonably conclude that Mallard could have used the handgun as a deadly weapon.

    More importantly, under the plain language of the statute, the State is only required to prove that the defendant committed the offense of criminal confinement while armed with a deadly weapon. Ind. Code 35-42-3-3(b)(2)(A). The statute does not require the State prove that a deadly weapon was used during the commission of the offense. We can reasonably infer that our General Assembly considered the heightened risk to a confined victim if the perpetrator is armed with a deadly weapon when it determined that a Class B felony enhancement was warranted in such cases. Accordingly, we conclude that the State was only required to prove that Mallard was armed with a deadly weapon, and therefore, the evidence is sufficient to support his Class B felony confinement conviction. Affirmed.
    DARDEN, J., and FRIEDLANDER, J., concur.

    Daniel K. Beach v. State of Indiana (10/6/04 IndCtApp) [Criminal L & P; Evidence]
    Barnes, Judge
    * * * The sole issue is whether the trial court properly admitted hearsay evidence under the excited utterance exception of Indiana Evidence Rule 803(2). * * *

    Beach argues that J.D.s hearsay statements to Officer Frolick were inadmissible for three reasons: they were not excited utterances pursuant to Indiana Evidence Rule 803(2); their admission violated his Sixth Amendment rights as recently defined by Crawford v. Washington, -- U.S. --, 124 S. Ct. 1354 (2004); and their admission violated his right to confrontation under both the United States and Indiana Constitutions because J.D. was present in the courtroom and available to testify, but the State declined to call her as a witness. We will not address J.D.s first and second arguments in detail, aside from noting that this court recently held that statements such as the ones J.D. made in this case fall outside the realm of testimonial hearsay statements governed by the new rule announced in Crawford, which requires the defendant to have had an opportunity for cross-examination before such statements may be admitted. See Hammon v. State, 809 N.E.2d 945, 950-53 (Ind. Ct. App. 2004); Fowler v. State, 809 N.E.2d 960, 962-65 (Ind. Ct. App. 2004). We find the admission of the statements to be harmless and Beachs conviction to be supported by substantial independent evidence of guilt. * * * Affirmed.
    NAJAM, J., and SULLIVAN, J., concur.

    Taflinger Farm, et al v. John Uhl (10/6/04 IndCtApp) [Property; Attorney Fees]
    Sharpnack, Judge
    [The Taflingers] appeal the trial courts dismissal of their complaint against John Uhl for ejectment and to quiet title. The Taflingers raise two issues and Uhl raises one issue, which we consolidate and restate as: Whether the trial court erred by dismissing the Taflingers claims because they failed to present evidence on the description of the property at issue; and Whether Uhl should receive appellate attorney fees. We affirm. * * *

    Left with the testimony at trial, which described the disputed property as a kind of rough old farm with a fence, the evidence is insufficient to provide a description of the premises and inadequate to provide sufficient means to identify a definite and specific tract. Gilbert v. Lusk, 123 Ind. App. 167, 178, 106 N.E.2d 404, 410 (1952). Consequently, the trial court did not err by dismissing the Taflingers claims. See, e.g., Boyer v. Robertson, 144 Ind. 604, 43 N.E. 879 (1896) (holding that judgment for plaintiff will be set aside in an ejectment action where neither the complaint nor the findings of the jury supply facts sufficient from which a judgment could be rendered containing a sufficient description of the real estate). * * *

    The second issue is whether Uhl should receive appellate attorney fees. Ind. Appellate Rule 66(E) provides, [t]he Court may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the Courts discretion and may include attorneys fees. Our discretion to award attorney fees is limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. * * * Because Taflinger supported his challenge with pertinent legal authority from which an argument could have been made, we do not find Taflingers contentions utterly devoid of all plausibility. * * * For the foregoing reasons, we affirm the trial courts grant of Uhls motion to dismiss, and we deny Uhls request for appellate attorney fees. Affirmed.
    BAILEY, J. and MAY, J. concur

    In Re: Contempt Against Troy Cudworth (10/6/04 IndCtApp) [Criminal L & P]
    Mathias, Judge
    Troy Cudworth (Cudworth) was held in contempt in Tippecanoe Superior Court. Cudworth appeals, raising the following restated issues for review: Whether the trial courts finding of contempt was erroneous; and Whether Cudworths sentence is appropriate. Concluding the trial court did not err and Cudworths sentence is appropriate, we affirm. * * *

    A witness may be compelled to testify where a grant of immunity places the witness in substantially the same position he would be in had he exercised his right to remain silent. Furrer v. State, 709 N.E.2d 744, 746 (Ind. Ct. App. 1999) (citing Kastigar v. United States, 406 U.S. 441, 453 (1972)). Cudworths immunity provided him with protection co-extensive with his privilege against self-incriminationincluding protection against the use of his testimony in Clinton County. Accordingly, the trial court was permitted to compel Cudworth to testify under the threat of contempt. * * *

    Cudworth requests this court to reduce his sentence. * * * At the heart of Cudworths request is his claim that his six-month sentence is the maximum sentence the trial court was allowed to give him in the absence of a jury verdict.* However, had Cudworth had access to a jury, he would have been exposed to a more severe sentence. The lack of a jury adjudication does not speak to Cudworths character or the nature of Cudworths offense. Accordingly, Cudworths claim that he received the maximum possible sentencethough trueis somewhat deceiving.

    Cudworths repeated refusal to testify had a disruptive effect on Waldons trial and was an affront to the dignity of the trial court. The nature of Cudworths contempt renders his six-month sentence appropriate.

    Conclusion. The trial court did not err in finding Cudworth in contempt and refusing to reconsider. Further, Cudworths six-month sentence was appropriate. Affirmed.
    DARDEN, J., and FRIEDLANDER, J., concur.
    _____
    *Because Cudworth concedes he was not entitled to a jury determination on the basis of a six-month contempt sentence, the Supreme Courts recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), is inapplicable to the issue at bar.

    Darrel G. Erb v. Shirley A. Erb (10/6/04 IndCtApp) [Family Law]
    Mathias, Judge
    Darrel and Shirley Erbs marriage was dissolved in Pulaski Superior Court. Darrel appeals raising several issues; however, we conclude that the trial courts findings are insufficient to permit meaningful appellate review. Therefore, we remand this case to the trial court with instructions to include in its findings a more detailed calculation and division of the marital estate. * * *

    In dissolution proceedings in cases involving marital estates with considerable assets and debts, the trial courts careful calculation of the net martial estate in its findings of fact and conclusions of law facilitates our review on appeal. In this case, the trial court failed to include such a calculation in its findings. Utilizing the trial courts findings, we have attempted to calculate the net marital estate, but are unable to determine how the trial court reached its total of $1,492,742. * * *

    Remanded for proceedings not inconsistent with this opinion.
    DARDEN, J., and FRIEDLANDER, J., concur.

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts four today

    Kriescher, Judith v. Fox Hills Golf Resort (ED Wis.)

    Before FLAUM, Chief Judge, and MANION, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Judith Kriescher worked for the Fox Hills Golf Resort from 1981 until 1994 and then again from 1996 until she was fired in 1999. After she was fired Kriescher sued the resort under Tile VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., alleging age and sex discrimination in the forms of a hostile work environment and discriminatory discharge. The district court determined that Krieschers hostile environment claim could not survive summary judgment because she offered no evidence that her workplace was permeated with discrimination, intimidation, or ridicule on the basis of her age or sex. The district court also granted summary judgment to the defendants on Krieschers disparate treatment claim because she had not offered any evidence that she was treated differently than similarly-situated employees. * * *

    The district court thought that Kriescher had failed to identify any such employees, and on appeal she barely even discusses the prima facie case, choosing instead to focus on pretext. Kriescher asserted that Reese and Peters violated resort rules, but she has offered no evidence that her duties were the same as theirs or that their alleged rule violations were comparable to her conduct of telling the security guards to gather information about other managers. Identifying similarly situated employees is an essential piece of the prima facie case, and without this evidence Krieschers claim must fail. We thus AFFIRM the judgment of the district court.

    Great West Casualty v. Nat'l Casualty Co (SD Ind., Judge McKinney)
    Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.
    CUDAHY, Circuit Judge. Sometimes it feels as if the only thing that purchasing insurance actually ensures is that one will eventually have an unpleasant dispute with the insurer over payment on a claim. In this case, Lynn Elevator (Lynn) sold a tractor (as in tractor-trailer) to Bogue Enterprises (Bogue) under a conditional sales agreement, wherein Lynn would hold title and registration to the tractor and Bogue would have to comply with a number of restrictions on the use of the tractor until it had completed payment. Predictably (given that the parties are here in court) Bogue got into an accident while driving the tractor. Lynns insurer, Great West Casualty Company (Great West), sought a declaration that it was not responsible for providing coverage because Lynn did not own the tractor at the time of the accident. The district court granted Great Wests motion for summary judgment, and this appeal followed. * * *

    The Great West policy, however, makes clear that it only covers borrowed or hired tractors while they are being hired or borrowed by or from the insured. * * * Both parties agree that this accident did not occur while the tractor was hired or borrowed by Lynn. For these reasons, National Casualtys argument fails and we AFFIRM the decision of the district court.

    Harkins, John v. Riverboat Services (ND Ill.)
    [This entertaining decision concerns overtime pay under the Fair Labor Standards Act on a "riverboat" ported at East Chicago, Indiana, on Lake Michigan.]
    Before FLAUM, Chief Judge, and BAUER and POSNER, Circuit Judges.
    POSNER, Circuit Judge. * * * We can ask the question this way: do the plaintiffs spend their time performing duties that are necessary to the operation of the Showboat because it is a ship or because it is a casino? See Donovan v. Nekton, Inc., supra, 703 F.2d at 1150-51. A blackjack dealer does not become a seaman by virtue of leaving his job at Harrahs land-based casino and taking a job at Harrahs riverboat casino, but likewise a helmsman does not cease to be a seaman because he transfers to a casino boat that spends most of its time moored. It was for the jury to decide whether the three plaintiffs whose overtime claims survived to trial were more like the helmsman than like the blackjack dealer.
    Anderer, Joseph R. v. Jones, Arthur (ED Wis.)
    Before POSNER, COFFEY, and WILLIAMS, Circuit Judges.
    WILLIAMS, Circuit Judge. Joseph R. Anderer, Jr. is a former Milwaukee police officer who was arrested for physically abusing a child. Though he was not prosecuted, Anderer was terminated following an internal affairs investigation into this incident. Anderer sued the police chief, other officers involved in his arrest, and the City of Milwaukee for violating his Fourth Amendment rights by arresting him without probable cause, and for terminating his employment after his representative spoke out against the arrest and Anderer filed this lawsuit. Finding that probable cause existed at the time Anderer was arrested and that the speech at issue was not protected by the First Amendment, the district court granted summary judgment to defendants. We agree with the district courts decision and affirm. ***

    COFFEY, Circuit Judge, dissenting. Joseph Anderer, a recently discharged Milwaukee police officer, argues on appeal that his constitutional rights were violated when he was arrested, booked and detained, and subsequently terminated from his employment (3.5 years) on the orders of Chief Arthur Jones of the Milwaukee Police Department (MPD), based almost exclusively on the fabricated story of an incorrigible and psychotic juvenile, without a scintilla of corroborating evidence. The majority attempts to defend his arrest and refuses to accept Anderers contention and argumentwhich finds full support in the recordthat his accuser, an out-of-control juvenile named JR, who also maliciously created another fabricated accusation against a second officer stating that he had raped him, was likewise wholly incredible. * * *

    [p. 93] Perhaps the majoritys ill-advised and less than complimentary statement insisting that my detailed discussion of the facts exonerating Anderer, combined with the inadequacy of the MPDs investigation might present a persuasive closing argument, Opinion at *11 n.9, merely reflects the depth of their frustration over the fact that they are unable to overcome the overwhelming evidence of Anderers lack of culpability and the important Constitutional questions raised in my dissent.
    [Note - This opinion is 94 pages long; Judge Coffey's dissent begins on page 17.]

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to Indiana Decisions

    Law - Building a Supreme Court practice

    Tony Mauro of The Amercian Lawyer has an interesting article today about building a Supreme Court practice, titled "The Key to the Court." It begins:

    The 164-year-old law firm Baker Botts is known for many things, but a significant U.S. Supreme Court practice has not been one of them. Which is why, when the firm announced in July that it had hired three Supreme Court clerks fresh out of their year at the Court -- with the possibility of a fourth and fifth clerk coming over too -- it came as a considerable surprise. Most of the veteran Supreme Court firms consider themselves lucky if one or two clerks sign on in a given year. So why would three or more clerks who could write their own tickets at almost any firm choose to climb aboard at Baker Botts?

    The answer goes back nearly five years and tells the story of how a venerable law firm goes about launching a Supreme Court practice, even at a time of fierce competition for a shrinking number of cases. It also shows how, in the process, a firm can rejuvenate and energize a prestigious part of its business. The next generation of top Supreme Court advocates may be assembling at Baker Botts.

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to General Law Related

    Law - Statutory construction in the news

    Talk about watching paint dry! But really, Charles Lane of the Washington Post had an interesting column yesterday titled "Definition of 'Subparagraph' Is Debated in Court." Some quotes:

    Federal regulation of the $2 trillion consumer credit industry may hinge on how the Supreme Court chooses to interpret a single word.

    That became clear after an oral argument yesterday in which attorneys for a Washington area used car dealer and a disgruntled customer sparred over the meaning of "subparagraph" in the Truth in Lending Act, a federal law that prescribes penalties in cases of unfair or misleading practices by businesses that provide car loans, consumer leases and mortgages. * * *

    Though the argument sometimes resembled a class on grammar and usage more than a legal case, Koons Buick Pontiac GMC Inc. v. Nigh, No. 03-377, is no mere matter of semantics. * * *

    The argument yesterday showed the court to be as divided as ever over how to interpret disputed statutory language.

    Nigh's strongest supporter seemed to be Justice Antonin Scalia, who has long advocated a "textualist" approach to statutory interpretation that discounts legislative history and other evidence beyond the plain wording of a statute.

    When Ayer argued that the legislative drafting manuals Congress uses assigned "subparagraph" a meaning consistent with his client's position, Scalia interjected: "I don't want to have to go through the legends of the legislative process every time I interpret a statute."

    Ayer responded that the meaning of "subparagraph" had not been changed by any of the amendments TILA had gone through in the last 30 years.

    But Scalia was countered by Justice Stephen G. Breyer, who described his own method this way: "When I read a statute, I first approach it as an English-speaking Martian would," he told Blankingship. "If I did so in this case, I'd agree with you. But the language does support [Koons's] position in that it is a possible reading. [And] if you factor in the history . . . by the time I'm finished I'm ready to abandon the English-speaking Martian, and I'm looking for the human purpose under the statute."

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to General Law Related

    Law - More on running for judge

    Last Saturday we posted this entry on "Running for judge in Kentucky and Indiana," quoting from a Louisville Courier-Journal story detailing how conservative groups were going to federal court in Indiana and Kentucky challenging judicial codes of conduct that "judicial candidates shall not make pledges or promises other than to perform their duties impartially, and that they shall not make statements 'that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.'"

    Yesterday an AP story in the Bismark ND Tribune, headlined "Group challenging judicial speech restrictions," reported:

    A group that wants North Dakota judge candidates to answer questions about abortion, homosexuality and school prayer is suing to block judicial conduct rules that it says prevent the candidates from replying.

    The North Dakota Family Alliance filed the lawsuit in U.S. District Court in Fargo, its director, Christine Rondeau, said Monday. The group contends some of North Dakota's judicial conduct rules are unconstitutional because they infringe on the free-speech rights of judges and attorneys who are running for judgeships.

    The lawsuit names 34 defendants, including members of North Dakota's Judicial Conduct Commission and the state Bar Association's inquiry committee, which investigates alleged infractions of rules that govern the conduct of lawyers. * * *

    The lawsuit is being handled by a Terre Haute, Indiana, law firm that successfully represented the Minnesota Republican Party two years ago in a U.S. Supreme Court dispute over judicial speech. The high court's ruling in the case, called Republican Party v. White, gave candidates for judicial office more leeway to discuss issues during campaigns.

    An attorney in the Minnesota case, James Bopp Jr., said North Dakota did not change its judicial conduct rules in response to the Supreme Court's decision. As a result, judge candidates could be disciplined for making statements that the high court's ruling allows, Bopp said.

    Access the case referenced, Republican Party of Minnesota v. White (6/27/02), here.

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to General Law Related

    Environment - Coal ash is an issue again, this time in Marion County

    "Critics: IPL's plan to use ash as fill is risky: Utility disputes the charge that putting coal ash in a flood plain could foul waterways," is the headline to this story today in the Indianapolis Star. Some quotes from the story:

    A plan to fill a Perry Township floodway with 50,000 tons of ash from a coal-burning power plant is drawing protests from environmentalists who fear it could contaminate local waterways. But officials from Indianapolis Power & Light Co., which has applied for a permit from the Indiana Department of Natural Resources to fill an area along Highland Creek on company property, said it is safe. "My contention is that ash, when managed properly, can be used in the right type of setting as structural fill," said Dwayne Burke, IPL's director of environmental affairs. * * *

    But Brian Wright, coal policy adviser at the Hoosier Environmental Council, said filling a flood plain with coal ash -- which contains heavy metals and other materials that can be toxic to wildlife and fish -- is risky. Highland Creek flows into Lick Creek, to the south of the proposed fill area. Lick Creek flows into White River. "It is irresponsible to place it in any quantity in a floodway without any environmental controls to prevent contamination," said Wright, who spoke against the permit at a public hearing Tuesday night.

    The controversy illustrates big differences in how coal ash -- hundreds of thousands of tons of which are generated by Indiana electric utilities every year -- is regulated by the state.

    The Indiana Department of Environmental Management, which issues permits for landfills, considers coal ash a restricted waste because it can contaminate groundwater, and requires that ash landfills have a clay barrier.

    But state law exempts coal ash from environmental regulations if it is being used as structural fill material -- even if it's in a floodway -- or if it's dumped back into a coal mine.

    The DNR, not the environmental agency, issues permits to fill floodways and mines, and has no guidelines on how ash should be handled to prevent environmental damage.

    The Indiana Law Blog has posted a number of stories about the regulation of coal ash this year, including the following: Coal Ash (2/10/04); Followup on Coal Ash (2/15/04); Town of Pines (Indiana) groundwater contamination the subject of national report (4/22/04); Disposal of coal ash in strip mines questioned (4/25/04). For others, use the search box in the right column.

    Posted by Marcia Oddi on Wednesday, October 06, 2004
    Posted to Environmental Issues

    Tuesday, October 05, 2004

    Environment - Stories today

    "Dairy CAFO permit contested" reports the headline to this story in the Muncie Star-Press. Some quotes:

    WINCHESTER - Members of Environmentally Concerned Citizens of Randolph County announced Monday they would appeal the state's issuance of a permit to Tony Goltstein to build a 1,650-cow dairy CAFO (concentrated animal feeding operation).

    In making the announcement, the group noted that the U.S. Environmental Protection Agency last week confirmed that five northwest Ohio dairy CAFOs associated with Vreba-Hoff Dairy Development have been accused of violating the Clean Water Act.

    ECCRC claims the site Goltstein chose for the dairy southwest of Winchester is inappropriate for a dairy CAFO that includes a 7.2-acre, 20-million-gallone manure lagoon because of seasonal high water tables, shallow residential water wells nearby, and proximity to Sparrow Creek.

    "Whiting refinery cited by EPA:: Agency alleges illegal discharge of lead, cadmium" is the headline to this story in the Munster Times today.

    The Washington Post reports today that:

    Cities across the country are manipulating the results of tests used to detect lead in water, violating federal law and putting millions of Americans at risk of drinking more of the contaminant than their suppliers are reporting.

    Some cities, including Philadelphia and Boston, have thrown out tests that show high readings or have avoided testing homes most likely to have lead, records show. In New York City, the nation's largest water provider has for the past three years assured its 9.3 million customers that its water was safe because the lead content fell below federal limits. But the city has withheld from regulators hundreds of test results that would have raised lead levels above the safety standard in two of those years, according to records.

    The result is that communities large and small may have a false sense of security about the quality of their water and that utilities can avoid spending money to correct the problem.

    In some cases, state regulators have helped the utilities avoid costly fixes. The U.S. Environmental Protection Agency, which is supposed to ensure that states are monitoring utilities, has also let communities ignore requirements to reduce lead. In 2003, records show, the EPA ordered utilities to remedy violations in just 14 cases, less than one-tenth of the number ordered in 1997.

    The Post story includes a number of useful links in the sidebar. As readers may recall, it was revealed last year that the District of Columbia has a tremendous problem with lead in its drinking water.

    "Indiana Streamlines Electronic Permitting Processes" is the title to this story today in Government Technology. Some quotes:

    The new online service provides all the forms needed to apply for Indiana Department of Environmental Management (IDEM) permits. It also currently links to water permits provided through the Department of Natural Resources (DNR). Additional DNR permit applications will be added next year and, eventually, all the state's permit forms will be online. * * *

    The permit wizard acts much like the Turbo-Tax software that millions use each year to file their taxes. Users will answer a series of questions at www.myPermit.IN.gov, and at the end of the electronic interview, the online tool will provide a list of the necessary forms and, if appropriate, prompts them to visit the DNR permit Web site.

    The permit wizard also provides contact information for the staff member who will handle the permit applications and more information on the permitting process.

    "This wizard creates the front door for IDEM permits," said John Goss, director of the Indiana Department of Natural Resources. "When we fully connect the DNR's water permit applications in December, applicants will know whether or not they need a DNR permit just by answering a few questions online."

    IDEM staff has been working for the past few months with the accessIndiana Web team to build the permit wizard. In building the wizard, the design team had to link several different databases and programs that previously could not "speak" to each other. They also had to deal with the different permit needs of IDEM's three program offices, said accessIndiana General Manager Candy Irven.

    I read this story with particular interest as this is the kind of work my company, Environmental Information Solutions, does (see last item here).

    Posted by Marcia Oddi on Tuesday, October 05, 2004
    Posted to Environmental Issues

    Indiana Decisions - 7th Circuit posts one action today

    Bricklayers Local 21 v. Banner Restoration (ND Ill)
    [This is an 10/5/04 ruling on a motion to recall the mandate (original opinion issued 9/22/04 - to compel an audit of Banner Restoration to derermine ERISA compliance).]
    RIPPLE, Circuit Judge (in chambers). Appellant Banner Restoration, Inc. (Banner) moves to stay the mandate pending the filing of a petition for a writ of certiorari. Familiarity with this courts opinion in the underlying litigation is presumed. * * *

    Conclusion. For the foregoing reasons, I deny the appellants motion for
    a stay of the mandate. STAY OF MANDATE DENIED

    Posted by Marcia Oddi on Tuesday, October 05, 2004
    Posted to Indiana Decisions

    Indiana Decisions - One posted today by the Court of Appeals

    Depuy, Inc. v. Anthony Farmer (10/5/04 IndCtApp) [Worker's Compensation]
    Riley, Judge

    STATEMENT OF THE CASE. [DePuy, Inc.] appeals the award entered by the Full Workers Compensation Board entitling [Farmer] to workers compensation benefits as a result of work-related injuries. We reverse.

    ISSUES. Depuy, Inc. raises two issues on appeal, which we restate as follows: [1.] Whether Farmers claim for workers compensation benefits, pursuant to [IC] 22-3-2-13, is barred as a result of the settlement of his intentional tort action against co-employee [Swindel]; and [2.] Whether Farmers claim for workers compensation benefits is barred because the injury arose out of horseplay.

    On the morning of September 1, 1994, Farmer was clocking out of his third-shift service at DePuy. As Farmer was headed towards the time-clock, a first-shift co-employee, Swindel, was waiting to begin his workday. While passing Swindel, Farmer brushed his time-card against Swindels side. Swindel became enraged and attacked Farmer, pressing him backwards over a machine causing severe injuries to his back. These injuries led to time off of work, surgery, and large medical bills.

    On August 28, 1996, Farmer filed his complaint for workers compensation benefits with the Workers Compensation Commission because his injury arose out of his employment with DePuy. At the same time, Farmer filed a complaint against both DePuy and Swindel in the Kosciusko Superior Court, alleging that both parties were liable for Swindels battery against him. * * *

    First, DePuy contends that the Full Board erred in granting workers compensation benefits to Farmer. Specifically, DePuy contends that Farmers claim for workers compensation benefits against DePuy is statutorily barred as a result of his settlement of the intentional tort action against his co-employee, Swindel. * * *

    In sum, we find that although Farmer brought a claim of intentional tort against Swindel while at the same time pursuing workers compensation benefits against DePuy, his settlement of the intentional tort action did not bar his rights under I.C. 22-3-2-13. Even though the settlement of the intentional tort claim between Swindel and Farmer was not consented to by DePuy, nevertheless, we hold that the Full Boards Order, by ordering a reimbursement of this settlement amount to DePuy, resulted in subrogation rights for DePuy. Moreover, we conclude that the Full Boards Order prevented a double recovery by Farmer and ensured that DePuy was protected. Accordingly, we find that Farmers claim for workers compensation benefits against DePuy is not statutorily barred.

    Next, DePuy contends that the Full Board erred in awarding workers compensation benefits to Farmer because Farmers injuries resulted from horseplay. Therefore, DePuy maintains, since Farmers injuries did not arise out of his employment and were not to the benefit of his employer, Farmer is not entitled to receive workers compensation benefits. On the other hand, Farmer argues that the evidence presented to the Full Board was sufficient to establish that his injuries arose out of and in the course of his employment at DePuy. * * *

    There is no question that the injuries sustained by Farmer occurred in the course of his employment. The record clearly establishes that Swindel attacked Farmer on DePuys premises at the moment Farmer intended to clock out of his third-shift service. Rather, the question in the present case is whether Farmers injuries arose out of his employment. * * *

    The evidence indicates that Farmer, intending to end his shift by clocking out, wished Swindel a good morning and touched him on the side with his time card. The record is devoid of any evidence, nor do the parties offer any, that at the time of the battery, Swindel assaulted Farmer because of a disagreement arising out of their customary work obligations. Rather, we find that the quarrel was a consequence of Swindels bad start of the day and grouchy mood. Starting out irritably, Swindel introduced his personal problems into the work environment, which eventually resulted in Farmers injuries. Thus, we conclude that Farmers injuries, although sustained in the course of his employment, do not arise out of his employment with DePuy. * * *

    Based on the foregoing, we conclude that Farmers claim for workers compensation benefits against DePuy, pursuant to Ind. Code 22-3-2-13, is not barred. Furthermore, we reverse the Full Boards award because Farmers claim for workers compensation benefits did not arise out of his employment with DePuy.Reversed.
    CRONE, J., concurs.
    VAIDIK, J., concurs in part and dissents in part with separate opinion:

    I concur in Part II of the majoritys opinion. I must respectfully dissent from Part III, however, in which the majority holds that Farmers injuries are not compensable under the Indiana Workers Compensation Act because his injuries did not arise out of employment. Particularly in light of our deferential standard of review, I would affirm. * * *

    the facts here show that Farmers injuries arose out of his employment. Farmer, as a condition of his employment, was required to punch his time card at the end of his shift. While doing so, he encountered Swindel, who was waiting to clock in to start his shift. Thus, the obligations of Farmers employment placed him in a position where he was injured. Additionally, Farmers actions of wishing a fellow employee a good morning while clocking out (even though he brushed his timecard against that employees side in the process) is entirely reasonable in relation to the work setting. Among the many aspects of employment is the social interaction with fellow employees both while performing ones actual work and, as here, while performing tasks incident to ones work, such as clocking in and out. Based on the considerations set forth in March, Farmers injuries arose out of his employment.

    Posted by Marcia Oddi on Tuesday, October 05, 2004
    Posted to Indiana Decisions

    Indiana Courts - Upcoming oral arguments before the Indiana Supreme Court and the Court of Appeals

    [Update 3:30 pm: I've noticed some discrepancies between the schedule on the Oral Arguments Online page and the online court calendar (October) (November). I submitted an inquiry to try to clairify this earlier today but haven't heard back as of yet.]

    Here is the Court's schedule for October and November as posted so far. Where the ILB has previously posted an entry and case link (generally this would be whenever the Court of Appeals decision was available online), the information may be accessed by clicking on the case name:

    Thursday, Oct. 7, 2004
    9:00 am - Robert Bell v. State of Indiana (Court's Summary) [Criminal L & P] [Note: However, the Docket shows this case (49 A 04 - 0401 - CR - 00027) set for Oct. 13th at 2:00 pm.]
    9:45 am - Dicen v. New Sesco (Court's Summary) [Employment Law; Contracts]

    Wednesday, Oct. 13, 2004
    2:00 pm - Litchfield v. State of Indiana (Court's Summary) [Court of Appeals argument]

    Tuesday, Oct. 19, 2004
    9:00 am - Coca Cola Company v. Babybacks International, Inc. (Court's Summary) [Contract; Torts]
    9:45 am - Federated Rural Electric v. Nat'l Farmers (Court's Summary) [Insurance]

    Wednesday, Oct. 27, 2004
    9:00 am - St. Margaret Mercy Healthcare Centers, Inc. v. Barbara Poland (Court's Summary) [Court of Appeals argument] [Torts]

    Thursday, Nov. 4, 2004
    9:00 am - Maurice Smith v. State of Indiana (Court's Summary) [Criminal L & P; Constitutional Law]
    9:45 am - Brownsburg Comm School v. Natare Sum (Court's Summary) [Statutory construction]

    Wednesday, November 10, 2004
    9:00 am - Bruce Grant Heath v. State and Adolphe Smylie v. State (Court's Summary) [Criminal L & P; Constitutional Law] Note: These are the cases considering the application of Blakely v. Washington to state court sentencing
    _____________
    The oral arguments may be viewed online, in real time or on demand, via the Courts in the Classroom page.

    Posted by Marcia Oddi on Tuesday, October 05, 2004
    Posted to Indiana Courts

    Law - Blakely argument yesterday before Supreme Court

    I've just finished reading Dahlia Lithwick's review in Slate of the oral arguments yesterday before the Supreme Court. The headline is "Batman and the Penguin Eat Blakely: The Supreme Court term opens with strange bedfellows." The lead:

    I can think of at least four reasons why the government is in trouble long before the unusual 2-hour oral argument starts this afternoon in two cases meant to clarify last summer's bombshell decision in Blakely v. Washington. But the most compelling is that the man forced to argue United States v. Booker and United States v. Fanfan today faces a rarely constituted dream team of Justices Antonin Scalia and John Paul Stevens. While these two formidable humans are almost always on opposing sides of an issue, when they conspire to use their superpowers toward the same ends, it's like watching worlds collide. Batman teams up with the Penguin.
    Extensive coverage and links to further coverage can be found today in: Sentencing Law & Policy Blog.

    Posted by Marcia Oddi on Tuesday, October 05, 2004
    Posted to General Law Related

    Monday, October 04, 2004

    Law - Another beginning of term Supreme Court review

    Another beginning of term Supreme Court review, this time from the Baltimore Sun. Access it here. Indiana University-Bloomington Law Professor Frank O. Bowman is quoted.

    Today, the court is scheduled to hear arguments in the two drug cases examining the implications from the court's unexpected June decision in the case of Blakely v. Washington, which left U.S. sentencing guidelines in limbo and courts in chaos.

    Frank O. Bowman, a law professor and sentencing expert at Indiana University, urged the court in an article this summer for the American Criminal Law Review to "survey the shambles Blakely has created, put on the brakes and issue the juridical equivalent of Emily Litella's slightly sheepish, 'Never Mind'" -- a dry reference to the Saturday Night Live character played by Gilda Radner who famously corrected her various rants with that line in falsetto.

    In an interview last week, Bowman held little hope for that ending: "If I were a betting man, I would probably bet they are going to find Blakely does invalidate the guidelines, to one extent or another."

    Posted by Marcia Oddi on Monday, October 04, 2004
    Posted to General Law Related

    Indiana Decisions - 7th Circuit posts two

    Tolosa, Hiwot G. v. Ashcroft, John D. [Petition for Review of an Order of the Board of Immigration Appeals]

    Before COFFEY, ROVNER, and EVANS, Circuit Judges.
    ROVNER, Circuit Judge. Hiwot Tolosa, an Ethiopian citizen of Oromo descent, petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA) denying her application for asylum and withholding of removal. Tolosa and her sister left Ethiopia after their father had fled to Kenya and their mother, of Eritrean descent, had been deported to Eritrea. Because the immigration judge (IJ) erroneously discredited Tolosa and failed to acknowledge evidence in the record supporting her claim, we remand for further proceedings.
    Friends of Milwaukee's Rivers v. Milwaukee Metro Sewerage District (ED Wis.)

    Petition for rehearing denied.

    Posted by Marcia Oddi on Monday, October 04, 2004
    Posted to Indiana Decisions

    Indiana Law - Dockside Gambling and State Finances

    "Officials reaping gambling rewards: Governments win; taxes take big bite," is the headline to a comprehensive story this morning in the Louisville Courier-Journal by Lesley Stedman Weidenbener.

    Posted by Marcia Oddi on Monday, October 04, 2004
    Posted to Indiana Law

    Law - ISBA's Appellate Practice Section newsletter rescues How Appealing's 20 Questions

    What this is about is best explained in the introduction to Howard Bashman's monthly "20 Questions for the Appellate Judge," publlished this month with a twist:

    23 Questions for Seventh Circuit Judge Diane S. Sykes: [Editor's note: The Fall 2004 issue of The Appellate Advocate, the newsletter of the Indiana State Bar Association's Appellate Practice Section, has just been distributed to that section's membership. The newsletter contains an interview that Thomas M. Fisher of the Office of the Indiana Attorney General conducted in writing with Seventh Circuit Judge Diane S. Sykes. When the scheduled October 2004 "20 questions" interviewee advised that he was unable to participate shortly after receiving the questions that I had prepared for him, I asked Tom if I could reprint his interview with Judge Sykes in its place. Tom, the newsletter's editor-in-chief, and Judge Sykes have all agreed. With many thanks to all three of them, what follows is a verbatim republication of the interview contained in the Fall 2004 issue of The Appellate Advocate.]

    Posted by Marcia Oddi on Monday, October 04, 2004
    Posted to General Law Related

    Law - First Monday in October

    Today the Supreme Court of the United States begins its new term. The first item on their agenda is hearing oral arguments today on the two cases (including the 7th Circuit decision in Booker) concerning the appllication of the Court's decision last year in Blakely v. Washington to the U.S. Sentencing Guidelines. Linda Greenhouse has a front-page story today in the NYT headlined "Sentencing Tops Justices' Agenda as Term Begins." Some quotes:

    The Supreme Court opens its new term on Monday faced with urgent business and looming uncertainty.

    The justices' most pressing task is to resolve the fate of the federal criminal sentencing system, which the court itself threw into limbo in June by declaring unconstitutional a similar, although not identical, system used by the state of Washington.

    In both the state and federal systems, sentencing guidelines provide a starting point for calculating a criminal sentence, and judges then make findings about a variety of factors to determine how much time a defendant will actually serve. The Supreme Court held in Blakely v. Washington that the state system violated the constitutional right to trial by jury by permitting judges to make these essential findings.

    Federal judges around the country quickly started ruling that they could no longer treat the federal sentencing guidelines as binding. Whether that judgment is correct and, if so, what should happen next will be the subject of an unusual afternoon argument on Monday in two cases that the justices granted in August at the Justice Department's request and agreed to expedite for an argument that would not ordinarily have been scheduled until January.

    The article goes on to survey "some of the other important cases the court has agreed so far to hear during its new term."

    Charles Lane of the Washington Post had a "First Monday" survey story yesterday - access it here.

    Posted by Marcia Oddi on Monday, October 04, 2004
    Posted to General Law Related

    Sunday, October 03, 2004

    Indiana Decisions - More on compulsive gambler suit

    The Chicago Tribune has a story today on lawsuits against casinos, headlined "Early rulings won't get compulsive gamblers off the hook." It begins:

    If a compulsive gambler asks a casino to bar him from the premises, yet he still gains entry, is the establishment liable for his losses?

    The early answer favors the house.

    Milan Stulajter asked Harrah's in April 2001 to keep him out of its casinos. Nevertheless, the company continued to send him marketing materials in the mail. He returned to its East Chicago riverboat casino on several occasions and lost about $70,000.

    He sued Harrah's for negligence for failing to stop him from gambling after he voluntarily placed himself on its self-exclusion list. Such lists and similar state exclusion programs recently have become the grounds for lawsuits from problem gamblers who believe casinos should be held responsible when they squander their money.

    But courts aren't buying it. In May, the Indiana Court of Appeals upheld a lower court's decision to dismiss Stulajter's suit, finding that casinos have no duty to protect compulsive gamblers from themselves, even if players are on a blacklist. The ruling agreed with other state and federal courts that recently have let casinos off the hook.

    The decision referenced is Milan Stulajter v. Harrah's Indiana Corporation, et al. (5/20/04 IndCtApp). Access the ILB entry and a link to the case here (last decision in list).

    Posted by Marcia Oddi on Sunday, October 03, 2004
    Posted to Indiana Decisions

    Environment - Stories this weekend

    The Ft. Wayne Journal Gazette has a really excellent (and lengthy) piece today on the conflict between pollution and economics, titled "The black cloud over power." Here are some quotes, but the piece deserves a full reading:

    PETERSBURG Ray Breidenbaugh has mixed feelings about the 600-foot power plant stacks that loom over his back yard.

    On one side are the millions of pounds of invisible toxins the stacks pour into the air every year, chemicals that cause acid rain, pollute streams and lakes, poison fish and cause thousands of premature deaths across the nation.

    But the other side is the economic reality: jobs at the plants, jobs at the coal mines that feed them and jobs on trucks and railroads that haul the coal between them. Breidenbaugh, now retired, worked 24 years in southern Indianas coal mines.

    That conflict between pollution and economics can be seen across Indianas Ohio River Valley, where rural counties with small populations are listed on the Environmental Protection Agencys Toxic Release Inventory as the worst polluters in the state, far outpacing counties with much larger populations, such as Marion, Allen and even Lake, known for its heavy industry. * * *

    Power plant operators point out their emissions are within the law and insist they are not a threat to public health, but environmentalists point to a university study showing children in Vanderburgh County surrounded by power plants are five times more likely to have asthma than are children in Allen County.

    Which is where Breidenbaugh finds himself: The same industry that environmental groups and federal officials say is wreaking environmental havoc is also the lifeblood of dozens of towns throughout southern Indianas Ohio River Valley.

    Thats work, Breidenbaugh says of the power plant behind his house. Thats employment.

    Its also the dilemma that all of Indiana is in: The electricity that runs fax machines, light bulbs and blow-dryers across the state comes at the expense of the air along the Ohio River, some of the most beautiful, rugged areas Hoosiers have, and all of the nations East Coast downwind. Residents in northeast Indiana dont have to think twice about turning on an air conditioner, thanks to power plants hundreds of miles away. * * *

    Alcoas power plant is a symbol of how southern Indianas coal mines have fueled the power plant industry there: The 600-megawatt plant, large enough for about 200,000 homes, is used almost exclusively to power Alcoas aluminum smelting operation in Newburgh, the largest aluminum smelter in the United States. Instead of locating the smelter where the alumina ore is, Alcoa put it where the coal is and brings the ore to tiny Newburgh by barge. Coal is about half the cost of oil and one-third the cost of natural gas.

    Alcoas power plant and smelter employ 2,300 people and have an economic impact on the community of about $1 million a day, Rideout Lambert said. They also put a combined 5.6 million pounds of toxins into the air in 2002, including more than a ton of lead compounds.

    Of the top 10 counties ranked by point-source air pollution air pollution coming from smokestacks only Elkhart County at No. 6 has a population larger than 72,000. And in every case except Elkhart County with dozens of plastics, fiberglass and composite firms the overwhelming majority of that pollution is coming from coal-fired power plants. * * *

    The divide over what the power plants have brought to the area can best be seen at Cinergys Gibson station, where the reaction to the massive power plant the third largest coal-fired power plant in North America often depends on what side of the Wabash River you live.

    On the Indiana side, Cinergys 400 jobs and huge property tax payments have made it a cornerstone of the town of Princeton and Gibson County.

    Andrea Howe, editor of the Princeton Daily Clarion, finds that out every time her newspaper reports on the plant or its emissions. Members of the Town Council work at Cinergy. So do county commissioners. So does the head of the chamber of commerce. South Gibson Schools built all new elementary schools in the early 1990s, thanks to the property taxes the plant pays.

    On this side of the river, its hard for people to view them as the big, bad polluter, Howe said.

    The other side of the river is Mount Carmel, Ill., where it became much easier to view the plant through that lens after acid fogs descended on the town this summer. When Cinergy installed a new selective catalytic reduction unit much like the catalytic converter in your car on one of the generating units at Gibson, something went wrong and resulted in a blue cloud of acid engulfing Mount Carmel. The selective catalytic converter removes nitrogen oxide from the stacks, turning it into nitrogen and water.

    "Storms either can natural or man-made" reports Daniel Schorr this morning on NPR's Weekend Edition. He talks about hurricanes and asks: is the separation so clear anymore, referencing a report Thursday in the NY Times that hurricanes draw their intensity from the warming of ocean waters. Listen to it here. The Times story, titled "Global Warming Is Expected to Raise Hurricane Intensity," is available here.

    Finally, a NYT story today, datelined Lewistown, Montana, and headlined "Toxic Paint Muddies a Beloved Creek." Some quotes:

    Big Spring Creek rises up out of the prairie at the cottonwood-tree-shaded state fish hatchery a few miles outside this agricultural hamlet. It oxbows several miles through farmland and pine-studded bluffs and into town, through neighborhoods and downtown.

    The deep, clear creek also flows through the center of life here. The water is piped without treatment into the faucets of city residents, fishermen come from around the country to drop flies into its pools, children and adults float the stream in inner tubes, and a local tavern has a hole in the floor a few steps from the bar which allows patrons to watch swimming fish while they drink.

    "Lewistown wouldn't be here if it weren't for Big Spring Creek," said Torger Oaas, a local lawyer.

    That is why high levels of toxic PCB's found in the stream and their unlikely source have sent a ripple of shock through this central Montana town of 4,000.

    PCB's were first discovered in the stream in the early 1990's, but at low levels. An advisory was placed on eating fish. But after an old industrial site at Brewery Flats, which officials thought was the likely source, was cleaned up, they kept finding PCB's. Last year, they started sampling above the flats, which no one had thought to do before.

    "The levels got higher and higher the closer you got to the hatchery," said Don Skaar, a pollution control biologist with the Montana Department of Fish, Wildlife and Parks. "We sampled fish right below the hatchery and they had levels 30 times the 'no eat' levels. It was totally out of the blue.''

    The problem turned out to be the blue-green paint that was used on the walls of the hatchery. Since the 1960's the paint, with high levels of PCB's that were added to make it more elastic, has been flaking off the concrete walls at the hatchery, washing downstream and accumulating in a toxic layer of sediment, a foot below the creek bottom in some places. * * *

    Both Mr. Haugen and Mr. Paulson are part of a class-action lawsuit against the state and the Monsanto Company, which made the paint, and are represented by Mr. Oaas. They want the creek back the way it was, which would probably mean dredging the bottom, especially near the hatchery. The fish, on the other hand, may have high PCB levels for five years or more. A lawyer representing Monsanto did not return calls seeking comment. There was considerable talk about the PCB's at the Montana Tavern, on Lewistown's Main Street, which has an unusual connection to the stream.

    The creek runs under the streets of downtown Lewistown for three blocks or so before it emerges into the open. There is a wooden box with a plexiglass top over a hole in the tavern floor that looks down on the stream, where a spotlight illuminates the long sleek bodies of trout. Jim Awbery, the bar's owner, said his son once caught a six-pound brown trout in the hole.

    Posted by Marcia Oddi on Sunday, October 03, 2004
    Posted to Environmental Issues

    Indiana Courts - More on running for judge in Indiana

    The Munice Star-Press today, in a story headlined "Judicial campaign marked by secretly taped conversation," reports:

    MUNCIE - Judicial candidate Jeffery Arnold is crying foul after the bailiff of his opponent, Delaware Circuit Court 1 Judge Marianne Vorhees, urged the victim in a long-dormant stalking case to go public with her complaints about Arnold, the deputy prosecutor in the case.

    Steve Aul - a former sheriff who is now bailiff in Vorhees's court and a principal in her election campaign - contacted Christine Weans and asked to meet with her about a 2001 stalking charge filed against her then-husband, Harold Weans, who had already been charged with trying to choke Christine Weans.

    The Star-Press story is lengthy and I found it rather hard-to-follow. A related story in same same paper today is titled "Other judicial campaigns have sparked disciplinary action." It begins:
    MUNCIE - The attorney for the Indiana Commission on Judicial Qualifications saw no violations in a recent politically-charged conversation between the bailiff for Delaware Circuit Court 1 Judge Marianne Vorhees and the victim in a stalking case formerly prosecuted by Vorhees' opponent, Jeff Arnold.

    But the commission has reprimanded parties in East Central Indiana judicial campaigns in recent years.

    Posted by Marcia Oddi on Sunday, October 03, 2004
    Posted to Indiana Courts

    Indiana Law - More on state government reorganization

    The gist of politcal reporter Lesley Stedman Weidenbener's Sunday column in the Louisville Courier-Journal is well-stated in the lead: "It would seem big changes are coming in the way state government operates no matter who is elected governor in November."

    She discusses the proposals of the two gubernatorial candidates, then points out:

    Legislative leaders seemed open to the ideas. Support from lawmakers is essential. Many of these changes can't be made without their help. In fact, the General Assembly appointed its own commission last year to look at government efficiency.

    Committees and subcommittees have been meeting for 18 months, looking for ways to reorganize agencies and services to save money and provide more efficient services.

    For lawmakers, perhaps the most politically difficult change and one proposed by both gubernatorial candidates would eliminate some of the state's many quasi-governmental agencies and get rid of some boards and commissions. The majority of those boards are the creation of the General Assembly.

    The Indianapolis Star has an editorial today on state government reorganization. Some point from the middle of the piece:
    Yet as proven by Wisconsin's welfare overhaul -- the model for the federal-level effort -- and Florida's efficiency efforts, government reform can be achieved. The secret of their success? A governor who devoted the earliest days of his term to the effort, a clear set of objectives and goals, dedication to drilling down details, an open process that included all players -- including the very bureaucrats who can bog down such efforts -- and the creation of a performance measurement system.

    The next governor must apply those lessons to accomplish reform. His objectives also must go beyond eliminating waste and corruption. Deciding on what efforts government should concentrate on and what it should leave to the private sector also must come into play.

    With 74 state agencies and 319 different boards, including the 41 that oversee the Family and Social Services Administration, Indiana state government could certainly use an overhaul. That can be seen in the state's more than $800 million budget deficit. A spate of fraud and identity theft at the Public Employees Retirement Fund, child deaths in cases handled by the Family and Social Services Administration and the morass at the Bureau of Motor Vehicles also are evidence of a government running on empty.

    Such corruption and incompetence don't merely affect state government affairs. The botched six-year revamp of the property tax reassessment rules, along with delays and errors at county and township assessment levels, have led school systems such as Indianapolis Public Schools to borrow money to stay afloat. That an agriculture-related firm, for example, has to deal with at least two different agencies for permits and rules compliance also makes the state unattractive to new companies as well as existing firms. And taxpayers will face an even greater challenge as the state must eventually cover $8.2 billion in underfunded civil servant pension benefits.

    Posted by Marcia Oddi on Sunday, October 03, 2004
    Posted to Indiana Law

    Saturday, October 02, 2004

    Indiana Courts - Profile of Morgan County chief deputy prosecutor

    The Indianapolis Star has a profile today of Morgan County chief deputy prosecutor Bob Kline. Some quotes:

    But for Cline -- appointed in early September as Morgan County chief deputy prosecutor -- the cramped space is irrelevant.

    "I'm on cloud nine, and I haven't come down since," said Cline, 36. "It's exciting. I mean, it's a very good thing."

    Cline replaced Terry Iacoli, who left after two years to start his own private practice. It's a big step for Cline, who quit his job as an Indiana State Police excise officer about eight years ago to enroll in the Indiana University School of Law in Bloomington. * * *

    "My dad quit school and went to work," Cline said. "He's a product of the Depression. He always said the only thing that limited him was his lack of education. That's been a driver for me." Heeding his father's advice, Cline enrolled in a dual degree program, where he obtained a law degree and a master's degree in accounting.

    After passing the bar exam in 2000, Cline worked for two years at PricewaterhouseCoopers in Indianapolis as an auditor. But the job required extensive travel to other states. "I really felt myself drawn to the practice of law," Cline said. "If I wanted to work in law, I had to give it a try."

    A self-described voracious newspaper reader, Cline saw an announcement of job openings at the Morgan County prosecutor's office. In January 2002 he was hired as a deputy prosecutor in Superior Court 3.

    Now, Cline wants to set an example to budding minds in rural areas. "The problem with growing up rural is that they're not expected to attend college," Cline said, "but that does not mean that they are not intelligent people. You see that all the time." And like Cline, he said, they too can aspire to be lawyers. "I'm fortunate; life's treated me real good."

    Posted by Marcia Oddi on Saturday, October 02, 2004
    Posted to Indiana Courts

    Law - State of Washington (NOT Oregon) FOIA has teeth

    "Civics lesson costs King County thousands of dollars: More money likely for man who waited years for documents about stadiums" was the headline to this story yesterday in the Seattle Post-Intelligencer. Some quotes:

    King County likely will have to pay thousands of dollars more to a Vashon Island businessman who calls his seven-year legal battle for documents about the county's two sports stadiums a hobby. Yesterday, the state Supreme Court said the $25,440 penalty the county was ordered to pay Armen Yousoufian several years ago simply wasn't enough. Yousoufian and one of his attorneys, Michael Brennan, say the county's fine for dragging its feet when Yousoufian asked for the documents will probably land between $41,000 and $825,000.

    But King County contends the penalty could be closer to $28,000 -- just a few thousand more than it's already paid him, according to attorney John Gerberding. It's now up to a King County Superior Court judge to decide the amount. The complicated formula involves how many "groups" of documents Yousoufian sought -- and how long the county dawdled with each.

    Yousoufian began asking the office of King County Executive Ron Sims for documents related to the stadium projects in 1997 and didn't get some of them for years. In 2001, a judge ordered the county to pay him $25,440 in penalties and almost $90,000 in legal costs. Yesterday, county officials were pleased the Supreme Court didn't order a daily penalty for each one of about 200 documents that Yousoufian requested, according to Sims' spokeswoman, Elaine Kraft. That could have boosted the penalty to somewhere between $1 million and $30 million.

    But Justice Richard Sanders, in his dissent, said such a per-document penalty was appropriate. He said a $30 million fine -- roughly 1 percent of King County's operating budget -- "might just be the necessary medicine" to force a government agency to follow the law.

    [Update 10/4/04] The plaintiff in the case, Armen Yousoufian, kindly advised me that Seattle is in Washington, not Oregon, and also has sent me the following links:
    If you'd like to read the majority opinion (which 6 of the 9 justices signed on to), and Richard Sanders dissent, in which he argued that I should have been awarded more or less all I argued for, here are the links: Majority opinion; Justice Sanders dissent.

    Posted by Marcia Oddi on Saturday, October 02, 2004
    Posted to General Law Related

    Law - Running for judge in Kentucky and Indiana

    Some quotes from a story today in the Louisville Courier-Journal:

    A conservative group that wants to solicit judicial candidates' views on same-sex unions and other controversial issues is seeking to throw out a Kentucky rule that bars judges and challengers from committing themselves on topics that may come before them.

    The Family Foundation of Kentucky, which opposes gay marriage and abortion rights, says the judicial canon infringes on the free-speech rights of citizen groups to survey judges and inform the public.

    The suit, filed Sept. 23 in U.S. District Court, says that most of the 28 judicial candidates on the ballot statewide this year who responded to the Family Foundation's survey declined to fill it out, citing fear of violating the rule. * * *

    Indiana
    Right to Life filed a similar suit against a state judiciary panel in federal court in Lafayette on Wednesday. The Evansville-based group said it sent questionnaires to judicial candidates asking for their opinions on abortion, euthanasia and other issues.

    In Kentucky, the Family Foundation was unable to persuade a judge or candidate to join the suit as a plaintiff, [foundation director Kent] Ostrander said. But Louisville lawyer Richard Porter, who is running for the circuit bench in Jefferson County, said: "The public has a right to know where judges are coming from. The Kentucky bar tries to scare you into keeping your opinions to yourself."

    Authorities on judicial ethics, however, said that if Family Foundation prevails, judges could promise in advance how they would decide cases, destroying the impartiality of the courts. "It would be a disaster for the due process of law," said Northwestern University law professor Steven Lubet, co-author of "Judicial Conduct and Ethics: A Treatise on the Law of Judging."

    The Kentucky Code of Judicial Conduct says judicial candidates shall not make pledges or promises other than to perform their duties impartially, and that they shall not make statements "that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." Indiana's rule is similar. * * *

    The U.S. Supreme Court held in 2002 in a case from Minnesota that judicial candidates have a free-speech right to "announce" their views. But the court didn't address more specific rules in Kentucky, Indiana and most other states that bar judges and challengers from making statements that commit or appear to commit them on issues likely to come before them. * * *

    The foundation's survey said it was seeking candidates' "current views on legal issues" rather than any "pledge, promise or commitment.''

    The survey asks eight questions, including whether the candidates think the Kentucky Constitution requires that same-sex couples be allowed to enter civil unions or requires the removal of the Ten Commandments from public buildings if they are displayed with other historically significant documents.

    The survey also asked the candidates to name which U.S. Supreme Court justice most closely reflects their judicial philosophy, to rate themselves as "strict constructionists" on a 1-10 scale; and to check off which of 52 organizations they have belonged to or supported in the past 10 years.

    The groups range from such liberal groups as the American Civil Liberties Union, Gay & Lesbian Advocates and Defenders, Greenpeace and Handgun Control to the more conservative Americans United for Life, Focus on the Family and the National Rifle Association.

    Posted by Marcia Oddi on Saturday, October 02, 2004
    Posted to Indiana Courts

    Environment - CWA, plus a number of air stories

    "EPA cites five Ohio dairies for violations" was the headline to this story yesterday in the Cleveland Plain Dealer. The report begins:

    Five large dairies in northwest Ohio have been cited for violations of the Clean Water Act, the U.S. Environmental Protection Agency confirmed yesterday.

    Notices were sent to the farms almost a year after an EPA team found extensive problems with manure and wastewater management during an unannounced visit. The dairies are Olsthoorn Dairy and Gina Dairy of Van Wert County, White Gold Dairy and Schilderink Dairy of Paulding County and Manders Dairy of Wood County. The dairies have 30 days to respond.

    The dairies are among 41 that Wauseon, Ohio-based Vreba-Hoff Dairy Development Corp. has built in the Midwest since 1998, including 23 in Ohio, 10 in Indiana and eight in southern Michigan. * * *

    The farms cited were found to be discharging pollutants, including either manure, process wastewater or polluted stormwater, into waters that flow into Lake Erie.

    They are among 10 northwest Ohio dairies the EPA inspected in November 2003. The EPA has inspected an additional 35 Midwest dairies, 10 of which were sent violation notices. The EPA will not release the names of those farms until the agency is able to confirm that the notices were received, said Arnie Lieder, enforcement officer for EPA Region 5, which comprises Ohio, Michigan, Illinois, Indiana, Minnesota and Wisconsin.

    Lieder still has 20 reports to review. "We are likely to see the same types of problems we saw in the first round," he said in an e-mail.

    "Inspector General Says E.P.A. Rule Aids Polluters" was the headline to this story yesterday in the NY Times. Some quotes:
    In a rebuke of the Bush administration, the inspector general of the Environmental Protection Agency said on Thursday that legal actions against major polluters had stalled because of the agency's decision to revise rules governing emissions at older coal-fired power plants.

    The inspector general, Nikki L. Tinsley, took direct aim at the administration's revision of the New Source Review rule, one of the administration's most prominent - and vilified - environmental initiatives, saying that it makes it easier for power-plant operators to postpone or avoid adding technologies that reduce polluting emissions.

    The revised rule, made final last year, has not been put in effect yet because of legal challenges. But the report concludes that just by issuing the rule, which scuttled the enforcement approach of the Clinton administration, the agency has "seriously hampered" its ability to settle cases and pursue new ones.

    Ms. Tinsley's report serves as a sharp challenge to Jeffrey R. Holmstead, an assistant E.P.A. administrator who has been the agency's leading proponent of the new rule. Ms. Tinsley said in the report that her investigators found little basis for the new rule and suggested, "This is an excellent opportunity for E.P.A. to fully consider - in an open, public, and transparent manner - the environmental impact of proposed N.S.R. changes at varying levels."

    Other stories on the inspector general report include this one from the Cox News Service headlined "Reaction furious to EPA report" and this one from the LA Times headlined "EPA Is Lax on Coal Power Rule, Report Says: The agency's inspector general says a Bush administration policy undercuts the government's ability to make utilities comply with clean air laws."

    The Chicago Sun-Times reported yesterday, in a story headlined "Environmentalists stunned by EPA ruling," that:

    Environmentalists reacted with disbelief and disappointment Thursday to an Illinois Environmental Protection Agency recommendation that the state do nothing for now about pollution from coal-fired power plants.

    An IEPA report to the General Assembly said that although the plants "are a considerable source of air pollution and that reducing emissions will benefit public health," the state should not impose restrictions until their impact on health, jobs and electric rates can be analyzed.

    The agency urged Gov. Blagojevich to keep pressuring the federal government for a national plan to cut plant emissions. * * *

    "It's hard to believe that this agency would write this report," said Brian Urbaszewski of the American Lung Association of Metropolitan Chicago, adding it was "starkly inconsistent" with previous statements by Cipriano and the governor.

    "We had been led to believe by the [state] agency that they were recommending a rule," said John Thompson of the Clean Air Task Force. "This reads more like something the utilities would write."

    The Illinois Energy Association, an industry group, said it "strongly agrees with the IEPA recommendation that the State of Illinois wait for pending new federal clean-air standards to be adopted and avoid premature actions that could undermine the reliability of our electric power supply, force shutdowns of power plants and put Illinoisans out of work."

    The Chicago Tribune reported:
    Operators of coal-fired power plants in Illinois dodged tougher limits on air pollution after the Blagojevich administration agreed with industry groups that a state campaign against the oldest and dirtiest generators could drive up the cost of electricity.

    As recently as a week ago, a top official at the Illinois Environmental Protection Agency said the state was likely to recommend rules that would curb emissions of mercury and other toxic pollutants from power plants, boost the state's battered coal industry and keep electricity rates stable. * * *

    Dave Kolaz, chief of the EPA's air bureau, said last week that he was confident the agency would recommend "significant reductions" of mercury and pollutants that cause acid rain and smog. "We can do it if we do it right," he said at the time.

    But industry groups lobbied the EPA to abandon state-only pollution rules. They found an ally in the Illinois Commerce Commission, the state's rate-setting agency, which argued that requiring utilities to upgrade their aging coal burners with expensive pollution controls could make them less competitive in a deregulated market where power is traded among states.

    "The issue is not whether the plants will get cleaner--they will--but whether Illinois becomes a net importer of electricity," said Doug McFarlan, spokesman for Chicago-based Midwest Generation LLC, which owns two of the eight most-polluting coal plants in Illinois. "That raises concerns about reliability and costs."

    Posted by Marcia Oddi on Saturday, October 02, 2004
    Posted to Environmental Issues

    Indiana Decisions - More on October 1st transfer list

    Among the cases denied transfer by the Indiana Supreme Court yesterday was:

    Aztar Indiana Gaming Corp. v. Indiana Dept. of State Revenue (4/19/04 IndTaxCt) (Access IBL summary and case link here; last case)

    As reported today by Lesley Stedman Weidenbener of the Louisville Courier-Journal:

    INDIANAPOLIS Indiana's 10 casinos owe the state an estimated $200 million in back taxes and could have to pay $30 million to $50 million more in corporate income taxes annually under a ruling the Indiana Supreme Court has allowed to stand. * * *

    In April, the Indiana Tax Court ruled in a case involving Casino Aztar in Evansville that the gambling boats can't reduce their taxable corporate income by the amount they've already paid the state in wagering taxes.

    That's what the casinos have been doing since their inception, in part because the deduction is allowed under the federal tax system and in most other states, [Mike Smith, executive director of the Casino Association of Indiana] said.

    But the Indiana Department of Revenue has long held that it is not permitted under state law and ordered the casinos to pay more. That led to the tax court decision, which the casinos appealed. This week, the Indiana Supreme Court declined to take the case.

    "The Supreme Court was basically our last option," although casino attorneys are looking for other ways to fight the decision, Smith said. * * *

    The court decision comes on the heels of another ruling that forces the casinos to pay a "use tax" when they purchase their gambling boats and bring them into Indiana.* That decision could cost Caesars Indiana and other boats several million dollars.

    "It wasn't a rosy week for the gaming industry," Smith said. "This is a pretty sad thing for the industry."

    Various casino taxes are projected this year to generate as much or more money for the state than all other corporate taxes combined.

    *The use tax decsion referenced above is Indiana Dept. of Revenue v. Trump Indiana, Inc. (9/21/04 IndSCt) (Access IBL summary and case link here.)

    Posted by Marcia Oddi on Saturday, October 02, 2004
    Posted to Indiana Transfer Lists

    Friday, October 01, 2004

    Indiana Decisions - One from 7th Circuit today

    City of Chicago v. Comcast Cable (ND Ill.)

    Before EASTERBROOK, MANION, and WOOD, Circuit Judges.
    EASTERBROOK, Circuit Judge. * * * All 542(b) does is limit authority that has some other source. If 542(b) makes the Citys claim a federal one, then any statute preempting state law would allow removal, and decisions such as Mottley, Gully, and Franchise Tax Board would be overthrown. The judgment is vacated, and the district court is instructed to remand this litigation to state court.

    Posted by Marcia Oddi on Friday, October 01, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Transfer List for Week Ending October 1, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending October 1, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

    Seven cases were granted transfer by the Supreme Court today:

    Jedediah J. Haltom v. State of Indiana (Access IBL summary and case link here; 3rd case)

    Kimberly S. Ham v. State of Indiana (Access IBL summary and case link here; next to last case)

    Donna K. Stites v. State of Indiana (Access IBL summary and case link here; 6th case)

    Donna J. MacLafferty v. William P. MacLafferty (Access IBL summary and case link here; 3rd case)

    Gene & Carolyn Lasater v. Donald House, Sr. (Access IBL summary and case link here; 2nd case)

    Estate of Jackie L. Crabtree, Jr. v. Alicia Crabtree, et al. (Access IBL summary and case link here; 2nd case)

    Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation (Access IBL summary and case link here; 5th case)

    Nagy is the subject of this AP story posted this afternoon by the Indianapolis Star and this story in the Evansville Star-Press. Some quotes from the latter:
    The Indiana Supreme Court will decide if the Evansville public school system's $20 activity fee is constitutional. At issue is whether the $20 student fee, imposed by the School Board beginning the 2002-2003 school year to offset part of a budget deficit, amounts to a tuition charge. The Indiana Constitution says the state shall provide public education without tuition.

    In one sentence, the state high court agreed to review the case, and it granted Evansville-Vanderburgh School Corp.'s request for oral arguments, which were scheduled for 9 a.m. Nov. 23 in Indianapolis (8 a.m. Evansville time).

    On May 28, the Indiana Court of Appeals ruled 2-1 that the activity fee is tuition, and therefore is unconstitutional. According to rules of appeals procedure, the appellate court ruling's automatically was vacated when the Supreme Court agreed to hear the matter. In turn, that put back in force a 2003 ruling by Vanderburgh Superior Court Judge J. Douglas Knight. * * *

    "It's not at all surprising to be that they (state Supreme Court justices) did what they did," said Pat Shoulders, attorney for the school corporation. "I thought the Court of Appeals decision was shocking in its breadth."

    Besides declaring the activity fee unconstitutional, the appellate court's ruling in May also called into question a 1974 ruling - also by the Court of Appeals - that refused to block the South Bend school system's book-rental fee. In that case, the Court of Appeals concluded book rental fell beyond the definition of tuition. Knight cited the South Bend case in his decision that the Evansville activity fee was constitutional.

    But Court of Appeals Judge Patrick J. Sullivan, referring to the 1974 case, wrote for the majority in May: "We are not beholden to blindly follow what we consider to be an erroneous ruling."

    Because of the constitutional issue involved, neither Shoulders, Evansville resident Frank Nagy, who originated the lawsuit, nor Indiana Civil Liberties Union attorney Jacqueline Bowie Suess were surprised the state Supreme Court took up the case. "The Supreme Court has not spoken on this issue, so it's not surprising that they'd want to hear it," Suess said from her Indianapolis home Thursday night.

    Posted by Marcia Oddi on Friday, October 01, 2004
    Posted to Indiana Transfer Lists

    Indiana Law - Muncie campground ends confederate flag prohibition

    "Confederate flags can fly again at camp sites" is the headline to this story in the Muncie Star-Press. Some quotes:

    MUNCIE - The city told a federal judge in Indianapolis this week that it was rescinding its policy prohibiting all but American and POW/MIA flags at its campground at Prairie Creek Reservoir.

    A lawsuit on behalf of campers was brought by the Indiana Civil Liberties Union claiming the ban on Confederate battle, Budweiser, NASCAR, Pacers, Colts and other flags violated campers' First Amendment right to free speech.

    Mayor Dan Canan said Wednesday he revoked the policy on the advice of city attorney Charles (Chic) Clark. As a result, all flags are permissible at the campground. * * *

    The campground has come to resemble a trailer park, with amenities such as decks, gardens, flagpoles, golf carts, a portable basketball goal, and an in-ground welcome sign with a family's name on it.

    The mayor still plans to have all RVs and accessories removed from the campground for the winter after the electricity is turned off in about a month. Normally, RVs remain parked at the campground for the winter, adding to the trailer-park atmosphere. The owners have been paying the city a fee to leave their RVs stored at the campground during the winter months. * * *

    Ken Faulk of the ICLU, said, "If this is the mayor's permanent position [on flags], I would want him to sign a stipulation saying the policy will not be reinstated. Once we have everyone bound to that, we can dismiss the lawsuit. We want a stipulation of some sort saying this is not going to come up again."

    Federal Judge Larry McKinney conducted a hearing on the lawsuit this week in Indianapolis.

    "Mayor Canan has advised the court that he has rescinded or otherwise revoked the policy at issue in this cause," McKinney wrote in an order issued Wednesday. "Based on this development, there is no danger of irreparable harm to plaintiffs if they choose to fly the flags other than those previously designated by the policy. Therefore, plaintiffs' motion for preliminary injunction is denied." * * *

    The mayor at one point was going to ban all flags, but decided to ban all but American and POW-MIA flags. After being sued by ICLU, he banned all flags. But like the ban on Confederate battle and other flags, banning American and POW-MIA flags sparked a protest and national attention. Canan admitted banning American and POW-MIA flags was a mistake and rescinded that order.

    For background, see these earlier entries: 5/26/04; 8/24/04; 8/25/04.

    Posted by Marcia Oddi on Friday, October 01, 2004
    Posted to Indiana Law