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Tuesday, November 30, 2004

Indiana Decisions - More on the Trusley decision

The Edinburgh Courier (Johnson County) has a story today on the Court of Appeals decision last week in Kelli Jo Trusley v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure] (access the ILB entry here). That 2-1 decision concluded:

CONCLUSION. Trusleys sentence was enhanced because of aggravating factors other than criminal history, which aggravating factors were not found by a jury or admitted by Trusley. We accordingly remand for resentencing.
Some quotes from the story today, by reporter Michael W. Hoskins:
A Greenwood baby sitter convicted of reckless homicide believes a jury, not a judge, should have decided whether to extend her prison sentence.

Indianas Court of Appeals agreed and has ordered a Johnson County judge to take another look at the sentence handed down in January to Kelli Jo Trusley. * * *

She pleaded guilty to a Class C felony of reckless homicide and faced between two and eight years in prison. Johnson County Superior Court 2 Judge Cynthia Emkes added two years in prison and two on probation to the standard four-year penalty.

Trusley asked the appellate court to review the sentence, arguing that a jury should have been asked to review factors that extended her sentence.

Two of the three appellate judges agreed Wednesday that Trusleys sentence should not have been modified by Emkes without review by a jury.

Johnson County Prosecutor Lance Hamner said his office will ask the attorney generals office to appeal the decision to the Indiana Supreme Court. * * *

The appellate court based its decision on a U.S. Supreme Court ruling* that came down in June, six months after Trusley was sentenced in Johnson County.

This is the first Indiana case to have a decision reversed based on the national ruling, which prevents judges from unilaterally extending sentences before a jury can determine whether certain factors warrant that action.

Even though state law permits the judge to increase the sentence for certain reasons, the nations high court said such decisions require additional fact-finding that the Constitution reserves for juries, not judges.

Two of the appellate judges agreed, but Judge Nancy Vaidik disagreed and reinforced her support of Emkes decision. * * *
____
*Blakely v. Washington

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to

Indiana Decisions - Ten posted today by the Court of Appeals

Old Romney Dev. Co. v. Tippecanoe County and State of Indiana (11/30/04 IndCtApp) [Real Estate; Takings]
Bailey, Judge

* * * Old Romney raises one issue on appeal, which we restate as whether the trial court erroneously granted summary judgment to Appellees because Appellees act of closing the intersection of U.S. 231 and County Road 300 South constituted a regulatory taking for which Old Romney is entitled to damages under the doctrine of inverse condemnation. * * *

Old Romneys right of access to U.S. 231 has not been cut off or interfered with such that it has no other reasonable means of access. Indeed, Old Romney concedes that it has a circuitous access to U.S. 231, via State Road 300 South, Old Romney Road, and State Road 25. Accordingly, Old Romney can still reach its land by the public road system, although the distance will be greater and the route circuitous. Because Old Romney retains a reasonable means of accessing U.S. 231, it has failed to demonstrate that a compensable taking has occurred. Accordingly, the trial court did not err by denying Old Romneys partial motion for summary judgment and by granting summary judgment to Appellees.

For the foregoing reasons, we affirm the trial courts summary judgment in favor of Appellees on Old Romneys claim for inverse condemnation. Affirmed.
SHARPNACK, J., and MAY, J., concur.

Michael Siegel v. Marjorie Williams (11/30/04 IndCtApp) [Torts; Fraud; Malpractice]
Bailey, Judge
* * * On April 28, 1988, Marjorie was caring for her daughter at Wishard Memorial Hospital in Indianapolis, Indiana. Marjories daughter had been diagnosed with AIDS caused by a blood transfusion in the early 1980s. In the early morning hours, Marjorie was assisting her daughter when she was stuck by a hypodermic needle hidden in her daughters bed. Apparently, a Wishard employee had failed to dispose of the needle after taking a blood sample. Marjorie suffered emotional trauma as a result of her fear of contracting AIDS, and sought counsel from Siegel, an attorney licensed to practice law in Indiana*, to file a negligence claim against Wishard. Siegel failed to file a notice of tort claim within 180 days of April 28, 1988, which was a statutory prerequisite for maintaining an action against Wishard.See footnote Marjorie ultimately entered into a settlement agreement with the hospital for $5,000.00.

The Williamses hired different counsel to pursue an attorney malpractice action against Siegel. On November 13, 1992, the second day of trial, Siegel told Marjories counsel that he would settle the claim for $25,000, which was all that he had because his wife had gotten all of his money in their divorce. He also stated that if the jury awarded more than $25,000, he would declare bankruptcy. At the time Siegel made these statements, he had filed an appearance in the case and was an attorney of record before the court. Based upon Siegels statements, the Williamses agreed to settle their claim. The Hendricks County trial court noted the settlement, and the Williamses filed a satisfaction and release of judgment on April 14, 1993.

Approximately two years later, Scott Weathers, Marjories attorney in the attorney malpractice action, encountered Siegel outside of the Marion County court building. Siegel told Weathers that he pulled one over on [the Williamses] because he could have paid a judgment of three hundred, four hundred, five hundred thousand dollars, and I got out of it for twenty-five.

On October 28, 1998, the Williamses filed a second complaint against Siegel in Marion County, alleging fraud and misrepresentation which induced the Williamses to settle the attorney malpractice claim. Siegel filed a motion to dismiss for lack of jurisdiction, arguing that the complaint was actually a Trial Rule 60 motion to set aside the prior judgment entered by the Hendricks County trial court. The trial court denied the motion. On November 24, 2003, the trial court conducted a bench trial. Mary Findling, an Indianapolis attorney with seventeen years of experience, testified that, in her opinion, the Williamses claim against Wishard would have been worth between $100,000 and $150,000. The trial court made special findings, and entered judgment against Siegel for $100,000, and reduced this award by $30,000 to account for the prior settlements. This appeal ensued. * * *

Based upon the foregoing, the trial court had jurisdiction over the Williamses fraud complaint, and the evidence supported its findings. Accordingly, we affirm the judgment of the trial court. Affirmed.
SHARPNACK, J., and MAY, J., concur.
_____
* Siegels license to practice law was subsequently suspended for intentionally deceiving a tribunal in an unrelated matter. In re Siegel, 708 N.E.2d 869 (Ind. 1999).

Richard E. Payton v. State of Indiana (11/30/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge
* * * Payton raises two issues, the first of which we restate as whether the evidence is sufficient to support his convictions for sexual battery. We do not address this issue. Rather, we address, sua sponte, whether Paytons simultaneous convictions for sexual battery as Class D felonies, child molesting as Class C felonies, and sexual misconduct with a minor as a Class C felony violate the Indiana Constitutions prohibition against double jeopardy. The second issue raised by Payton is whether the trial court abused its discretion when it imposed the thirty-nine-year sentence. * * *

For the foregoing reasons, we reverse Paytons convictions for sexual battery and remand to the trial court with instructions to vacate Paytons conviction of the lesser-included offenses of sexual battery and enter judgments of conviction and sentence only upon the greater offenses of child molesting and sexual misconduct with a minor. We also revise Paytons aggregate sentence to twenty-five and one-half years. Reversed and remanded in part and revised in part.
DARDEN, J., concurs.
MATHIAS, J., concurs in part and dissents in part with separate opinion.
I concur with the majoritys determination that Paytons convictions of the lesser-included offenses of sexual battery must be vacated on double jeopardy grounds. However, believing that Paytons sentence is entirely appropriate, I respectfully dissent from the majoritys decision to modify that sentence. * * *

James H. Higgason, Jr. v. Chris Stogsdill, et al (11/30/04 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
James H. Higgason, pro se, appeals a grant of summary judgment in favor of all the defendants in the latest of what has become a steady stream of civil rights lawsuits filed from prison by Higgason. Those defendants, namely, Chris Stogsdill, Art Davis, Dave Thomson, Michelle Shake, and Lee Hoefling (collectively referred to as the Defendants), were employees at the Wabash Valley Correctional Facility (the WVCF). Upon appeal, Higgason challenges the grant of summary judgment. We affirm. * * *

That is, in light of Higgasons propensity toward endless litigation, we will impose a screening mechanism to forestall future frivolous lawsuits.
Therefore, in addition to affirming summary judgment in favor of the Defendants and against Higgason, we impose the following conditions upon Higgason with respect to any future lawsuits that spring directly or indirectly from the adequacy of the procedures, materials, or access to the mail room and the law library at the WVCF, and with respect to the copying of materials at the librarys expense: * * *
Judgment affirmed.
MATHIAS, J., and DARDEN, J., concur.

James H. Higgason, Jr. v. Bruce Lemmon, et al (11/30/04 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
James H. Higgason, pro se, appeals a grant of summary judgment in favor of all the defendants in yet another civil rights lawsuit filed from prison by Higgason. Those defendants, namely, Bruce Lemmon, Ron Batchelor, Vera Barnett, Dick Brown, Jerry Snyder, Ron McCullough, William Gadberry, F. Brannick, and Teresa Stephens were employees at the Wabash Valley Correctional Facility (the WVCF), where Higgason was incarcerated in the Special Housing Unit (the SHU). Upon appeal, Higgason challenges the grant of summary judgment. We affirm. * * *

In light of the issues raised in this appeal, we will once again place conditions upon the filing of future lawsuits concerning the matters alleged in the instant complaint.
Therefore, in addition to affirming summary judgment in favor of the defendants and against Higgason, we impose the following conditions upon Higgason concerning any future lawsuits that spring directly or indirectly from the matters addressed above: * * *
Judgment affirmed.
BAKER, J., and DARDEN, J., concur.

James Strezovski, et al v. George R. Frazee, et al (11/30/04 IndCtApp) [Real Property; Tax Sale]
Riley, Judge
Appellants-Plaintiffs, James Strezovski and W.D. Connette (collectively, the Appellants), appeal the trial courts order in favor of Appellees-Defendants, George R. Frazee and Elaine Frazee (Elaine) (collectively, the Frazees), denying Appellants Verified Petition for Order Directing Issuance of Tax Deed By the Lake County Auditor (Petition). We reverse and remand with instructions.

Issue. Appellants raise two issues on appeal, which we consolidate and restate as: whether the trial court erred in denying their Petition thereby granting the Frazees time beyond the one-year redemption period pursuant to Indiana Code 6-1.1-25-1; 6-1.1-25-4; and 6-1.1-25-4.6. * * *

Here, the record reveals that the trial court neglected to apply the unambiguous language of the statutes in determining whether to grant or deny the Appellants Petition. In particular, Indiana Code 6-1.1-25-4.6(b) clearly mandates the trial court to enter an order issuing a tax deed within sixty-one days of the filing of the Petition if the petitioner has met all necessary conditions. The statute is silent in allowing the trial court to exercise its discretion in granting additional time before ordering the issuance of a tax deed. In the instant case, the trial court did just that: after granting the Appellants Petition, the trial court nevertheless allowed the Frazees extra time to redeem the property by awarding them an additional 98 days beyond the one-year limitation for redemption of property.

Consequently, based on the clear and unambiguous language of Indiana Code 6-1.1-25-1; 6-1.1-25-4; and 6-1.1-25-4.6, we conclude that the trial court does not have the discretion to extend the period of redemption beyond the one-year limitation. See Montgomery, 677 N.E.2d at 574. Therefore, we find that the trial court erred in denying Appellants Petition.

Conclusion. Based on the foregoing, we conclude that the trial court erred in denying Appellants Petition, and therefore direct the trial court to issue the tax deed to the Appellants. Reversed and Remanded.

Timothy Woolum, Sr. v. State of Indiana (11/30/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
Woolum raises one issue on appeal, which we restate as follows: whether the trial court erred in denying Woolums Motion to Suppress evidence obtained as a result of a warrantless search of his residence which he shared with his son who was on probation. * * *

Based on the foregoing, we find that the trial court properly denied Woolums motion to suppress. Affirmed.
CRONE, J., and VAIDIK, J., concur

In the Matter of C.T.B. and L.L.B., Mindy Hinkley v. Chapman (11/30/04 IndCtApp) [Family Law]
Sullivan, Judge
Mindy Hinkley appeals the trial courts order granting Erinn and Bradley Chapmans petition for permanent guardianship over Hinkleys son, L.B. * * *

Without reweighing the evidence or judging witness credibility, we conclude that the trial court could have concluded that the judgment was established by clear and convincing evidence. Therefore, the trial court did not abuse its discretion in appointing the Chapmans as guardians. The judgment is affirmed.
NAJAM, J., and BARNES, J., concur.

C.S. v. State of Indiana (11/30/04 IndCtApp) [Juvenile Law]
Garrard, Senior Judge
C.S. was adjudged a delinquent pursuant to a plea agreement. At the dispositional hearing on December 3, 2003, he was made a ward of the Department of Corrections for housing in any correctional facility for children. This order was then suspended, and he was placed upon strict probation. He first met with his probation officer five days later on December 8. At that time he gave a urine sample for a drug screen. A week later the probation officer received the results of the screen, which showed positive for cocaine metabolites. She then filed a petition to revoke probation. * * *

Because the sample was taken only five days after C.S. was placed on probation, we are left to merely speculate whether he used cocaine before or after probation was imposed. We are unable to say that the evidence favorable to the decision, and the reasonable inferences therefrom, are sufficient to establish by a preponderance of the evidence that C.S. used cocaine at some time after he was placed on probation.

It follows that the decision revoking probation must be reversed and the case remanded for such further proceedings as may be necessary. Reversed and remanded.
ROBB, J., and BAILEY, J., concur.

Robert Bell v. State of Indiana (11/30/04 IndCtApp) [Criminal Law & Procedure]
Darden, Judge
Robert Bell (Bell) appeals the trial court's denial of his motion to suppress. We reverse.

Issue. Whether Bell's constitutional rights against unreasonable search and seizure were violated. * * *

The purpose of Indiana's Constitution, Article I, 11, is "to protect from unreasonable police activity those areas of life that Hoosiers regard as private." Scott v. State, 775 N.E.2d 1207, 1211 (Ind. Ct. App. 2002) (citing Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995)). In general, "Hoosiers regard their automobiles as private and cannot easily abide their uninvited intrusion." Id. Therefore, "In deciding whether a warrantless search and seizure violates Article One, section eleven, we must determine whether, under the totality of the circumstances, the warrantless search" of Bell's car was unreasonable. Scott, 775 N.E.2d at 1211.

The evidence is undisputed that both Bell and Sharp were immediately removed from the vehicle, handcuffed, patted down and placed in separate police vehicles. Also, Bell's weapon was retrieved before the officers commenced the search of his vehicle. Moreover, a search of the open area of the passenger compartment and inside of the glove compartment revealed no contraband. Still, without the benefit of a search warrant, the officers then proceeded to dismantle the vehicle's glove box and searched inside the vehicle's chassis. It is at this point that we find that the officers' search exceeded the bounds of reasonableness in Indiana. Based upon the facts and circumstances of this case, we do not believe that citizens of Indiana would countenance this type of warrantless search that occurred here. As a result, we find that under the totality of the circumstances, the search was unreasonable and the motion to suppress should have been granted. See Fox v. State, 797 N.E.2d 1173, 1177 (Ind. Ct. App. 2003).

We reverse the trial court and order the drugs found in the chassis of Bell's vehicle suppressed.
BAKER, J., and FRIEDLANDER, J., concur.

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts one

Monetta Finan Inc v. SEC (On Petition for Review of an Order of
the Securities Exchange Commission)

Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Monetta Financial Services, Inc.
(MFS), a registered investment adviser, and its president,
Robert Bacarella, seek review of a Securities and Exchange
Commission (SEC or Commission) order finding that MFS
violated Section 206(2) of the Investment Advisers Act by
failing to disclose that it allocated shares of Initial Public
Offerings (IPOs) to certain directors of its mutual fund
clients and that Bacarella aided and abetted in the violation.
While we agree with the SEC that MFS violated Section
206(2), we find that there is insufficient evidence to support
a finding that Bacarella aided and abetted the violation.
Likewise, we find that the sanctions the SEC imposed
against MFS were excessive. * * *

We, therefore, vacate the SECs order imposing sanctions
and the portion of the SECs opinion which reasons that
sanctions are appropriate, and we remand to the Commission
for reconsideration in a manner consistent with this
opinion of the sanctions imposed against MFS.

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Indiana Decisions

Environment/Economic Development - Gary-NIPSCO lakefront deal moves forward

The Gary Post-Tribune reports today:


Gary Mayor Scott Kings plans for an open lakefront and expanded airport are closer to fruition after reaching a deal with NIPSCO for the city to acquire the Dean H. Mitchell Generating Station. Under the deal, the city gets 100 acres. King plans to use much of that land to expand Gary/Chicago International Airports smaller runway so it can accommodate large jets.

There is only so much shoreline on the Great Lakes, King said. This is long overdue. We have an obligation to people to be as wise of a shepherd of this incredible asset.

The area is close to property owned by Majestic Star Casino developer Don Barden and a 200-acre parcel the city would claim in a property tax settlement with U.S. Steel. Were talking about a water-front in excess of 500 acres, King said. The meetings with NIPSCO have been positive and non-confrontational.

The city is contracting with a third party, which will provide insurance so that the costs to clean up the 100-acre site will be fixed and not increase later. Northern Indiana Public Service Co. says the generating plant has asbestos problems and will likely have PCBs and possibly other chemicals. * * *

Because the cost of remediating the site could be staggering, both NIPSCO and the city are contacting a third-party consultant to arrange for an insured fixed-price contract for the demolition and cleanup of the property.

The city hopes to select this company by next month and wants an estimated cost of remediation and demolition by next fall. The consultant will study the site and come up with the proposed costs. King said if the costs to clean the site go over the set price, the insurance will pay the remainder.

NIPSCO is under no obligation to fund the costs to clean the site under the deal. The city will try to drum up financial resources from state and federal officials. King admitted the cost of cleaning up the power plant site could change once the process begins. * * *

Earlier this year, NIPSCO and the city of Gary reached an agreement in which the company would not restart the aging Mitchell power plant. NIPSCO President Mark Maassel maintains the generating station, which was built in the 1950s, is obsolete and unreliable and would cost too much to start up again.

We dont see that as an effective way to serve customers, Maassel said. It costs us more to restart it.

In May, King petitioned the Indiana Utility Regulatory Commission to take over the site after learning that the power company was considering restarting the plant. NIPSCO shuttered the plant in March 2002, but had listed the shutdown as indefinite.

An earlier ILB entry on these plans can be found here, dated July 25, 2004.

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Environment

Indiana Law - More on Multiyear Contract Dispute in Lake County

Today, in a story titled "Town files appeal in chief's contract dispute: John Shelhart's attorney says his client is owed $125,000 in back pay," the Munster Times reports that the town of Merrillville:

has chosen to fight an earlier court decision favoring former Police Chief John Shelhart.

Town Attorney Stephen Bower said he filed a request last week seeking to appeal a judgement made by Lake Superior Court Judge Robert Pete.

Pete said in a Nov. 5 ruling that a March 2003 contract between Shelhart and the Town Council was legally binding. He said the Town Council breached the contract when it removed Shelhart on Jan. 9 without just cause and moved him to the position of Emergency Medical Services director. * * *

Bower said he would like the appeals court to clarify some of the issues in Pete's ruling, including whether or not the judgement opens the door for all governmental entities in the state to enter in to long-term employment contracts with policy-making personnel.

The town has contended the contract with Shelhart was illegal because it restricted the right of a majority of the new Town Council to remove the police chief and name a successor.

Shelhart's contract, which was approved in January 2003, was set to expire Dec. 31, 2005.

Bower also maintains Merrillville's situation is similar to one in New Chicago.

In that case, Lake Circuit Court Judge Gerald Svetanoff ruled the contract of former New Chicago Police Chief Ronald Taylor couldn't be extended beyond the term of the sitting New Chicago Town Council.

Access a Nov. 16th ILB entry on this dispute here.

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Indiana Law

Indiana Law - Local government rules and procedures

"Valpo updating code for boards" is the headline of this story today in the Munster Times. Some quotes:

VALPARAISO | Even before the city was hit with of complaints about proper public notification, Planning Director Craig Phillips knew there were problems.

"There were some things I was alarmed by when I came on board, and I wanted to correct," Phillips said. "I had started working on a revamp of the rules before this came up."

The first problem he noticed was that it was very hard to find a copy of the rules for the Plan Commission and Board of Zoning Appeals. Then he found conflicting versions. Now he's trying to update them.

The notification for a public hearing by the board on plans to build a water tower brought the inadequacies to light.

The city published notice of the hearing 10 days in advance, which complies with state law, but the rules at the time required at least 15 days notice. The city held a special meeting to rehear the request and changed the rules to match state law. * * *

Although the rules on notification are the most glaring inadequacy of the rules, Phillips said clarification is needed on what constitutes a quorum, the percent of the board that has to vote and the definition of what is a final action.

He said the Plan Commission and Board of Zoning Appeals have more specific standards than other panels. While the rules on 10 days' notice have been changed to match the state, Phillips said clarification is needed on who the "interested parties" are who must be notified.

"We tend to send out notices 10 days ahead, but we missed this time and got called on it," he said. "We want to make sure it's done properly, and everybody knows what the rules are. Citizen participation and involvement are very important."

He and Lyp have rewritten much of the rules for both boards, but the finished product probably won't be ready until early next year. One of the things the new rules will do is cite the corresponding state statute. Phillips said it's not required, but it's helpful for anyone seeking the information.

"There's too much activity in the city for us to be sloppy," he said. "Too many things are caught on a technicality that is avoidable."

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Indiana Law

Indiana Government - Daniels' team crafting legislative agenda

A story in the South Bend Tribune by Martin DeAgostino reports:

INDIANAPOLIS -- Preliminary drafts of the Daniels administration's legislative agenda are expected soon, after meetings last week between the incoming Republican administration and the state agency that drafts legislation.

Lt. Gov.-elect Becky Skillman said the proposals can be grouped in four broad headings, with jobs and economic growth at the top of the list. The other areas are government reorganization, ethics and education. * * *

Skillman said the economic components of the package will include a sales tax exemption for research and development; automatic tax abatements and credits for new investments and jobs, respectively; and a switch to daylight-saving time.

Asked whether Daniels will seek initially to privatize some government services, Skillman said "no." "I don't see any measure that I would call a privatization bill," she said.

None of Daniels' broad planks should surprise lawmakers, given their prominence in his campaign. But the details are sure to spark debate even among Republican lawmakers who share Daniels' broader goals.

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Indiana Government

Indiana Decisions - STAR editorial on last week's visitation rights ruling

The Indianapolis Star editorializes this morning on last week's Court of Appeals ruling: In Re: A.B. v. S.B, stating:

Strike out the mention of King's sexual orientation or how her child was conceived -- with the help of her brother -- and it could have been about anyone involved in any kind of nontraditional family: A man looking for visitation rights to a boy who isn't his son by blood, but whom he helped raise while living with the child's mother. Or a woman who gained visitation rights informally to her daughter as part of an "open adoption."

Such arrangements have grown in recent decades. Yet states such as Indiana haven't updated their law books to deal with the consequences, either because such matters have been settled out of court or, as in the case of gay marriage, are highly controversial.

Which means judges still have to make sense of this chaos, especially when children are involved. Not only do they have to look at legal precedents, but also at each situation individually. Appellate judges in the King case rightly determined that King's "bonded, dependent, parent-child relationship," along with a state Supreme Court's ruling in another nontraditional case, more than established her parental rights.

The case touches only peripherally on the subject of gay marriage, and by no means begins to settle the argument. That in time will be up to the courts, the legislature and, ultimately, in all likelihood the voters.

For now, however, the court was asked to settle a messy, real-world situation that defied easy answers. By allowing a mother to reunite with a child, the appeals court made the right decision.

See this earlier ILB entry here; access a pdf version of the Court's decision (via the ILB) here.

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Indiana Decisions

Indiana Decisions - U.S. Supreme Court rejects appeal of 25-year-old murders

As reported in this AP story yesterday:

WASHINGTON -- The Supreme Court refused today to review an appeal from an Indiana death row inmate convicted in the killings nearly 25 years ago of two young children and their parents.

The court did not comment in refusing to hear the appeal filed by attorneys for Donald R. Wallace, 47. Lower courts have upheld his death sentence for the murders of Theresa and Patrick Gilligan and their two children inside their Evansville, Ind., home.

A story by Maureen Hayden of the Evansville Courier & Press today recounts the details of the crime.

Posted by Marcia Oddi on Tuesday, November 30, 2004
Posted to Indiana Decisions

Monday, November 29, 2004

Environment - Cinergy and sustainability

There is an interesting article today on Cinergy and its CEO, Jim Rogers, in GreenBiz.com. Here is a quote from the middle of this long interview:

GW: As a coal burner, Cinergy is obviously a target for many environmental groups. How do you convince them of the sincerity of your commitments in this area?

JR: I understand their motivations. I have learned to frame the issues from the perspective of all of stakeholders: consumers, investors, employees, the communities we serve and also broader societal concerns. We need to consider the interplay of goals and objectives from each stakeholder group, which sometimes are at odds with one another. We need to calibrate the conversation in terms of how it will affect everyone involved. I believe that the perfect is the enemy of the good. If you strive to make everything perfect, you will never make progress. Five or six years ago, I tried to get more aggressive emission reduction legislation passed -- to tie SOX, NOX and mercury all together -- and to spread reductions over a period of time. If we had been able to pass that, we would have greater reductions in our plants today than we do under the current law. But everybody sort of stiffed the idea in the hopes that eventually they would get everything they wanted tomorrow, rather than get some of it today. We cant just shut down all the coal plants -- when 52% of all electricity in this country comes from coal -- its just not do-able. Whats better is to determine how to make sure all the incremental coal plants are really good, how to retrofit some and how to shut down others that are really old. That gets us on the path to cleaner air sooner -- and it allows us to make real progress.

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Environment

Indiana Government - Stadium funding

A heads up on tonight's Nightline show on ABC, following Monday Night Football. Their description:

There's a raging dispute about how to fund huge new sports stadiums in cities around the country. The question: should public money be used because they are an economic boom, or is this simply a taxpayer rip-off?

Arlington, Texas voted on Election Day to put more than $300 million into a new stadium for the Dallas Cowboys. Tomorrow, the Washington, D.C. City Council votes on public funding for a new stadium for the city's new major league team, The Washington Nationals. San Francisco is being asked to build a new stadium for the 49ers. Correspondent Jake Tapper reports.

Our guests: Jerry Jones, owner of the Dallas Cowboys; Gavin Newsom, Mayor of San Francisco; and Kevin Delaney, associate professor of sociology at Temple University and author of Public Dollars, Private Stadiums.

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Indiana Government

Indiana Decisions - Three posted today by Court of Appeals

Lola Reum v. Marcia Mercer (Nov. 29, 2004 IndCtApp) [Real Estate; Statutory Construction]
Najam, Judge

Lola Reum appeals the trial courts judgment in favor of Marcia Mercer on Mercers complaint alleging fraud in the sale of Reums home. Reum presents the following dispositive issue for our review: whether the trial court erred when it concluded that Reum had actual knowledge of an existing defect in her homes septic system at the time of the sale. We reverse. * * *

[T]here is no evidence and there are no reasonable inferences to be drawn from the evidence that Reum had actual knowledge of any existing defect at the time that she completed the disclosure form and sold the home to Mercer in 2001.

Mercer would have us interpret the statute [IC 32-21-5] to mean that a seller is required to disclose any and all defects that have ever occurred in a home that were not professionally repaired, regardless of undisputed evidence showing that the seller had no knowledge of an existing defect at the time of disclosure. But there is simply no basis in the plain language of the statute or relevant case law to support that interpretation. A seller is only required to disclose existing defects of which she has actual knowledge at the time of the disclosure. See Verrall, 810 N.E.2d at 1164 (holding summary judgment inappropriate because question of fact regarding [sellers] knowledge of the extent of water leakage at the time the Disclosure Form was completed.); Kashman, 766 N.E.2d at 422 (noting no designated evidence that sellers had actual knowledge of any existing termite damage to the home at the time they completed the Disclosure Form); see also Pennycuff v. Fetter, 409 N.E.2d 1179, 1180 (Ind. Ct. App. 1980) (holding no showing of fraud where there was absolutely no evidence that the [seller] knew, during the sale negotiations, of their negligence [in causing water pipes to burst] or that the pipes had burst, if indeed they were at the time. What was not open to observation to the [buyers] was not open to the [seller].).

We hold that the trial courts judgment in favor of Mercer is clearly erroneous. We reverse and remand with instructions that the trial court enter judgment in favor of Reum. In addition, since the trial court found that the prevailing party in this case is entitled to costs and attorneys fees under the terms of the parties purchase agreement, we instruct the trial court to award Reum her reasonable attorneys fees. Reversed.
SULLIVAN, J., and BARNES, J., concur.

Mark Kinnaird v. Indiana Family and Social Services, et al. (Nov. 29, 2004 IndCtApp) [Administrative Law]
Najam, Judge
Mark E. Kinnaird appeals from the trial courts denial of his Motion to Set Aside the Indiana Family and Social Services Administrations (IFSSA) final agency action terminating Kinnairds Section 8 housing benefits. He presents a single dispositive issue on appeal, namely, whether the trial court applied the correct standard in its judicial review of the IFSSAs final agency action. We affirm. * * *

In short, we hold that Kinnaird received fair notice that he was required to advise the Housing Agency about his 130 day incarceration. And, 24 CFR 982.552 provides in relevant part that the Housing Agency may deny or terminate program assistance for a participant who violates any family obligations under the program. Appellants App. at 78. The requirement that Kinnaird notify the Housing Agency of an extended absence is listed under a section of the Contract entitled Obligations of the Family. When he failed to provide the required notice, he was in violation of the terms of the Contract. As such, the Housing Agency had discretion to terminate Kinnairds benefits under the program and to deny his request that he be reinstated as a Section 8 participant. Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur.

Collections, Inc. v. Joe D. Wolfe (Oct. 29, 2004 IndCtApp) [Contracts]
[Originally issued as NFP]
Sharpnack, Judge
Collections, Inc. (Collections) appeals the small claims courts judgment on its claim against Joe D. Wolfe. Collections raises one issue, which we restate as whether the small claims courts damage award is clearly erroneous because it did not award Collections the full amount of damages specified in the contract. We reverse and remand. * * *

Similarly, here, the three-year term was an essential element of the Agreement. Although the Agreement may seem harsh because Wolfe had completed all but three months of the Agreement, we are constrained to interpret the Agreement that the parties made. The Agreement clearly provided that: (1) Should [Wolfe] cease to be employed for any reason . . . on or before December 13, 2002, [Wolfe] shall return the full amount of the Bonus to [the Hospital] . . . ; and (2) If this Agreement is terminated by [Wolfe], repayment terms of the Agreement will apply. Thus, if Wolfe terminated his employment before December 13, 2002, he was required to repay the entire bonus. Because Wolfe terminated his employment three months before the end of the Agreements term, the repayment provisions of the Agreement require him to repay the entire $4,500.00 bonus. Consequently, we conclude that the small claims court erred by entering a judgment that only required Wolfe to repay $500.00 of the $4,500.00 bonus.

For the foregoing reasons, we reverse the judgment of the small claims court and remand for proceedings consistent with this opinion. Reversed and remanded.
BAILEY, J. and MAY, J. concur

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts one

USA v. Allen, Anthony D. (ND Ind., William C. Lee, Judge)

Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. A jury convicted defendant
Anthony Allen of burglarizing the Standard Federal Bank
in violation of 18 U.S.C. 2113(a) and 18 U.S.C. 2. Allen
challenges his conviction, arguing that: (1) the government
did not present sufficient evidence to support his conviction,
(2) the governments use of an expert shoe-print witness at
trial was improper, (3) the admission at trial of a photograph
of him taken shortly after his arrest was prejudicial,
(4) his trial counsel rendered ineffective assistance, and (5)
the district courts aiding and abetting jury instruction was
flawed. We find all of Allens arguments unpersuasive and
for the reasons stated below, we affirm.

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Indiana Decisions

Indiana Courts - Blakely in action in Northern District trial

"Jury power latest federal trend: Trials could become theatrical if juries decide sentencing as well as verdicts" is the headline to a great report today, by Bill Dolan, in the Munster Times. Some quotes:

EAST CHICAGO | Three city officials at a recent special hearing faced a federal jury that had just convicted them of misappropriating federal funds and gave the political performances of their lives.

City councilmen Joe De la Cruz, D-at-large, and Frank Kollintzas, D-4th, dressed in somber dark suits, and City Controller Edwardo Maldonado, in mourning black shirt and pants, packed the courtroom with family and friends who exuded a sympathy for the defendants they hoped would be contagious.

They wanted the world to know they were not common criminals. Defense lawyers argued the trio had led otherwise exemplary lives and had earned another chance.

Normally, such a display would have fallen on the deaf ears of a sentencing judge who would have made them feel the full weight of federal sentencing guidelines for prison terms.

But a revolution taking place in criminal justice put the sidewalk jurors in front-row orchestra seats for a courtroom drama that either may be a one-time performance -- or replayed across the land.

A sidebar to the story explains:
How Supreme Court decision may give juries more power:

The federal sentencing guidelines were formulated two decades ago to help judges calculate the length of a prison visit or probation based on a crime's unique details and the convict's prior criminal history.

They were forumulated to ensure that convictions for similar offenses by similar defendants didn't result in widely divergent sentences, depending on the habits or particular views of judges. Instead, the guidelines sought to make sentences uniform by restricting judges from going above or below a specific range of penalties.

But the U.S. Supreme Court sent federal courts into turmoil in June with a 5-4 decision that struck down a Washington state sentencing system that is much like the federal guidelines.

The majority said a Washington state judge erred by nearly doubling the sentence of Ralph Howard Blakely Jr., who abducted his estranged wife at knife-point in 1998. They ruled only a jury could make that kind of decision.
The Seventh Circuit Court of Appeals judges in Chicago decided last month the Blakely decision, though based on a state case, dooms the federal guidelines. The Supreme Court, which has heard arguments for and against the guidelines, is expected to rule soon.

The U.S. Justice Department, fearing the federal sentencing guidelines for judges will be overturned, has demanded separate jury verdicts in cases where they want a defendant's sentence enhanced.

The special sentencing hearing in East Chicago sidewalk case was the first in the Northern Indiana District to be held since the Blakely ruling. The first such hearing in the country took place earlier this month in Houston, Texas, in a trial involving the Enron stock scandal.

The main story notes:
The special jury hearing could be overturned by a later judicial ruling. But area lawyers are betting on the new trend in federal criminal justice -- jury power. That is, allowing juries to have more of a say in sentencing, not just in delivering a verdict.

"I think it's a great thing," Arlington Foley, a veteran Merrillville defense lawyer, said.

"Years ago, juries used to know what the penalties were and a lot of times they issued compromise verdicts. Now they are getting back to letting juries compromise to do that again.

"Now, maybe sympathy does filter into the equation a little bit at sentencing, at least jurors get their opportunity to say they felt bad about finding the person guilty, but maybe they can cut the person some slack," Foley said.

T. Edward Page, president of the Lake County Bar Association and a former criminal court magistrate, said current federal sentencing guidelines put too much power in the hands of court probation officers who fit the facts of the crime and the person's criminal background into a complex grid of possible sentences.

"Jurors were shunted aside and not being allowed to participate fully in the process. They complained to judges nationwide and that started the jurors' rights movement," Page said. He said as magistrate he let jurors take notes and ask certain questions of witnesses. He predicted other changes might occur to make jurors' jobs easier.

"Jurors were shunted aside and not being allowed to participate fully in the process. They complained to judges nationwide and that started the jurors' rights movement," Page said. He said as magistrate he let jurors take notes and ask certain questions of witnesses. He predicted other changes might occur to make jurors' jobs easier.

One former county prosecutor said jurors who have no further involvement in the criminal justice system after the case ends are more likely to give a convict a break on sentencing than a judge "whose worst fear is being reversed and looking bad. There is a temptation to go with the prosecutors, give him the guidelines -- and see you later."

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Indiana Courts

Indiana Courts - Replacement of Judge Kouros will fall to Gov. Daniels

"Our Man will select Our Judge" is how the Munster Times fashioned their headline to this Mark Kiesling column about appointing Lake County Judge Kouras' replacement. Some quotes:

It looks now like incoming Gov. Mitch Daniels will name Lake County's newest criminal court judge after all.

Early reports were that Lake County Clerk Tom Philpot wasted no time in getting the formal notification of a vacancy to members of the local commission that will select new judge candidates, but the committee will not be meeting until February.

By that time, Democratic Gov. Joe Kernan will be history and Daniels, his Republican opponent, will be in the governor's mansion or wherever Indiana governors live.

The original idea was to get the names to the governor before the end of the year, allowing Kernan to select a Democrat. Now the idea is said to be to pick candidates who are all vetted by the Lake County Democratic machine.

When a vacancy occurs, as it will Feb. 25 when Judge Joan Kouros will leave the bench, the local nominating commission seeks interested candidates.

Columnist Kiesling goes on to say:
State Rep. Charlie Brown, (D-Gary), has repeatedly called for the reintroduction of the judicial selection into the political process. I used to disagree, but after watching what's gone on the past few years, I'm beginning to agree with Brown.

Surely one cannot believe on the eve of the 2003 East Chicago mayoral election that it was coincidence that incumbent Mayor Bob Pastrick introduced new Criminal Court Judge Sal Vasquez to a predominantly Latino crowd at the Casa Blanca restaurant.

Or that it was a coincidence that when Criminal Court Judge Tom Stefaniak Jr. was named, it was Lake County Democratic Party Chairman Bob Stiglich -- not the governor -- who made the announcement.

Or that it was coincidence Kouros, the daughter of East Chicago Councilman Gus Kouros, was named by Gov. Evan Bayh, who grew up with the Pastrick kids and whose election as governor and his current position as U.S. senator he owes largely to Pastrick.

Being political does not mean being a poor judge. Being "merit" selected is no assurance of a quality judge.

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Indiana Courts

Environment - Location of odorization station at issue

The Gary Post Tribune is reporting today that Jackson Township (Porter County) "Neighbors battle NIPSCO over location of odorization station." More:

The group, Neighbors Opposing NIPSCOs Odorization Station, or NONOS, is fighting hard to keep Northern Indiana Public Service Company from putting an odorization station in their residential neighborhood.

Natural gas is odorless and colorless. Utility companies add a chemical to the gas to give it the characteristic rotten egg smell so leaks can be detected.

Weve been battling NIPSCO for about two years now, spokesman Joe Swisher said. If NIPSCO gets away with putting this facility into a residential neighborhood this time, every neighborhood is fair game. * * *

NIPSCO purchased some property on one of Jackson Townships most heavily populated streets Burdick Road. The 2.3-acre lot even had a home on it.

The site NIPSCO chose is between two homes, Eric Suchak said. This would destroy our way of life, our property values and could endanger our health and our childrens.

NIPSCO tried to get a suit dropped that NONOS filed through the Indiana Utility Regulatory Commission. The IURC denied NIPSCOs request and it will be heard downstate on Jan. 13.

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Environment

Indiana Government - Daniels to keep I-69 on fast track

"Daniels to keep I-69 on fast track" is the headline to this story today in the Evansville Courier & Press. Some quotes:

INDIANAPOLIS - While Republican Mitch Daniels won a decisive Election Day victory with promises to change much in state government, one thing he won't set a new course for is the general direction of Interstate 69 planning. * * *

But changes most likely are not in store. Ellen Whitt, the spokeswoman for Daniels' transition team and soon to be his deputy chief of staff, said Daniels isn't interested in anything that would slow down the process.

"Mitch will continue to move forward with the current process," Whitt said. "If in the midst of it there was a way to identify steps to speed things up, he'd be very interested in that."

Whitt said Daniels also backs current INDOT plans to begin construction at the southern end of the route. Daniels is still interested in changing the northern end of the road to move it from Indiana 37 west closer to the Indianapolis airport, Whitt said.

"But again only if there's a way to do it without slowing progress on the road," Whitt said.

Posted by Marcia Oddi on Monday, November 29, 2004
Posted to Indiana Government

Sunday, November 28, 2004

Indiana Courts - Changes coming to jury deliberations

"Changes coming to jury deliberations" is the headline to an AP story today that begins:

A new rule that takes effect in January could alter the dynamics of jury trials in Indiana by permitting jurors to freely discuss elements of a case before they begin deliberating.

Combined with another recent change that allows jurors to ask questions of witnesses, the new rule could lead to shorter deliberation times for Hoosier juries.

At a minimum, jurors might ask witnesses even more questions. And, having sorted out some of the trial's issues before final arguments, they might spend less time deliberating verdicts, judges predict.

The change applies both to criminal and civil cases and is mandated by a new jury rule adopted by the Indiana Supreme Court on Sept. 30 that takes effect Jan. 1. Under the old rule, jurors are ordered not to discuss the case until they start deliberating.

But trials can last days or weeks, and evidence may include technical testimony from expert witnesses. Throughout that time, jurors must keep silent about the case, both inside and outside court.

The change will mean jurors can talk about evidence among themselves in the jury room, as long as they reach no conclusion about a verdict. * * *

The new rule comes on the heels of another rule change two years ago that spelled out jurors' right to ask witnesses questions. Since then, most trial juries pose at least a handful of questions, sometimes more, judges say.

In the current format, a juror individually thinks of a question, jots it down on note paper and passes it to the judge. Starting Jan. 1, jurors might draft questions as a group in the jury room, depending on when trial recesses are taken.

Posted by Marcia Oddi on Sunday, November 28, 2004
Posted to Indiana Courts

Indiana Law - Marion County crime lab inquiry results are nearly complete

The Marion County crime lab is the subject of a long story today in the Indianapolis Star headlined "Lab inquiry results are nearly complete: Investigators expect findings soon as employees remain optimistic about their jobs and facility's future." Some quotes:

In July 2003, Marion County Prosecutor Carl Brizzi ordered retests of the 64 DNA matches that Balamurugan performed during his six-year tenure with the lab. Months later, Brizzi announced that he had lost confidence in Director Jim Hamby, saying in a court document that Hamby has "not always been readily forthcoming."

In May 2004, Mayor Bart Peterson fired Hamby and Assistant Director John Mann.

Special Prosecutor Barry Brown has been investigating the lab since January. He said two Indiana State Police investigators have sifted through thousands of pages of documents, and he expects to release his conclusions in December.

"We're reviewing transcripts of past interviews and essentially trying to hone this down into a manageable report," Brown said.

Brown said it is too soon to comment on what they have found. Lab officials insist all problems are administrative, not criminal.

The turmoil and scandal have stained the lab's reputation, but some say a recent jury verdict proves that the public is regaining confidence in the county's scientists.

In September, defense attorneys exposed the crime lab's blunders during the trial of accused serial rapist Charles Hill. In the end, the jury believed the science and convicted Hill of 24 felonies, including rape, confinement and child molesting.

"I know the science is good," said Indianapolis Police Lt. Pete Mungovan, who manages the lab's operations while the county conducts a national search for a permanent director. "Most of the problems are administrative issues, and it's not affecting the science." * * *

Meanwhile, labs across the nation have been unable to meet increased demand for all kinds of forensic testing. Backlogs of several months are very common, experts say.

"The labs have become overwhelmed," said John K. Neuner, international program manager for the Florida-based American Society of Crime Laboratory Directors/Laboratory Accreditation Board. "Everyone wants DNA done in every case now. They don't have enough people and enough equipment to keep up with it."

Nationally, 81 percent of the nation's DNA crime labs had backlogs of 16,081 cases that included more than 265,000 samples, the U.S. Department of Justice found in 2001.

Such backlogs have created an opening for entrepreneurs with the skill and the financial backing to invest in private labs. Scott Newman, a former Marion County prosecutor, and Mohammad A. Tahir, the former manager of the crime lab's DNA section, are forming a private lab in Indianapolis.

It's too soon to tell whether the Newman-Tahir lab could have any impact on the backlog in Marion County's crime lab. The county has been awarded $220,000 in federal money, Mungovan said, to pay overtime to analysts and outsource some of its DNA testing in an effort to cut the backlog.

Marion County's lab has a backlog of 58 DNA cases, 120 fingerprint cases and 190 firearms cases. The backlog means police, prosecutors and victims may wait months for their test results.

Here are the leads to some earlier Star crime lab stories. Unfortunately, the full stories are available only for a fee from the Star:
1. 2 team to form private DNA lab. November 19, 2004. A former Marion County prosecutor and a former leader at the local crime lab are teaming up to form a private DNA testing laboratory in Indianapolis. Scott Newman, who served two terms as prosecutor, confirmed he is wooing investors to the new business venture that will be operated by Mohammad A. Tahir, who resigned Sept. 22 as the technical manager of the Marion County Forensic Services Agency's DNA section. Experts say the private lab, which would be the first of its kind in ...

2. Crime lab owns white elephant. May 12, 2004. After spending $80,000 to buy a top-of-the-line DNA testing machine, officials of the Marion County crime lab say they do not have the staff available to properly operate the new equipment. During a meeting of the Forensic Services Agency board Tuesday, city Public Safety Director Robert Turner called the equipment an "$80,000 paperweight." The device, an ABI Prism 3100 Genetic Analyzer ...

3. Brizzi requests crime lab probe. January 22, 2004. Prosecutor Carl Brizzi wants a special prosecutor to consider criminal charges against the director of the Marion County crime lab, an operation mired in controversy over the validity of DNA tests in several criminal cases. "The information that has come to light is troubling, and justice demands that we get to the bottom of what happened at the crime lab," Brizzi said. Forensic Services Agency Director Jim Hamby has "not always been readily forthcoming," Brizzi wrote ...

4. Crime lab cover-up alleged. December 25, 2003. A top scientist at the Marion County crime lab is accusing his bosses of covering up serious abuses in DNA testing procedures -- and threatening reprisals against anyone who spoke out. In a Dec. 12 deposition taken in connection with a serial rape case and obtained by The Indianapolis Star, Mohammad A. Tahir, technical manager of the Forensic Services Agency's DNA section, paints a picture of the crime lab as a dictatorial place where disloyalty is punished. This latest revelation ...

Posted by Marcia Oddi on Sunday, November 28, 2004
Posted to Indiana Law

Law - Feds may open up do-not-call list to pre-recorded messages

The Chicago Sun-Times reported here yesterday that:

WASHINGTON -- The agency overseeing the national Do Not Call Registry is considering opening a loophole in the year-old program to allow companies to deliver ''pre-recorded message telemarketing.''

The Electronic Privacy Information Center, a Washington-based privacy watchdog, says the change could result in the 64 million people on the list being bombarded by ''answering-machine spam'' and other unwanted voices on voice mail.

''Even those enrolled in the Do Not Call Registry will be affected by the proposed loophole,'' the group said.

The Federal Trade Commission said it does not think the change would have any dramatic results.

The FTC goes on to say that customers who object to the recorded calls could "opt-out" (again) of receiving further calls. "The FTC has established the Web site https://secure.comment works.com/ftc-tsr for the public to comment on the proposed change by Jan. 20."

(Thanks to this item on Slashdot.org for the link.)

Posted by Marcia Oddi on Sunday, November 28, 2004
Posted to General Law Related

Law - Land-use rules in Oregon to be turned on their head

A lengthy story in the NY Times last Friday, headlined "Property Rights Law May Alter Oregon Landscape," reported on the effect of a ballot initiative adopted there on Nov. 2. Some quotes:,

PORTLAND, Ore., Nov. 20 - Over the past three decades, Oregon has earned a reputation for having the most restrictive land-use rules in the nation. Housing was grouped in and near the cities, while vast parcels of farmland and forests were untouched by so much as a suburban cul-de-sac.

Environmentalists and advocates for "smart growth" cheered the ever-growing list of rules as visionary, while some landowners, timber companies and political allies cried foul.

But in a matter of days, the landowners will get a chance to turn the tables. Under a ballot measure approved on Nov. 2, property owners who can prove that environmental or zoning rules have hurt their investments can force the government to compensate them for the losses - or get an exemption from the rules.

Supporters of the measure, which passed 60 percent to 40 percent, call it a landmark in a 30-year battle over property rights. * * *

Posted by Marcia Oddi on Sunday, November 28, 2004
Posted to General Law Related

Law - Domestic partnership benefits

According to this story on NPR this morning, two-thirds of the country's Fortune 100 companies offer domestic partner benefits. Listen here.

Posted by Marcia Oddi on Sunday, November 28, 2004
Posted to General Law Related

Indiana Government - Daniels plans to overhaul ethics rules

"Daniels plans to overhaul ethics rules: Clarifications of lobbyists designed to slow down states revolving door" is the headline to this story by Niki Kelly in Sunday's Fort Wayne Journal Gazette. Some quotes:

[Gov.-elect Mitch Daniels] has proposed a series of changes that his administration contends will take Indiana from the bottom of the nations ethics scorecard to among the top.

In the meantime, dozens of people departing state government as Gov. Joe Kernan leaves office will be the first to abide by a new cooling-off period meant to slow down the revolving door between top officials and the lobbyist ranks.

Raising ethical standards is a big part of our administration, said Ellen Whitt, Daniels deputy chief of staff. The rash of scandals in state government demonstrates that the current code of ethics is not sufficient and the ethics commission alone is not an effective deterrent.

Of Daniels 14 proposals, Whitt said several could be instituted through executive order on his first day Jan. 10. But others must either go through the rule-making process or be included in a bill to change state law.

Some of his ideas include banning all gifts to state employees, barring any employees or vendors who steal from or defraud the state from public service, requiring those who lobby the executive branch to register and disclose financial data, putting in place a revolving-door rule that forbids all state employees from lobbying any agency for a year after they leave and increasing criminal penalties for official misconduct.

Posted by Marcia Oddi on Sunday, November 28, 2004
Posted to Indiana Government

Indiana Government - Daniels' agenda slowly but surely taking shape

"Daniels' agenda slowly but surely taking shape" is the headline to this Lesley Stedman Weidenbener column this morning in the Sunday Louisville Courier Journal that talks about what may be the first proposed changes from the new administration.

Alert readers may notice that the ILB has added a new category, "Indiana Government," to identify items relating to the changes in the administrations and the upcoming legislative session.

For those interested in learning more about the upcoming legislative session, I can recommend to you this upcoming conference, "Understanding the 2005 General Assembly: An Insiders Perspective." Take a look at the agenda here. (CLE credits have been approved for 6.0 hours which includes 1.0 for ethics.)

Posted by Marcia Oddi on Sunday, November 28, 2004
Posted to Indiana Government

Saturday, November 27, 2004

Law - Judge doesn't let facts get in way of ruling

In July CNN ran this story titled "At 33, he's a two-time Supreme Court winner -- Consider this scenario: A lawyer with less than five years professional experience wins not just one, but two cases before the U.S. Supreme Court in just a three-month span." More:

Additionally, those two cases are seen as groundbreaking, akin to an earthquake rocking America's criminal justice foundations.

Jeffrey Fisher, a Seattle, Washington lawyer, did just that. * * * The two cases Fisher argued before the Supreme Court and won -- Blakely v. Washington and Crawford v. Washington -- are seen by legal observers as rulings that will substantially change criminal justice.

In Crawford, the Supreme Court in March agreed with Fisher and ruled that defendants have a constitutional right to cross-examine witnesses used against them in trial.

In the Blakely case, the high court in late June narrowly sided with Fisher in ruling that only juries, not judges, may consider any factor that could lengthen a defendant's sentence beyond the maximum established in state sentencing guidelines. * * *

The Crawford case was the more difficult of his two cases to argue, Fisher says.

"I was asking for such a dramatic change in the law, asking for a whole new system," he says. "I really just had to master a whole entire theory and prepare to defend it."

On March 8 the high court issued its 7-2 decision on Crawford in favor of Fisher. Fifteen days later, Fisher was before the justices again, arguing the Blakely case.

In the Blakely case Fisher was aided by previous court rulings on sentencing guidelines. On June 24, the high court ruled by a 5-4 vote in favor of Fisher, that facts that could lengthen a prison sentence must be proved in front of a jury beyond a reasonable doubt.

A lot has been reported here about Blakely. Re Crawford, this quote from an article in The Nassau Lawyer in August seems to best sum up it implications: "The clear import of the holding in Crawford is that both Federal and State Courts must now scrutinize their respective exceptions to the hearsay rule." More from the article:
Contemporaneous Statements. Generically called res gestae statements, two specific categories standout: Present Sense Impression and Excited Utterances.

When a declarant is not available or even identified, the present sense impression hearsay exception permits a qualified statement to be admitted into evidence by either the People or a defendant so long as the trial court is satisfied that other evidence corroborates its accuracy and that it was made contemporaneous to the event (People v. Brown, 80 NY2d 729; People v. Buie, 86 NY2d 501). Clearly, a prevalent form that this evidence takes is a 911 call.

A companion to, but distinguishable from, the present sense impression is the excited utterance a/k/a spontaneous declaration. Admissibility is predicated on an assumption that the declarant was under the stress of a startling event provoking the utterance to such a degree that declarant lacks the reflective capacity to fabricate or deviate from the truth (People v. Cotto, 92 NY2d 68). Again, the 911 call.

In light of Crawford, the continued admissibility on the People's case of these statements by an unavailable declarant on the People's case must now be questioned. Right of confrontation versus the indicia of reliability! (But see, People v. Moscat, 2004 WL 615113 (N.Y.C. Cr. Ct.) 911 call by victim is not testimonial; People v. Zaracua, 2004 WL 837914 (Cal. App. 6 Dist.) videotape statement of rape victim is testimonial.)

Now to the focus of this entry. People v. Moscat was the subject of a story this week in the NY Times. The title of the Times story was "Legal Precedent Doesn't Let Facts Stand in the Way." Some quotes from the story:
A Bronx Criminal Court judge appeared to stake out some novel legal ground just weeks after a United States Supreme Court decision. He ruled that prosecutors could use 911 recordings of the woman's anguished call for help as evidence, even though she would not testify.

Within weeks, prosecutors and judges around the country seized on the March 25 decision, by Judge Ethan Greenberg, citing it as important precedent as they wrestled with their own cases. In all, the decision would be referenced in 15 high-level court cases, from North Carolina to Nevada, and it was included in the 2004 edition of a widely used law textbook.

There was a problem, however, with the decision rendered by Judge Greenberg in People v. Moscat. None of the assumptions the judge based his opinion on were actually fact. The person captured on the tape in that particular case was, it turned out, a neighbor, not the victim. The call had been made some nine hours after the alleged assault, not while it was happening. And prosecutors eventually abandoned the case. * * *

Whatever the case, none of this seems likely to blunt the impact of the ruling, which continues to have a legal life of its own. And in that, People v. Moscat provides an interesting window into the world of court decisions: how a ruling in March by a lower-court judge in the Bronx almost instantly traveled through a network of lawyers and judges eager to make new law, and how little it mattered that the facts of the case did not apply.

"Moscat is leading the charge," said Richard D. Friedman, of the University of Michigan Law School and a criminal law expert. Judge Greenberg's ruling "is the most frequently cited decision in the 911 area."

The Bronx decision came as courts across the country were wrestling with questions about how to prosecute crimes when accusers would not appear for cross-examination. Courts were trying to find the balance between punishing abusers and making sure they got the chance to challenge their accusers, a right laid out in the Sixth Amendment to the Constitution.

But does it matter now that the facts in Moscat were wrong? The Times article continues:
But the decision [has] already taken flight, carrying all over the country the name of the Bronx case. In California, prosecutors cited it in an appeal of a case in which a 911 caller identified a gunman. A North Carolina appeals court judge quoted it in a kidnapping case. In Washington State, prosecutors used it in arguing an appeal of a domestic violence case that involved a 911 call.

John M. Tyson, the North Carolina judge who cited the ruling extensively in a ruling in May, said that he was surprised to learn the facts of the Moscat case, but that, simply put, Judge Greenberg's reasoning fitted. "We were looking for a legal precedent," Judge Tyson said. "Moscat was the case in point."

Finally, the Times article brings in the much-revered Judge Cardozo, stating:
Legal history is not without cases of judges making decisions based on mistaken assumptions. In a landmark ruling for personal injury cases, Benjamin N. Cardozo, a Court of Appeals judge in New York, ruled in 1916 that a driver should be able to recover damages from a car maker, after one of the driver's car wheels collapsed.

But at trial, a more nuanced picture had emerged. The driver had been speeding and had hit a large patch of gravel in the road, said James A. Henderson Jr., a professor at Cornell Law School, who discovered the inconsistencies while studying the case for an academic article in 2002. "It's like an old friend you assumed you knew, and it turns out you didn't," he said, referring to the case.

Judge Cardozo "thought a good appellate judge should not let the facts of a particular case bind him," Mr. Henderson said. "The case was screaming for that new rule of law, and the facts were kind of annoyingly in the way."

Judge Greenberg's ruling, like Judge Cardozo's, is going down in the legal history books for its reasoning. Prosecutors and judges who cited it said in interviews this month that its legal thinking was sound.

That case, where Judge Cardozo did not let facts get in the way, was the famous MacPherson v. Buick (1916).

Posted by Marcia Oddi on Saturday, November 27, 2004
Posted to General Law Related

Indiana Courts - Noble County Courthouse restored

"Courthouse recaptures its dignity: Noble landmark renovated" is the headline to this story today in the Fort Wayne Journal Gazette. Some quotes:

With the third-floor courtrooms virtually complete, the focus has now shifted to the offices of the second floor and the details on the walls, including hanging black-and-white historical photographs of the courthouse and corresponding historic happenings.

Photographs depict the infamous Slide for Life in 1908, in which an Ohio woman slid on an 800-foot-long wire from the Courthouse bell tower into an alley, and a 1909 stunt at the Albion Street Fair, in which a man dived from a 90-foot-high ladder into a large barrel of water.

It just adds a lot to the life of the building, Laur said, zooming in to details in the pictures, displayed on his computer. So that people can get some feel for their heritage, its important that this building reflect not just today.

Many of the photos, which were hung last week in the jewel-toned decor of the Courthouse, were lent from the Old Jail Museum in Albion. So are the judge and witness chairs in the Circuit Court room.

The original wooden jury chairs in the courtroom were refinished after stripping off a 1950s veneer and given new leather seats, and new attorneys chairs were modeled after the jury chairs.

The bailiffs desk was taken back from the Superior Court room, where it had functioned as the judges bench.

We just scoured, Laur said. It was just sort of a collective effort to find all the pieces that were left.

County officials even traveled to Bryan, Ohio, which is home to a cousin courthouse designed by the same architect and built two years later, to learn more about that countys courthouse.

Noble County Historian Bob Gagen, who also serves as secretary of the Noble County Historical Society, visited Bryan and is pleased with the Noble restoration.

Posted by Marcia Oddi on Saturday, November 27, 2004
Posted to Indiana Courts

Indiana Government - Gov-elect Daniels names new head of State Personnel Dept.

The Fort Wayne Journal Gazette is reporting this morning that:

Gov.-elect Mitch Daniels announced Debra Minott, who was once general counsel and secretary of Fort Waynes Essex International, will head the State Personnel Department.

A native of Grand Rapids, Mich., Minott spent 11 years at Eli Lilly and Co. after starting her legal career at the Indianapolis law firm of Ice Miller. * * *

Like Pat Miller, Chuck Schalliol, and others to come, Deb is a top talent who has never before served in public life, Daniels said in a written statement. From the beginning weve said that we would bring a new crew with unprecedented abilities and a fresh outlook, and you are seeing that start to take shape.

Minott said she will be searching for people who are not satisfied with business-as-usual.

The recruitment, retention and motivation of high-caliber people who are change agents will be critical in achieving our objectives, and I am ready to dive in, Minott said.

See also this press release.

Posted by Marcia Oddi on Saturday, November 27, 2004
Posted to Indiana Government

Indiana decisions - Court extends rights to gay mom

"Court extends rights to gay mom: Judges prod lawmakers to address family issues raised by new social reality and reproductive technology." That is the headline to this front-page story today in the Indianapolis Star, reporting on the decision of an Indiana Court of Appeal's panel last Wednesday, In Re: A.B. v. S.B. (11/24/04 IndCtApp) [Family Law]. Review the Indiana Law Blog summary from Nov. 24th here (last of 7 cases reviewed).

Some quotes from the Star story:

The appeals court overturned the ruling of Monroe Circuit Judge Kenneth G. Todd, who found Dawn King had no legal standing with the girl born to her former partner, Stephanie Benham, because King was not a biological parent. The child is 5 years old. * * *

King and Benham shared their home, lives and finances for nine years. Benham was impregnated with semen donated by King's brother, and King was present at the child's birth.

The little girl recognized both women as her mothers, calling King "Mama." And after the pair split in January 2002, King paid child support and had regular visits with the child until July 2003, when Benham stopped accepting the support and denied King visitation.

"I just want what any other parents wants -- a relationship with my child," said King, 35, Bloomington. She said she already has missed the child's first day of school and other milestone events. The child and Benham also live in Monroe County.

Also from the Star story:
The decision is likely to have an impact on future custody and child support cases, and issues such as access to health insurance and inheritance through the nonbiological parent, said [Courtney Joslin, an attorney with the National Center for Lesbian Rights in San Francisco] and [Fran Quigley, executive director of the Indiana Civil Liberties Union].

Previously in Indiana, the only way for same-sex partners to each attain legal parent status was through a "second-parent adoption," a costly undertaking that grants parental rights to a nonbiological parent. However, some judges in Indiana have refused to allow the second-parent adoptions for same-sex partners.

Fishers attorney Sean C. Lemieux, who represented King, said the case is about the rights of parents and children and was based on a state Supreme Court ruling involving a married heterosexual couple who had a child through artificial insemination.

"It is not the courts that have engendered the diverse composition of today's families," [Judge Ezra H.] Friedlander wrote in the decision. "It is the advancement of reproductive technologies and society's recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle."

Concurring with Friedlander in the case were Judges Carr L. Darden and Paul D. Mathias.

Lemieux said the court stopped short of setting a standard for what constitutes a nontraditional parenting partnership, something that will need to be resolved in the future.

"The decision sends the message that if you plan on bringing a child into this world through artificial insemination, there are certain rights and responsibilities not tied to marriage," he said. "What's going to be important for people in the future is to set out, ahead of time, what their intentions are, for everyone's protection."

Posted by Marcia Oddi on Saturday, November 27, 2004
Posted to Indiana Decisions

Friday, November 26, 2004

Indiana economic development - Steel, coal and power plants, and auto parts

Steel mills. "Steel still reinventing itself after 150 years: Industry changes result in better products, profits, more secure jobs" is the headline to this story today in the Munster Times. Some quotes:

Steel products are continuing to evolve from rusty to revolutionary at a time when U.S. steel production and consumption are reaching record levels despite industry consolidation and work force reductions.

The 150-year-old American integrated industry has reinvented itself during the past year as a modern manufacturing marvel with fewer larger companies producing more steel and more profits, while employing fewer workers and more technology to make the cutting-edge steel required by the industries buying its products. * * *

In Northwest Indiana -- the heart of the integrated industry where steel is made from raw materials -- steel plants are operating 24/7. Ownership changes at three of the area's five megamills triggered new labor agreements, which have allowed payroll numbers to fall to about 19,000 steel workers, down from 24,500 workers in 1999.

Although production is steady, the region is producing a record amount of steel per worker. At about 2.2 million tons a month, the region's current raw steel production is about the same as it was in 1999, according to statistics provided by the American Iron and Steel Institute.

Coal and power plants. Earlier this month the ILB posted an entry quoting from an AP story headlined "State in running for coal plants." It related that both American Electric Power and Cinergy/PSI are looking at several states for new coal gasification plants, which they say are needed to meet growing electricity demands. I was reminded of the story yesterday when I read this enthusiastic opinion piece from Wise County, Virginia - some quotes from the beginning of the piece:
Virginia City, Va. --- Electric power generation has been a hot topic among economic development officials throughout Virginia coal-producing counties with visits by utility executives to proposed sites in Wise, Lee, and Dickenson Counties with hope for an investment upwards of one billion dollars over the balance of the decade.

Saint Paul's Mayor Jack Kiser has been touting location of a coal-fired electric utility in the Virginia City section of Wise County which was recently annexed into the Town of St. Paul.

"Location of a one-billion dollar plus utility plant would lead to the most significant investment in Wise County's economy since the discovery of coal in the 19th Century," noted District One County Supervisor Ronnie Shortt while lavishing praise upon federal and state officials who are touting the region for energy plant investments.

Virginia City has the necessary ingredients: a large water supply from underground coal mines and the Clinch River; large coal reserves are available throughout the coal-producing region; several hundred acres of real estate served by NS Railroad and U.S. 58-A four-lane highway; and, local government support at the municipal, county and state levels.

If a utility were sited at Virginia City, the coal-fired electric generating plant construction would bring significant short-term construction jobs with a long-term contract demand for local coal production and long-term coal-mining jobs. Electrical engineers would be in demand over its expected life. Many regulatory and environmental approvals would be necessary from state and federal agencies over years of planning, however.

This recalls my characterization in an entry yesterday about differing perceptions: "economic blessing" vs. "environmental threat".

Auto parts. Today's Wall Street Journal (paid subscription required) has a front page story headlined: "Shopping for China: A Scourge of the Rust Belt Offers Some Hope There, Too -- Auto-Parts Maker Wanxiang Invests in U.S. Partners As Its Ambitions Expand." One quote:

Mr. Lu is swooping into the American rust belt and scooping up investments in hard-hit auto suppliers. Some of them are finding that the remedy for Chinese competition is an infusion of Chinese money, and a timely means to cut costs.

Posted by Marcia Oddi on Friday, November 26, 2004
Posted to Indiana economic development

Environment - Stories today

"Waste plant's closure raises cleanup issues: State, company estimates vary widely," is the headline to this story today in the Louisville Courier Journal about what looks to be a Kentucky "hot potato." Some quotes:

CALVERT CITY, Ky. For 30 years the LWD hazardous-waste plant's ovens destroyed tons of sludge and other industrial byproducts from the region.

But the state closed the plant this summer because of licensing and pollution problems, opening a debate about whether taxpayers will have to pay millions of dollars to decontaminate the site.

The state has estimated the cost at $1.8 million; Bluegrass Incineration LLC said in its closure plan the cost could be $11.9 million.

According to the story, "K&B Capital LLC bought the incinerator in bankruptcy for $5,000 and then transferred its interest to Bluegrass Incineration." More:
Thinking about tapping taxpayers is out of the realm of possibilities at this point in time," [Mark York, deputy secretary of the Cabinet for Environmental and Public Protection] said. "There are other options, but the cabinet will hold Bluegrass to its responsibilities to clean and close the site. If the company falls short, and contamination is still there, it could fall under the state or federal Superfund program."
A somewhat confusing story from the Munster Times today, headlined "Knollcreek residents file another complaint against city: IDEM asked to look into notification for water tower building permit," reports:
VALPARAISO: Unable to get answers to their questions about a proposed water tower on the north end of the city, residents of Knollcreek Subdivision have gone to the next step.

The homeowners association filed a complaint with the Indiana Department of Environmental Management three weeks ago. They were notified last week of a preliminary hearing on their complaint on Dec. 7 in Indianapolis. The hearing will be conducted by the Office of Environmental Adjudication.

The complaint again deals with the issue of proper notification. The homeowners earlier challenged whether proper notification was given for a city Board of Zoning Appeals hearing in May on the Water Department's request for variances to build the million-gallon tank in the Meridian Woods retirement community on Campbell Street. * * *

The zoning board repeated its earlier approval of the variances, but when the city applied for its building permit from IDEM, the homeowners filed a complaint saying proper notice of the permit application was not given.

Jason Lammertin, president of the homeowners association, said the group also is seeking answers to questions about drainage, the impact the tower would have on land values and how construction would change the topography of the area.

Posted by Marcia Oddi on Friday, November 26, 2004
Posted to Environment

Indiana Courts - Kosciusko�s court circus

"Kosciuskos court circus: Feud between judge, prosecutor costs county taxpayers" is the headline to this editorial today in the Fort Wayne Journal Gazette that begins:

A simmering dispute between the Kosciusko County prosecutor and a Superior Court judge exploded in an extraordinary court hearing earlier this week with an untenable result: Their inability to work together professionally could cost county taxpayers $10,000.

Prosecutor Steven Hearn has valid reasons to take issue with Judge James Jarrettes court demeanor and decisions. But Hearns outright refusal to represent the people of Kosciusko County and Indiana in cases of probation violations is unacceptable. Taxpayers should not have to foot up to $10,000 to pay for a special prosecutor to perform Hearns duties.

Posted by Marcia Oddi on Friday, November 26, 2004
Posted to Indiana Courts

Thursday, November 25, 2004

Law - Kentucky has its own "District 46"-type controversy

Readers will recall a number of entries late last month and early this month about the controversy surrounding Indiana House District 46. As reported in this Nov. 5, 2004 ILB entry:

In that race, the Republican candidate, Jeffrey Lee, withdrew and was replaced by current State Representative Brooks LaPlante, who earlier had decided not to run for re-election. Democrats challenged and several court rulings followed, culminating in a Court of Appeals ruling "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."
There was discussion of "resolving the issue in the Court of Appeals" after the election, and the impact of the separation of powers, and specifically Art. 4, Sec. 10 of the Constitution of the State of Indiana provides that "Each House, when assembled, shall * * * judge the elections, qualifications, and returns of its own members * * *. These concerns were put to rest, however, when the challenged candidate did not win the election, as discussed in this entry from Nov. 10, 2004.

All that background is prefatory to these stories about a disputed state senate election in Kentucky. As the Louisville Courier Journal reported Tuesday, Nov. 23rd, via an AP story:

A judge on Monday disqualified the apparent winner of a disputed state Senate election, ruling that she had not lived in Kentucky long enough to meet residency requirements.

Jefferson County Circuit Judge Barry Willett ordered the local Board of Elections not to count votes cast for Republican Dana Seum Stephenson when certifying results in the 37th District in Louisville.

Stephenson - the daughter of veteran state Sen. Dan Seum, R-Louisville - outpolled Democrat Virginia Woodward by just over 1,000 votes out of 44,522 cast in the Nov. 2 election.

Woodward filed an election-eve lawsuit claiming Stephenson had not lived in Kentucky for at least six years as required by the state Constitution to be eligible to serve in the Kentucky Senate. * * *

Stephenson's lawyer, Jim Milliman, said he would file a motion asking the Kentucky Supreme Court to hear his appeal, bypassing an intermediate appellate court. Milliman said Willett's ruling infringed on the separation of powers between the legislative and judicial branches.

"He has intruded into the exclusive province of the General Assembly to determine the qualifications and election of a member of the General Assembly," he said in an interview. "He can't tell the General Assembly how to define residence."

In his ruling, Willett noted Stephenson's testimony at a post-election hearing that she had lived in Jeffersonville, Ind., from 1997 until 2001 while attending Indiana University Southeast. Jeffersonville is just across the Ohio River from Louisville. Stephenson also had an Indiana driver's license and voted in Indiana in 1998 and 2000. * * *

"Based on these factors, Ms. Stephenson did not reside in nor become a resident of Kentucky until 2001, making her ineligible to meet the residency requirements" under the Constitution until 2007, Willett said.

Milliman said Stephenson never intended to make Jeffersonville her permanent home, and was only "temporarily gone."

I have underlined language reminiscent not only of the District 46 issues, but of concerns raised years back about a now-former Indiana Governor (and current Senator), early in his political career.

The LCJ has another story on the judge's verdict, by Joseph Gerth, that includes these quotes:

Jim Milliman, Stephenson's lawyer, said he will appeal the decision to the Kentucky Court of Appeals and will try to throw the controversy to the Republican-controlled state Senate.

"I don't know if this will rise to the level of a constitutional crisis but it could become a constitutional morass," Milliman said.

[Democrat] Woodward said she expects Republican Senate President David Williams to swear her in when the General Assembly convenes in January.

"I'm sure Sen. Williams will uphold the constitution as he is charged to do as president of the Senate and follow orders of the courts and the state Board of Elections when they certify my election," she said.

In an interview last night, Stephenson said she is "moving on to the next step." She declined further comment on the advice of her lawyer.

Her father, state Sen. Dan Seum, R-Louisville, said it had been "an emotional day" but that he believes his daughter will win in the end.

"The judge didn't have jurisdiction to rule in this case," he said. * * *

Milliman said in filing his appeal, he would ask the Court of Appeals to pass the case directly to the Kentucky Supreme Court. He said he would also ask the Republican-controlled state Senate to rule because state law gives the Senate authority to decide contested Senate elections.

Senate President David Williams had already intervened in the case, arguing through a lawyer that the court had no jurisdiction to determine the winner that membership in the Senate is up to the Senate itself as defined in the Kentucky Constitution.

In a statement yesterday Williams said, "Our attorneys have received the judge's opinion, and we are now meeting to carefully review it. We disagree with the opinion and will take all actions necessary to protect the Kentucky State Senate's constitutional authority over the election process."

Finally, for now, the LCJ has an opinion piece today on the dispute. Some quotes:
While more tightly wrapped legal minds might object, it's my sincere belief that Kentucky could use a good state senator from Indiana so why not Republican Dana Seum Stephenson?

Yes, there are those pesky residency requirements. Hidebound legislators of yore did request that candidates for the Kentucky Senate actually live in the state six years before an election and live in the district they are to represent one year before the vote. They believed such standards judicious, honorable and fair.

I say, "Picky, picky, picky." * * *

Kentuckians must also get elected to the Indiana legislature something of a culture shock because nobody up there ever gets indicted. Yet consider the cross-cultural benefits:

I'm certain that if Kentucky Republican Senate President David Williams were elected to the Indiana legislature, a great many Kentuckians would be pleased. And sending access-starved Kentuckians to Indianapolis and Hoosiers to Frankfort would have gotten that East End bridge built 40 years ago.

This flap is about self-serving politics, not the constitution. The residency rule may be too restrictive, but it's the law and should have been researched by anyone running for state Senate. Or maybe the Republicans knew the rules and hoped Democrats couldn't read. So blame the Kentucky Education Reform Act.

Meanwhile, I'm now all for allowing anyone to run for any office in any state they've recently spent a lot of time thinking about including Hawaii, Confusion and Denial.

Posted by Marcia Oddi on Thursday, November 25, 2004
Posted to General Law Related

Environment - Stories today

Superfund. The Washington Post has a story today titled "Lack of Money Slows Cleanup Of Hundreds of Superfund Sites: Federal Toxic Waste Program's Budget Is Stagnant." Readers will recognize that this is not a new story; see, for example, ILB entries from 3/17/04 and 8/16/04. But the problem is worsening, according to these quotes from today's story:

Nationwide, Superfund is grappling with a growing number of costlier and more complex sites and a chronic reluctance by Congress to raise its budget.

Facing a record budget shortfall of about $250 million and about 475 uncompleted sites, the nearly 25-year-old program aimed at protecting Americans from industrial contamination is in crisis. Program managers are scaling back their spending requests and slowing cleanups. Republicans and Democrats agree that the program needs more money, but its budget has been stagnant for a decade and its original industry-funded multibillion-dollar trust fund is broke.

"We've got a growing problem," said Thomas P. Dunne, who oversees Superfund cleanups at the Environmental Protection Agency's Office of Solid Waste and Emergency Response. Although the program has completed work on 883 nongovernmental sites since it began, 34 Superfund projects ready or almost ready for cleanup this year received no funding, Dunne said. * * *

Superfund is no longer dogged by the kind of endless litigation that defined its early years -- one hearing, in the mid-1980s, was held in the Pittsburgh Convention Center to accommodate the number of lawyers involved. The program is by most accounts more efficient than it was a decade ago, but many politicians are reluctant to embrace it because it remains a daunting problem that affects mostly Americans with little political clout.

It is, in the words of EPA consultant Philip Angell, a "program of last resort" for communities abandoned by the companies that once provided them with jobs but fouled their surroundings in the process. Although at 70 percent of sites the companies responsible pay for cleaning up the contamination they created, the government has to cover the costs for the 30 percent at which companies have gone bankrupt or are resisting a settlement, according to the EPA.

Initially focused mostly on chemical and petroleum pollution, Superfund now must cope with a wide variety of situations, including piles of mining tailings in far northeastern Oklahoma and lead sediment at the bottom of Idaho's picturesque Lake Coeur D'Alene. At the Tar Creek site in Oklahoma, authorities are so concerned about the health risks of mining refuse that they just approved $5 million to relocate as many as 100 families with young children living near the site.

Rose Acres Farms (classic example of dueling perceptions -- "economic blessing" vs. "environmental threat"). Updating our entry from Nov. 17 that reported on Indiana-based Rose Acres' permit applications to build a facility for "no more than 4 million hens and 750,000 pullets" in North Carolina, papers in that state reported Tuesday, via an AP story, that:
A proposed massive chicken farm in Hyde County has passed another regulatory test that allows it to move along even as debate continues in the economically stressed area over a need for jobs against the potential for pollution.

Indiana-based Rose Acres Farms plans to build 14 high-rise laying houses and three pullet houses near Ponzer. The site will house up to 4 million egg-laying chickens and 750,000 pullets.

Supporters say the company would provide jobs in an area that badly needs the economic boost.

Rose Acres plans to start 18 months of construction in February or March on the $55 million site. About 125 full-time jobs would be filled during that time, said Tony Wesner, the company's executive vice president. Pay would range from $8 an hour to $80,000 a year, he said.

The state Division of Water Quality issued a water-quality permit Tuesday that official say responds to many issues raised by the public and its staff.

But conservationists and environmental groups have said wastewater, ammonia emissions into the air and the birds themselves threaten a largely undeveloped area of eastern North Carolina.

Too many chickens would be too close to Pamlico Sound and to Pocosin Lakes National Wildlife Refuge where hundreds of thousands of waterfowl spend the winter, they said.

"We're greatly disappointed with the state for issuing the permit," said Courtney Washburn of the Sierra Club. "We don't believe that next to a wildlife refuge is the appropriate place for the facility."

The water quality permit requires Rose Acres Farms to monitor waste treatment ponds and application fields for migratory bird activity. If necessary, devices would be installed to "dissuade" birds.

The Washington North Carolina Daily News (the voice of the Pamlico) includes the details of the permit in its story here that begins:
RALEIGH -- Rose Acre Farms' proposed egg facility cleared final permit hurdles Tuesday, receiving water quality and solid waste permits from state regulators. The approval was announced in a Division of Water Quality Tuesday news release.

The 4-million-hen facility, slated for construction in the Ponzer community, has been in the planning stages for about two years, drawing fire from conservation opponents and ardent support from Hyde County farmers, residents and officials.

Rose Acre was granted a National Pollution Discharge Elimination System permit, a federal permit with approval authority delegated by the Environmental Protection Agency to state regulators. The permit will allow construction of 14 high-rise laying houses -- limited to no more than an annual average of 4-million hens -- three pullet houses -- limited to 750,000 pullets -- a pullet house manure storage building, wastewater aeration basin, wastewater nitrogen-reduction basin, wastewater storage building, a land application site for waste and a stormwater control structure.

Chicken carcasses and manure will be treated in a solid waste composting facility that also has been permitted by the state Division of Waste Management. However, DWQ officials say a detailed operating permit must be issued before the facility can begin functioning.

State Division of Environment and Natural Resources Secretary Bill Ross notified Rose Acre of the approval by letter, writing, "This has been an unusually complex permitting process because of the interrelated air, waste and water quality issues. I appreciate Rose Acre Farms' cooperation throughout the Department's review. I believe that the Division of Water Quality has been able to develop an NPDES permit that will protect the sensitive environment surrounding the facility. Recognizing the complexity of some of the issues, the permit also requires both Rose Acre Farms and our staff to continue to monitor the effectiveness of the management measures required under the permit and adapt to new information."

The Raleigh News & Observer published a report yesterday that begins:
The state approved permits Tuesday for a 4 million-chicken egg farm in rural Hyde County that has been welcomed as an economic blessing and criticized as an environmental threat.

The $57 million plant planned by Rose Acre Farms of Seymour, Ind., will be in the Ponzer community near the Pocosin Lakes National Wildlife Refuge. Tony A. Wesner, Rose Acre's executive vice president, said state approval could clear the way for construction to begin in about three months.

Posted by Marcia Oddi on Thursday, November 25, 2004
Posted to Environment

Wednesday, November 24, 2004

Indiana Decisions - 7 more decisions posted today by the Court of Appeals, matching yesterday's total

Kelli Jo Trusley v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

Kelli Jo Trusley entered a plea of guilty to reckless homicide, a Class C felony. The trial court sentenced her to eight years, with two years suspended. Trusley appeals her sentence, contending the enhancement of her sentence violated her Sixth Amendment right to have a jury determine the facts on which the enhancement was based. * * *

The State argues any Blakely error was harmless, as Trusley admitted to the facts that would support one of the aggravating circumstances the court found--i.e., that she was in a position of trust with respect to the victim and his family. The State correctly notes the statutory maximum sentence is that which may be imposed solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.

The State asserts, without explanation or citation to authority, that Trusleys admission at the guilty plea hearing that she was the victims day care providerSee footnote and her admission at the sentencing hearing that she provided daycare services amounts to an admission to the facts supporting the finding as an aggravating factor that Trusley was in a position of trust with respect to the victim and his family. We decline to hold that a defendants admission she is a day care provider, without more, necessarily substitutes for a jurys determination she was in a position of trust with respect to the victim to such an extent that sentence enhancement is warranted.

CONCLUSION. Trusleys sentence was enhanced because of aggravating factors other than criminal history, which aggravating factors were not found by a jury or admitted by Trusley. We accordingly remand for resentencing.
SULLIVAN, J., concurs.

VAIDIK, J., dissents with separate opinion.
I respectfully dissent with the majoritys conclusion that Trusleys admissions at her guilty plea and sentencing hearings do not constitute an admission to facts underlying the aggravating circumstance that she was in a position of trust with the ten-month-old victim. Consequently, I would affirm Trusleys enhanced sentence. * * *

I believe these admissions are sufficient to establish that Trusley was in a position of trust with the victim. Because Trusley admitted that she was the victims daycare provider and that she had custody of him at the time of his death, it is hard to imagine what other information would be necessary in order to establish that Trusley was in a position of trust with the victim. Because Trusley admitted to facts underlying the position of trust aggravator, a jury did not have to find that this aggravator existed. Because a single aggravating circumstance is adequate to justify a sentence enhancement, see Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002), rehg denied, I would affirm Trusleys enhanced sentence.

Indiana Business College v. Tracy V. Hollowell, et al (11/24/04 IndCtApp) [Procedure]
Darden, Judge

Indiana Business College ("IBC") brings this interlocutory appeal of the trial court's order certifying as a class action the lawsuit brought by Tracy V. Hollowell and forty-six other plaintiffs asserting their claims of fraud by IBC. Issue. Whether the trial court erred in certifying the class pursuant to Indiana Trial Rule 23. * * *
We affirm.
FRIEDLANDER, J., and MATHIAS, J., concur.
C.A. Bean v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
C.A. Bean appeals his conviction for Reckless Possession of Paraphernalia, as a Class D felony, following a bench trial. Bean raises two issues for our review, one of which we find dispositive, namely, whether the State presented sufficient evidence to support his conviction. We reverse. * * *

In sum, the States failure to prove that Beans possession was reckless constitutes a failure to prove an essential element of the offense. We therefore reverse Beans conviction for insufficient evidence, and he may not be retried on this charge. See Cockrell v. State, 743 N.E.2d 799, 803 (Ind. Ct. App. 2001) (When a conviction is reversed due to insufficient evidence, double jeopardy precludes retrial of the overturned conviction.). Reversed.
SULLIVAN, J., and BARNES, J., concur.

Troy Cudworth v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
Troy Cudworth appeals his convictions for Conspiracy to Commit Dealing in Methamphetamine, a Class B felony, and Possession of Chemical Reagents or Precursors with Intent to Manufacture Controlled Substances, as a Class D felony, following a jury trial. Cudworth raises three issues on appeal, one of which we find dispositive, namely, whether the trial court abused its discretion when it denied Cudworths motion to suppress evidence. We reverse. * * *

In sum, the State failed to demonstrate either exigent circumstances or probable cause required to support a lawful warrantless search. Therefore, we hold that the officers warrantless search of the home violated the Fourth Amendment, and the trial court erred when it denied Cudworths motion to suppress the evidence.

Admissions of evidence in violation of the Fourth Amendment are subject to harmless error analysis. * * * Here, the State does not argue that, even if the warrantless search violated the Fourth Amendment, the admission of the evidence recovered from Cudworths home amounts to harmless error. Indeed, without that evidence, the State presented little if no evidence to support Cudworths convictions. Therefore, we reverse and order the trial court to vacate his convictions with prejudice. Reversed.
SULLIVAN, J., and BARNES, J., concur.

State Farm Mutual v. Ruth Estep (11/24/04 IndCtApp) [Insurance; Procedure]
Friedlander, Judge
While operating his motorcycle, Dan Estep (Estep) was struck by a truck being driven by James D. Perkins. Estep suffered devastating injuries that rendered him quadriplegic. At the time of the accident, Perkins was covered by an auto insurance policy issued by State Farm Insurance Company. Estep filed a personal injury lawsuit against Perkins seeking compensatory and punitive damages. Estep died before the matter came to trial almost two years later. After Esteps death, his Estate was substituted as the plaintiff. Esteps widow, Ruth Estep, acted as personal representative for the Estate. Following a trial, a jury returned a verdict in favor of the Estate and against Perkins, in the amount of $650,000 in compensatory damages and $15,000 in punitive damages. State Farm paid the limits of its policy, which was $50,000, to the Estate. Thereafter, in proceedings supplemental initiated by the Estate, the Estate asked Perkins to assign his rights to the Estate for any bad faith claim he may have against State Farm. Perkins refused and the Estate petitioned the court to order Perkins to make the assignment. The trial court granted the Estates request and ordered Perkins to assign the aforementioned rights to the Estate. State Farm appeals that ruling, presenting the following consolidated, restated issues for review:
1. Is an insurer entitled to intervene in proceedings supplemental to defend itself against the involuntary assignment of a bad-faith claim against the insurer?
2. Did the trial court err in forcing Perkins, against Perkinss wishes, in a proceeding supplemental, to assign any claim he might have against State Farm for refusing to defend him in good faith?
3. Did the trial court err in ordering the assignment of rights without affording State Farm the opportunity to appear at a hearing and defend its interests in a proceeding supplemental?
In addition to the issues presented by State Farm, we raise the following issue sua sponte:
4. May State Farms liability to Perkins for bad faith representation be determined in a proceeding other than the instant proceeding supplemental filed by the Estate? * * *

In summary, in view of the nature and purpose of proceedings supplemental, the trial court did not err in forcing Perkins to assign his rights to any proceeds from a bad-faith claim against State Farm. State Farm was entitled to notice and to appear at all hearings on that matter, however, and therefore was entitled to intervene in the proceedings. The trial court erred in denying that request. Finally, the proceedings supplemental court must make a determination regarding the merits of the bad-faith claim, which it should do after convening a hearing at which evidence will be presented on that issue. This cause is remanded with instruction to make that determination consistent with the principles set out in this opinion.
Judgment affirmed in part, reversed in part, and remanded.
BAILEY, J., and BAKER, J., concur.

James David Marsh v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
James David Marsh appeals the revocation of his probation, presenting the following restated issues for review:
1. Did the probation court err at the revocation hearing in admitting an out-of-court statement made by a minor child?
2. Did Marsh receive ineffective assistance of counsel at the revocation proceeding when counsel failed to object to the aforementioned hearsay statement?
3. Was the evidence sufficient to support revocation?
We affirm. * * *
MATHIAS, J., and DARDEN, J., concur.
In Re: A.B. v. S.B. (11/24/04 IndCtApp) [Family Law]
Friedlander, Judge
[Note: This is a significant decision concerning the rights of domestic partners with respect to a child conceived by artificial insemination. I have posted it as an easier-to-read PDF document, accessible via the link above. It also may be of significance that Judge Friedlander is on the panel that heard oral arguments in Morrison v. Sadler, concerning same-sex marriage, on Jan. 12, 2004, now more than ten months ago -- see this ILB entry from 9/16/04.]

* * * Stephanie asserts, with little analysis, that establishing Dawn as a parent, over Stephanies objection as the childs biological parent, would violate her constitutional right to make decisions concerning the custody and control of her daughter. We do not dispute that the Due Process Clause of the Fourteenth Amendment of the United States Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57 (2000) (plurality); Guardianship of L.L., 745 N.E.2d 222 (Ind. Ct. App. 2001), trans. denied. In the instant case, however, we have determined that both Stephanie and Dawn are the legal parents of A.B. and stand on equal footing with respect to the child. When Stephanie agreed to bear and raise a child with Dawn and, thereafter, consented to and actively fostered a parent-child relationship between Dawn and A.B., she presumptively made decisions in the best interest of her child and effectively waived the right to unilaterally sever that relationship when her romantic relationship with Dawn ended.[*] Cf. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001) (observing, under similar circumstances, that biological mothers rights do not extend to erasing a relationship between her partner and her child which she voluntarily created and actively fostered simply because after the parties separation she regretted having done so); Parentage of L.B., 121 Wash. App. 460, 484, 89 P.3d 271, 283 (2004) (de facto parentage rule recognized by other states emphasizes the original consent of the legal parent to the relationship) (emphasis in original).

We conclude that the facts alleged in the complaint, including the reasonable inferences that can be drawn from those facts, are capable of supporting the relief sought by Dawn in her claim for declaratory judgment. Therefore, the trial court erroneously granted the motion to dismiss. We remand for further proceedings consistent with this opinion.
Judgment reversed and remanded.
DARDEN, J., and MATHIAS, J., concur.
____
*Contrary to Stephanies assertion on appeal, Dawns relationship with A.B. has its source in Stephanies original consent to and fostering of said relationship, rather than in the power of the State through its judiciary. Further, we do not find Dawns position akin to foster parents seeking to prevent the return of their foster children to the childrens natural parents. As our supreme court has observed: Unlike parent and step-parent relationships, foster relationships are designed to be temporary, providing a safe, nurturing environment until the child can either be returned to the natural parents or adopted by new ones. Worrell v. Elkhart County Office of Family and Children, 704 N.E.2d 1027, 1029 (Ind. 1998) (quoting Indiana Foster Family Handbook 46 (1995)). Based on the facts before us, Stephanie cannot sincerely argue that the relationship between Dawn and A.B., which she helped create, was designed to be temporary.

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending November 26, 2004

Here is the Indiana Supreme Court's transfer list for the week ending November 26, 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: James Thomas Myers v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law], involving the question of whether the search of Myers' vehicle was constitutionally permissible. The Court of Appeals decision (now vacated) affirms the trial court ruling that it was a legal search.

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to Indiana Transfer Lists

Law _ More on Trump bankruptcy

Via Findlaw.com, here is the Trump Hotels & Casino Reports Development Company, LLC's volunary petition for bankruptcy. Check p. 4, a "simplified chart depict[ing] the Company and its principal subsidiaries."

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to General Law Related

Indiana Decisions - 7th Circuit posts three, inlcuding one on political hiring

Killinger, David v. Johnson, Don (CD Ill.)

Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
FLAUM, Chief Judge. Plaintiff-appellant David Killinger
owns a bar and restaurant in the Village of Port Byron,
Illinois. Because plaintiffs establishment allegedly had sold
beer to an underage man, the mayor of Port Byron temporarily
closed the business, suspended Killingers license,
and imposed a fine. Killinger subsequently filed this suit in
federal court under 42 U.S.C. 1983 against the mayor and
the village, alleging violations of the Equal Protection and
Due Process Clauses of the Fourteenth Amendment to the
United States Constitution. The district court granted
summary judgment in favor of both defendants. We hold
that the mayor enjoys judicial immunity, and the alleged
injuries were not caused by a Port Byron policy. Accordingly,
we affirm. [Well worth reading in full.]
USA v. Jones, Philip D. (CD Ill.)
Before EASTERBROOK, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Like many people who wind up as
defendants in criminal cases, Philip D. Joness problems
began when the police stopped his car for a traffic violation.
He was arrested after police discovered that he or his
passenger had tossed two bags from his car that turned out
to contain a substantial amount of cocaine. Jones was
charged and convicted of possession of more than 500 grams
of cocaine with intent to distribute. At the trial, Jones had
unsuccessfully sought to exclude evidence of two prior convictions. The correctness of this ruling is the only remaining
issue we must resolve in this appeal. Although we conclude
that the admission of this evidence was problematic, as it
seems to show only Joness propensity to commit drug
offenses, we nonetheless also find that on this record any
error was harmless. We therefore affirm the judgment
against him.
Hall, Thomas v. Babb, Steve (SD Ill.)
Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Plaintiff Thomas Hall has brought
this suit on the basic premise (with which few would
disagree in the abstract) that political patronage is not yet
dead in Illinois. Hall was passed over for a new job within
the Illinois Department of Transportation (IDOT) in 1999.
He believed that his lack of success could be traced to the
fact that the other applicant, while a fellow member of the
Republican Party, was somehow a more zealous Republican
than Hall. Hall sued the three state officials who had interviewed
him and made the decision to hire the other applicant under
42 U.S.C. 1983 for violation of his First
Amendment rights. The district court granted summary
judgment for the defendants. While we find the allegations
in Halls complaint to be troublesome, we conclude that Hall
did not present enough evidence to bolster those allegations
at the summary judgment stage. For that narrow reason,
we affirm the judgment of the district court. * * *

It is well established that hiring, firing, or transferring
government employees based on political motivation violates
the First Amendment, with certain exceptions for policy
making positions and for employees having a confidential
relationship with a superior. See Rutan v. Republican Party
of Ill
., 497 U.S. 62, 65, 71 n.5 (1990); Elrod v. Burns, 427
U.S. 347, 367, 375 (1976). To make out a prima facie case
for this type of employment discrimination, a plaintiff must
show two things: first, that the plaintiffs conduct was constitutionally
protected, and second, that the protected conduct
was a substantial or motivating factor in the employment
decision. Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 495
(7th Cir. 2002); Nelms v. Modisett, 153 F.3d 815, 818 (7th
Cir. 1998); see also Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle
, 429 U.S. 274, 287 (1977). It is not enough to show
only that the plaintiff was of a different political persuasion
than the decisionmakers or the successful applicant. See
Nelms, 153 F.3d at 818. If a plaintiff can make the prima
facie showing, the burden shifts to the defendant to demonstrate
a legitimate, nonpolitical reason for the employment
decision. Simmons, 289 F.3d at 495; Nelms, 153 F.3d at 818. * * *

Although Halls evidence comes up short in all the ways we
have discussed, there is one point made by the defendants
that requires comment. They assert that they should prevail
as a matter of law because Hall and Barger were affiliated
with the same political party. As we indicated earlier, this
goes too far. It fails to recognize that state workers in the
Rutan-protected group are entitled to be treated apolitically.
We see nothing to distinguish patronage based on a
relatively higher level of involvement within the same po-
litical party from patronage based more simply on membership
alone in a particular party. See Tomczak v. City of
Chi
., 765 F.2d 633, 640 (7th Cir. 1985); Curinga v. City of
Clairton
, 357 F.3d 305, 311 (3d Cir. 2004). Either one
coerces public employees to engage in political activity
regardless of their wishes.

III. Although the circumstantial evidence on which Hall
wants to rely may raise some eyebrows about the hiring
practices used in his case, it is insufficient to create an issue
of material fact as to whether political motivation was
a substantial or motivating factor in the defendants decision
to hire Barger rather than Hall. Nothing he presented
was enough to overcome the uncontradicted evidence presented
by the defendants that a majority of the decisionmaking
body (that is, Piersma and Westell) did not even
know about the political backgrounds of Barger and Hall.
We therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to Indiana Decisions

Indiana Decisions - More on what constitutes an accident per IC 9-26-1-1

As reported here (2nd case) in the ILB, the Court of Appeals yesterday decided the case of Michael Armstrong v. State of Indiana, where the issue was: When a passenger jumped from defendant Armstrongs moving vehicle and was injured as a result, was Armstrong involved in an accident for purposes of IC 9-26-1-1, triggering the duties under that statute?

"Charges dropped in fatal accident" is the headline to a report on the decision today in the Evansville Courier & Press. The lead paragraphs, which pretty much encapsulate the entire decision in a nutshell:

In May 2003, when Michael C. Armstrong failed to stop his car after his teenage passenger, Craig Mobley, fell from the moving vehicle and died, the 23-year-old Armstrong was charged with leaving the scene of a fatal accident.

But Armstrong's attorney, Ivan Arnaez, argued that while his client may have had a "moral duty" to stop at the scene, he didn't have a legal duty to do so, because what happened that day didn't constitute an "accident" under strict interpretation of Indiana law. He moved for the felony charge to be dismissed. On Tuesday, the Indiana Court of Appeals agreed with Arnaez, ruling that the charge against Armstrong should be dropped, but also ruling that anyone caught in a similar situation in the future could be charged with a crime.

The Courier & Press report concludes:
In essence, the ruling means that while the appeals court believes the charge against Armstrong should be dropped, it also believes Indiana law should be interpreted broadly enough to allow prosecutors to bring charges if a similar scenario were to arise in the future. The Indiana attorney general, who argued against Arnaez's motion, has 30 days to consider whether to appeal the ruling.

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to Indiana Decisions

Indiana Courts - Report on yesterday's oral argument on school fees

Yesterday's oral argument in Nagy v. Evansville-Vanderburgh School Corp. (see this entry from yesterday) is the subject of this report today in the Evansville Courier & Press. Some quotes:

INDIANAPOLIS -The fate of the Evansville-Vanderburgh School Corporation's $20 fee now rests with the Indiana Supreme Court after representatives from both sides argued their points before the body today. * * *

Jacquelyn Bowie Suess, Nagy's attorney, argued that the EVSC fee paid the salaries of personnel who gave instruction in the schools, which is the definition of tuition under a previous Indiana court finding.

"At a minimum (tuition) has to at least be (charging for) instruction at schools," Seuss said.

She said her case did not address charging for textbooks and said the justices didn't have to tackle that issue unless they wanted to. But a few justices asked if the fee is considered tuition, what in a school apart from extracurricular activities wouldn't be considered tuition.

Patrick Shoulders, EVSC's attorney, argued that the legislature determines which classes are necessary for graduation and that charging fees for those classes would not be constitutional.

But, he said, to have the courts decide what those essential classes are goes against separation of powers and would be "an invitation to chaos." He said the case "affects every school corporation in Indiana." * * *

The Indiana Supreme Court has a reputation of being very practical and interested in what implications their decisions might have for the state. Some of Tuesday's questions followed in that vein.

Sullivan asked both sides what would happen with the state's large budget shortfall if they were to rule against the fee.

"There will be a reduction in services and level of education that schools provide," Sullivan said.

But Suess argued that she was only asking the court to do away with EVSC's $20 fee, which would not have that great of a fiscal impact.

Chief Justice Randall T. Shepard attacked that stand and asked her to "fess up" that her "notion that this is some minimalist position" was incorrect.

Shepard said if the court would rule in Nagy's favor, it would amount to a "big league proposition" of financial shifts.

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to Indiana Courts

Environment - Update to "Adviser seeks changes in sewage plant rules"

This entry from Sunday talked about the upcoming Indiana Water Pollution Control Board (WPCB) meeting, and the report to be made by David M. Wagner, Board member and Hearing Officer Appointed by the Board. November 8, 2004, to look into complaints made by citizens' groups about failing private treatment plants in Floyd County. Here are the recommendations Mr. Wagner submitted to the WPCB.

The WPCB met yesterday. As reported to me, "The board is taking no further action on the citizen's rulemaking suggested, but is requesting that the agency take a look at starting a broader rulemaking with a number of suggestions by Dave Wagner."

A story today in the Louisville Courier-Journal, headlined "State to review sewage plant rules: Action prompted by 2 Floyd groups," reports the outcome. Some quotes:

A state board unanimously approved a full-scale review of Indiana's regulations for sewage-treatment plants yesterday. * * *

"It's what we wanted and more," said Brian Zipperle, a vice president of Greenville Concerned Citizens, who attended yesterday's water pollution board meeting in Indianapolis.

The two Floyd County groups had proposed a stringent rule for limiting pollution in small streams. It would have required treated sewage to be discharged into streams in which there is always at least 10 times as much water as sewage.

David Wagner, an environmental consultant and member of the board, held hearings around the state on the groups' proposal in the fall and submitted a report at yesterday's meeting.

In the report, he recommended against that change, saying the main problems with failing sewage-treatment plants are poor maintenance and operation, not the size of the streams into which they discharge.

But he agreed with the Floyd County groups that there are widespread problems with the state's regulation of small treatment plants.

Wagner said he is pleased with the board's unanimous vote to "review the existing rules and make them better."

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to Environment

Environment - Adams Center Landfill back in the news

The Fort Wayne Journal Gazette has an editorial today titled "A landfill legacy." It is accompanied by a photo, with this caption:

Adams Center Landfill still accepted hazardous waste when this photo was taken in 1995. The landfill closed in 1998, but testing for water contamination around the site must continue for decades.
And that, according to the editorial itself, is the problem. Some quotes:
The Allen County commissioners desperately need to tighten their oversight of the countys hazardous waste tax fund, which has lost its main source of revenue. Timely action is imperative to fulfill the funds primary intent of paying to test for water contamination around Adams Center Landfill.

If county officials do not act, the fund will run dry, possibly threatening the future of the monitoring a government function that must continue for decades. * * *

The seemingly unrelated issues of the landfill and billing for hazmat spills have their common origin in a 1981 law that levied a tax on hazardous waste disposed at Adams Center Landfill. The law established the countys hazardous waste fund, financing it with 25 percent of the revenue from the landfill tax. The rest went to the state. At the time, the landfill was outside city limits, so county government had jurisdiction.

Subsequent state law allowed public safety agencies to bill businesses for hazardous waste incidents. The countys Emergency Management Agency assumed that billing responsibility for both the city and the countys other fire departments. Officials placed those revenues into the same hazardous waste fund, a questionable co-mingling.

The 1981 law permits the commissioners to use the fund for hazmat training and equipment. But the laws first listed use of the fund is establishing monitoring wells on land near the landfill; the second is analyzing samples from the monitoring wells; and the third is Conducting other types of testing and surveillance for hazardous waste contamination of land near the disposal facility.

Burrus said the county has seven wells around the landfill; an eighth well is in disrepair, he said. The county contracts with a private lab in Muncie to test the wells, but hasnt done so in about four or five years, he said. Each round of tests costs about $60,000 to $100,000, he said, and no contamination has been detected. More frequent testing would occur if contaminants were detected, Burrus said.

The landfill tax generated hundreds of thousands of dollars a year but became defunct with the landfills 1998 closing. The hazardous waste fund once had a balance of $7 million. Its balance on Sept. 30 was $2.66 million, the county treasurers office reports.

Fortunately, the public relies on more than the countys tests to monitor for leakage from the states only commercial hazardous waste landfill. The Indiana Department of Environmental Management requires the landfills owner, Waste Management, to test groundwater and send the results to IDEM for analysis. IDEM also conducts on-site inspections. How much these tests overlap with the county is unclear, but it is the county that is specifically responsible for testing outside the landfill property.

For the short term, the county commissioners must immediately take control of the fund. They should freeze all but the most vital spending. They should consider establishing a separate fund for hazmat spill billing and spending and dedicate most or all of the existing fund toward the landfill monitoring. They should involve city officials because the landfill is now in the city and because the city operates the countys principal hazmat unit.

For the long term, city and county officials need to work with IDEM, state legislators and landfill owner Waste Management to develop a long-term plan to monitor groundwater surrounding the landfill for contaminants. The landfills closing has in many ways rendered the 1981 law obsolete. New strategies for sharing the financing of the long-term monitoring may well be in order.

Posted by Marcia Oddi on Wednesday, November 24, 2004
Posted to Environment

Tuesday, November 23, 2004

Indiana Decisions - 7 today from the Court of Appeals

Accelerated Benefits Corp., et al. v. Marshall L. Peaslee (11/23/04 IndCtApp) [Securities; Contracts]
Ratliff, Senior Judge

* * * Based upon the foregoing discussion and authorities, we conclude that the trial court properly entered summary judgment in favor of Peaslee because the viatical settlements sold to Peaslee are securities as that term is defined in the Act, the transaction is not exempt from the registration requirements of the Act, and the Appellants acted as brokers/dealers, agents, and investment advisers. Affirmed.
MATHIAS, J., and CRONE, J., concur.
Michael Armstrong v. State of Indiana (11/23/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge
Michael C. Armstrong (Armstrong) was charged in the Gibson Superior Court with failure to stop after an accident resulting in death, a Class C felony. See footnote Armstrong moved to dismiss the charge. Following a hearing, the trial court denied the motion to dismiss. Thereafter, the trial court certified the matter for interlocutory appeal, and we accepted jurisdiction pursuant to Appellate Rule 14(B). Armstrong raises one issue: whether he was involved in an accident for purposes of Indiana Code section 9-26-1-1. Concluding that Armstrong was involved in an accident, but that our interpretation of the statute should not be applied retroactively to Armstrong, we reverse. * * *

Armstrong argues that the trial court improperly denied his motion to dismiss the charge against him because Indiana Code section 9-26-1-1 does not apply. Specifically, he argues that he was not involved in an accident for purposes of the statute because his vehicle did not strike Mobley. * * *

Yet Armstrong directs us to Honeycutt v. State, where a panel of this court, including this writer, determined that the scope of Indiana Code section 9-26-1-1 should be limited to incidents involving a vehicle striking something that causes injury to someone, or a vehicle striking a person and causing injury. * * *

In declining to follow Honeycutt, we acknowledge that our interpretation is so markedly different as to cause concerns about retroactive application to Armstrong. Constitutional provisions against ex post facto laws apply only to enactments by legislative bodies. [cites omitted] However, this court has recognized that the principle underlying the prohibition of ex post facto laws may limit the retroactive application of judicial decisions interpreting statutes. Id. The fundamental concept underlying the prohibition of retroactivity, whether by way of the due process clause or the prohibition against ex post facto laws, is that of fair notice to the defendant at the time he acts that his behavior is deemed criminal. Id. at 365-66. If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, [the construction] must not be given retroactive effect. Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (internal quotation marks omitted).

We note that transfer was not sought in Honeycutt. Thus, the law expressed prior to the conduct at issue here included no word from our supreme court indicating that, for purposes of the failure-to-stop statute, an accident requires that there be a person struck. However, we believe that our interpretation, while correct, is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. Id. We therefore decline to apply our interpretation to Armstrong.

For all these reasons, when Mobley jumped from Armstrongs moving vehicle and was injured as a result, Armstrong was involved in an accident for purposes of Indiana Code section 9-26-1-1, and the duties under that statute were triggered. Armstrong failed to immediately stop and remain at the scene as required by Indiana Code section 9-26-1-1(1) & (2). While the trial court properly denied Armstrongs motion to dismiss under our interpretation of Indiana Code section 9-26-1-1, this interpretation should not be applied to Armstrong retroactively, and we reverse the trial court and grant Armstrongs motion to dismiss under Honeycutt. Reversed.
BARNES, J., and CRONE, J., concur.

[See an earlier ILB writeup of this case from 9/14/04.]

Angela Michelle Shehan v. Douglas Eugene Hogan (11/23/04 IndCtApp) [Family Law]
Darden, Judge

In this appeal, the State questions the trial court's determination setting aside an Order/Notice to Withhold Income for Child Support, issued by the Bartholomew County Child Support Division to Douglas Eugene Hogan's bank, the Evansville Teachers FCU, in order to attach funds. We reverse. * * *

Here, the trial court was not presented with constitutional bases for setting aside the Notice/Order. Because the trial court offered a nonconstitutional basis for its ruling, it need not have raised, sua sponte, the constitutional issues. The trial court's judgment is reversed.
FRIEDLANDER, J., and MATHIAS, J., concur.

Marilyn Staton v. Frances N. Hawkins (11/23/04 IndCtApp) [Torts]
Vaidik
Marilyn J. Staton appeals the jury verdict in favor of Frances N. Hawkins. Because we find that Staton failed to meet her burden of proving that Hawkins failed to mitigate her damages, we find that the trial court did not abuse its discretion in removing the issue of failure to mitigate damages from the jury. Additionally, because the medical expert testified that some medical professionals would disagree with his advice to Hawkins to continue with life as normal so long as she could tolerate the pain, we cannot say the trial court abused its discretion by instructing the jury on the impact of attending medical personnel mistake on recoverable damages. Consequently, we affirm. * * *

Because Dr. Hastings viewsby his own admissiondiverge from those of some of his colleagues on what types of activities a person should participate post-injury, it would not be unreasonable for the jury to conclude that Dr. Hastings made a mistake by telling Hawkins to continue to live her life as she normally would, which included the racing of ATVs. Consequently, we cannot say that the trial court abused its discretion by instructing the jury regarding the impact of a mistake by attending medical personnel on the amount of damages recoverable by an injured plaintiff who relies on the mistaken advice. Affirmed.
RILEY, J., and CRONE, J., concur.

Anton Jarrell v. State of Indiana (11/23/04 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
Anton Jarrell appeals his conviction of Possession of a Firearm By a Serious Violent Felon, a class B felony, and Carrying a Handgun Without a License,See footnote a class C felony. Jarrell presents the following restated issues for review:
1. Did the trial court err in admitting a handgun found under the seat of the vehicle Jarrell was driving?
2. Did conviction of the two firearm offenses violate Jarrells right against double jeopardy?
3. Was the evidence sufficient to support the conviction for possession of a handgun by a serious violent felon?
We affirm in part, reverse in part, and remand. * * *
DARDEN, J., and BAKER, J., concur.
Troy E. Howard v. State of Indiana (11/23/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge
* * * Unlike its Class C felony counterpart, Class D felony operating while an habitual traffic violator is not a progressively enhanced penalty; it is simply the proscribed punishment for driving after ones license has been suspended. Accordingly, Howards habitual substance offender determination was the only enhancement of his sentence, and he was not the recipient of an improper double enhancement.

Conclusion. The trial court did not abuse its discretion, the trial court was not required to ask the jury whether they had questions before excusing each witness, and Howard did not receive an improper double enhancement. Affirmed.
DARDEN, J., and FRIEDLANDER, J., concur.

Fairland Recreational Club, Inc. v. Indianapolis Downs, LLC (11/23/04 IndCtApp) [Procedure; Attorney Fees]
BARNES, Judge
* * * The sole issue before us is whether the trial court erroneously denied Fairlands request for attorney fees and costs. * * *

Indianapolis Downs neither attempted to object to the request for admission nor indicated that it had conducted a reasonable inquiry to obtain information or that doing so would be unreasonably burdensome. Also, in its response to Interrogatory No. 7, wherein it was asked to explain why it did not admit the matter contained in Request No. 7, Indianapolis Downs merely responded by referencing its answer to Request No. 7 and did not elaborate or otherwise clarify its response to the request. Indianapolis Downs could have, and should have, put forth a greater effort to answer the request with whatever clarification was necessary to answer accurately. We warn counsel in future litigation to be more careful in complying not only with the black letter of this rule, but also the spirit of it.

Conclusion. The trial court properly denied Fairlands request to recoup fees and costs for litigation costs pursuant to Trial Rule 37(C). We affirm.
Affirmed.
NAJAM, J., and SULLIVAN, J., concur.

Posted by Marcia Oddi on Tuesday, November 23, 2004
Posted to Indiana Decisions

Indiana Decisions - One from Supreme Court

In the Matter of Mark Eugene Small (11/23/04 IndSCt) [Attorney Disciplinary]
Per Curiam
We find today that Respondent Mark Eugene Smalls mismanagement of his attorney trust account warrants his suspension from the practice of law in this state for six months. We will stay the period of suspension subject to conditions designed to ensure his compliance with basic provisions governing management of such accounts. * * *

Posted by Marcia Oddi on Tuesday, November 23, 2004
Posted to Indiana Decisions

Law - Several NPR stories today particularly relevant in Indiana

Massachusetts Creates Hi-Tech IDs to Stem Identity Theft. This month Massachusetts has begun to issue what it calls the most secure driver's license in America. Officials say the new card is nearly impossible to forge or alter. But some experts call the license just one step in stemming the growing problem of identity theft and the dangers of terrorism that comes with it. NPR's Tovia Smith reports. Listen here.

Trump Hotels File for Bankruptcy. Trump Hotels and Casino Resorts has filed for Chapter Eleven bankruptcy protection. Richard Perniciaro talks about Donald Trump's recent bankruptcy filing and new trends in legal gambling. Perniciaro is the director of the Center for Regional and Business Research at Atlantic Cape Community College. Hear Perniciaro and NPR's Steve Inskeep. Listen here.

NBA Fight Fall-Out. Last Friday night's now infamous brawl between two NBA teams and fans has started to affect other parts of the sports world. Two college football teams who also exchanged blows this past weekend have decided to forgo any bowl games this post-season. NPR s Tom Goldman reports. Listen here.

Posted by Marcia Oddi on Tuesday, November 23, 2004
Posted to General Law Related

Indiana Courts - Supreme Court library catalog goes online

This release today:

SUPREME COURT LAW LIBRARY IS NOW SEARCHABLE ON THE WEB

A searchable database of the thousands of volumes and documents at the Supreme Court Law Library is available to the public through an on-line connection over the Internet, Chief Justice Randall T. Shepard announced today.

The online catalog is accessible at: www.in.gov/judiciary/library

This is a tremendous step forward for our library. Judges, lawyers, law students, and members of the general public will all benefit from this improvement. It is one of many improvements we have planned for the library, said Chief Justice Shepard.

The on-line connection is available because the Indiana Supreme Court Law Library is a new member of the Indiana Shared Library Catalog (ISLC). The ISLC is a shared, integrated library automation system, including a web-based online catalog and integrated circulation module. The ISLC is supported by the Indiana Cooperative Library Services Authority (INCOLSA), which is a resource-sharing tool for small public, school and special libraries. INCOLSA is the statewide network providing leadership in cooperative activities for Indiana libraries.

The Law Library contains a comprehensive collection of legal materials of over 70,000 volumes and is a repository for publications produced under grants from the State Justice Institute. Items received are catalogued and listed in the Indiana Court Times. These publications are made available to judges throughout the state. The Law Library is also designated as a selective depository for United States Government publications.

The online catalog will allow the Supreme Court Law Librarys collection to become webaccessible to patrons in and beyond the library.

The Supreme Court Law Library originated with an 1867 Act of the Indiana legislature, which gave custody of the law books then in the State Library to the Supreme Court. The primary mission of the Supreme Court Law Library is to support the research needs of the judges, staff, and agencies of the Supreme Court, the Court of Appeals, and the Tax Court. The Supreme Court Law Library also serves as the primary law library for many state agencies, the Office of the Governor, the legislature, members of the private bar, and the citizens of Indiana.

Posted by Marcia Oddi on Tuesday, November 23, 2004
Posted to Indiana Courts

Indiana Courts - Oral argument today before Supreme Court in school fees case

Tuesday, Nov. 23, 2004
9:00 am - Nagy v. Evansville-Vanderburgh School Corp. (Court's Summary) [Constitutional Law]

See this August 18, 2004 IBL entry for background.

Here is the link to the Court of Appeals decision, now vacated.

Watch the oral argument online here at 9:00 a.m. Note that the Court is also hearing two other oral arguments today:

10:05 am - MacLafferty v. MacLafferty [Family Law] - Summary

10:50am - (In re Guidant Corporation), Ritter v. Dollens [Certified Question] - Summary

Posted by Marcia Oddi on Tuesday, November 23, 2004
Posted to Indiana Courts

Indiana Law - Editorial proposes changes to annexation law

An editorial today in the Indianapolis Star is headlined "Reform could prevent annexation squabbles." Some quotes:

The answer isn't piecemeal tinkering with laws, Michael Shaver recently told Star reporter Bill Ruthhart. Shaver, an annexation expert who has advised several Indiana communities on land-use issues, argues that comprehensive legislative reform is needed.

The current process of annexation opponents having to obtain 65 percent of property owners' signatures, often entailing court battles, is cumbersome and costly. While a referendum provides for more orderly discussion, lowering the remonstrance threshold to 51 percent, as some propose, would effectively bar all annexation.

Part of the solution lies in encouraging and empowering counties or regional agencies to engage in better long-range planning of land use, creating master plans that provide for orderly growth and expansion of services. Changing tax structures so cities and towns can recoup the cost of providing services to surrounding areas also might lower resistance to formal annexation.

Reforming annexation rules won't be easy. But sound, sweeping reform is much better than the piecemeal legislative tinkering that has led to chaos.

See also these earlier related ILB entries from: 11/15/04, and 11/18/04.

Posted by Marcia Oddi on Tuesday, November 23, 2004
Posted to Indiana Law

Environment - Stories yesterday

Several stories yesterday:

Septics. "Septic problems percolate in Granger: County officials aim to update ordinance," reads the headline to this story yesterday in the South Bend Tribune. The article begins:

GRANGER -- Continued suburban sprawl in St. Joseph County is causing problems under the surface. Failed and unmaintained septic systems are polluting ground water, and county health officials want to change the septic ordinance.

The county is operating under a 40-year-old ordinance. Four decades ago, Granger was made up of farm fields. From those fields grew subdivision after subdivision. When you move out to the country, you often leave behind city water and sewer lines. The health department says Granger, with its wells and septic systems, has problems with water contamination.

"We're finding there are very good reasons why each of these areas are contaminated and there are things we can do to prevent that from re-occurring," said Marc Nelson, environmental health manager with the county health department.

PCBs. "Houses planned near Bloomington site that leaks PCBs," is the headline to this AP story. Some quotes:
BLOOMINGTON, Ind. Developers plan to build homes and businesses adjacent to a former dump that is still leaking chemicals. Bennett's Dump sits on the northeast side of the planned North Park development on Bloomington's far-northwest side that will be built over the next 25 years. * * *

Much of the PCB-laced soil that polluted Bloomington's streams came from the electrical components that were made at a former Westinghouse plant. Viacom Corp., which acquired Westinghouse through its 1999 merger with CBS, is paying for the cleanup.

Alcamo and Fliss said it could take two years to plan and complete the remediation. Fliss said if the quarries are pumped out, the water in them first will be tested for PCBs and treated if necessary.

Monroe County planning director Bob Cowell said the only health implications for North Park are for common areas. He said there would have to be fences to keep people in North Park from being able to enter the Bennett's Dump area.

Vreba-Hoff Dairies. The Muncie Star-Press reported yesterday:
MUNCIE - Sixteen Indiana, Ohio, and Michigan dairy CAFOs (concentrated animal feeding operations) built by Vreba-Hoff Dairy Development have been ordered by the U.S. Environmental Protection Agency to correct numerous alleged violations of the Clean Water Act.

The potential runoff or discharge of silage leachate or juice - which can be a stronger water pollutant than raw human sewage - was a common problem at the farms.

Other alleged violations included damaged, weedy or eroded manure lagoons, and failure to address the potential for storm water to cause manure and silage leachate pollution.

The EPA is not seeking to fine any of the dairies, said spokesperson Phillipa Cannon in Chicago. "The purpose is more to get them into compliance," she said. The sixteen dairies - three in Indiana, three in Michigan, and 10 in Ohio - were inspected in November and December of 2003.

New Daniels administration. "Activists wonder where Daniels will lead state's environment" was the headline to this AP story yesterday in the Indinapolis Star. Some quotes:
Tim Maloney, executive director of the Hoosier Environmental Council, said many activists are hoping for change after what they saw as a lack of bold environmental initiatives under Democrats Evan Bayh, Frank O'Bannon and Joe Kernan. * * *

Maloney said the only real environmental progress during those years was an effort during Bayh's first term to boost recycling and solid waste reduction. IDEM's report found that by 2003, those efforts were diverting about 39 percent of solid waste from Indiana's landfills.

Activists like Maloney hope for bigger advances under Daniels, who has promised to retool the state's agencies.

"The environment affects everybody," he said. "This is about protecting human health and having a good quality of life, and those are not partisan ideas."

Much of the outcome may hinge on how Daniels approaches staffing at IDEM, the 18-year-old state agency with a $161 million budget and more than 900 employees. Critics have long complained that IDEM is understaffed, underfunded and doesn't do enough to protect the environment. * * *

Glenn Pratt worked as an environmental scientist with the Environmental Protection Agency's Chicago regional office before joining IDEM as assistant commissioner of the office of environmental response from 1988 through 1990 - the end of Republican Gov. Robert D. Orr's second term and the beginning of Bayh's first term.

Pratt says IDEM reached its peak under Orr.

After the agency was created in 1986, spun off from the State Department of Health by lawmakers, Pratt said Orr's focus was on "building a professional, strong agency."

"The standards have been lowered since then," he said.

Posted by Marcia Oddi on Tuesday, November 23, 2004
Posted to Environment

Monday, November 22, 2004

Law - Background on the Use of the Filibuster in the U.S. Senate

The NY Times had an article yesterday on the filibuster, "an extra-constitutional accident of Senate history that has become an institution." Most interesting to me was the section about history of the filibuster:

Sarah A. Binder, a political scientist at George Washington University and co-author of a book on the filibuster, said that both the House and Senate began work in 1789 with a measure called a "previous question motion" that required only a simple majority to cut off debate. The House has kept such a rule to the present day.

But the Senate dropped it in an 1806 housecleaning without fully understanding the implications, she said.

As early as 1841, a frustrated Senator Henry Clay of Kentucky threatened to try to change the debate rules when opponents tied up his banking bill with interminable talk. But the Senate finally adopted a formal means of ending a filibuster only in 1917, at the urging of President Woodrow Wilson.

Infuriated by the failure of Congress to act on war measures, Mr. Wilson fumed. "A little group of willful men," he declared, "representing no opinion but their own, have rendered the great government of the United States helpless and contemptible."

With that push, the Senate decided that a two-thirds vote could cut off a filibuster, borrowing the French parliamentary term "clture" for such a motion. In 1975, the Senate cut the required vote for cloture to three-fifths, or 60 senators, instead of 67.

At about the same time, the Senate created a two-track process that allows senators to block action on a piece of legislation merely by invoking the right to filibuster, without actually having to stand before the chamber and drone endlessly on. Meanwhile, the Senate can take up other business.

The measure, intended to promote efficiency, inadvertently encouraged filibusters by making them painless, said Julian Zelizer, a historian of Congress at Boston University. "The filibuster exploded, and became a normal tool of political combat," he said. In 1995, he noted, almost 44 percent of all major legislation considered by the Senate was delayed by a filibuster or the threat of one.

[More] Back in May of 2003, I wrote a 2-part entry on the filibuster in the U.S Senate (including comparisons to the Indiana Senate) and on the cloture rule -- a "curb on the practice" of unlimited debate. Access them here: Part I, and Part II. I can't guarantee that all the internal links in the two entries will still be good after nearly a year and one-half, but many may be.

Posted by Marcia Oddi on Monday, November 22, 2004
Posted to General Law Related

Indiana Courts - INTERVIEWS FOR FOR LAKE COUNTY SUPERIOR COURT JUDGESHIP SET

The Office of the Chief Justice of Indiana has issued this release:

INTERVIEWS FOR FOR LAKE COUNTY SUPERIOR COURT JUDGESHIP SET

Interviews for an upcoming vacancy for a judgeship on the Lake County Superior Court will be held on Friday, February 11, 2005.

Associate Supreme Court Justice Robert D. Rucker, a former Gary resident, will preside over the selection process as chairman of the Lake County Judicial Nominating Commission. Justice Rucker was named chairman of the Commission in the spring of 2000 by Indiana Chief Justice Randall T. Shepard.

The interviews for the position as Judge of the Lake Superior Court, Criminal Division 3, are open to the public and will be held in the courtroom room of the Lake County Board of Commissions in the Government Center in Crown Point, Ind. After conducting the interviews, the Lake County Judicial Nominating Commission will make its nominations and submit to the Governor of Indiana the names of three candidates.

Application will be available at all offices of the Clerk of the Lake Superior Court. Ten copies of each application must be received by 4 p.m. on Saturday, January 29, 2005 at the offices of the secretary of the Judicial Nominating Commission, Ronald Layer, at 5832 Hohman Avenue, Hammond, Ind. 46320.

Attorneys who reside in Lake County, are citizens of the United States and are admitted to the practice of law in the Courts of Indiana are eligible to apply.

Posted by Marcia Oddi on Monday, November 22, 2004
Posted to Indiana Courts

Indiana Decisions - 7 posted today by Court of Appeals

Donald J. DeSalle v. Barbara S. DeSalle Gentry (11/22/04 IndCtApp) [Family Law]
Riley, Judge

* * * Based on the foregoing, we find that the trial court properly divided the marital assets between DeSalle and Gentry, with the exception of the division of the toy show venues. Holding that the trial courts division of toy show venues effectively amounted to an injunction against DeSalles future income, we reverse the trial courts Order, solely with respect to the toy show venues. Affirmed, in part, and reversed, in part.
NAJAM, J., and KIRSCH, CJ., concur.
Philip M. Werner v. State of Indiana (11/22/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Philip M. Werner appeals from the trial courts interlocutory order denying his motion to dismiss. Specifically, he contends that the trial court erred in failing to find a violation of Indiana Rule of Criminal Procedure 4(C) where there were multiple delays between his arrest on August 30, 2000, and the original bench trial date set for January 3, 2002. Finding that Werner did not object to the trial date in a timely fashion and has therefore waived this argument, we affirm. * * *

Werner did not provide a written notice of surrender to Randolph County of his incarceration in Wayne County. The Rule 4(C) clock therefore tolled for the 142 days between his failure to appear in Randolph County on January 2, 2001, and his release from the Wayne County Jail on May 23, 2001. After taking into account the days that are chargeable to Werner due to his request for a continuance and his failure to provide a written notice of surrender, only 257 days had passed on November 2, 2001, when the trial court set Werners trial date. Werner was obligated to object to the trial date at that time, but he did not. He has therefore waived any Rule 4(C) argument. The judgment of the trial court is affirmed.
KIRSCH, C.J., concurs.

ROBB, J., dissents with opinion.
I respectfully dissent. I disagree with the majoritys conclusion that a defendant whose case is midstream in one county and who is subsequently arrested on unrelated charges in another county must provide formal written notice of his incarceration to the court and the State to avoid the tolling of the Rule 4(C) clock. Slip op. at 9. In this particular case, I would hold that written notice is not required and would hold that the oral notice provided by Werner was sufficient to keep the Rule 4(C) clock running.

As the majority acknowledges, there is no formal written notification requirement. I acknowledge that written notice is the easiest and best proof that notice has in fact been given, and I understand the difficulties that could be encountered if we held that oral notification was sufficient in all cases. Thus, if there is a dispute about whether notice has been given, I agree that notification in writing would be required. But in this case, there seems to be no dispute that the trial court received one or both of the telephone calls made on Werners behalf to inform the court of his incarceration in Wayne County. Under these circumstances, I would hold that Werner sufficiently notified the trial court of his incarceration and would not charge him with the 142 days in question. I would accordingly hold that Werners trial date was set outside the Rule 4(C) period, and reverse the trial courts denial of his motion for discharge.

General Motors Corp., et al v. Kirby Sheets, et al (11/22/04 IndCtApp) [Statutory Construction]
Baker, Judge
The plaintiffs in this case tried to make lemonade out of our Lemon Law. However, the judgment they received was a little too sweet.

Appellants-defendants General Motors Corp. and Stanley Chevrolet/Oldsmobile (collectively GM) appeal the trial courts judgment in favor of Kirby and Becky Sheets (the Sheetses) with regard to their cause of action against GM for breach of warranty. Specifically, GM argues that the trial court erred by: (1) not making the required usage deduction under Indiana Code section 24-5-13; (2) awarding refunds of monies that the Sheetses did not pay; (3) awarding pre-judgment interest that was not properly pled or supported and is not provided for in the Indiana Motor Vehicle Protection Act (the Lemon Law); and (4) awarding excessive attorneys fees to the Sheetses counsel. Finding that the judgment should have included the usage deduction, but should not have included refunds of monies the Sheetses did not pay, pre-judgment interest, or attorney fees incurred after September 26, 2002, the date of GMs second qualified settlement offer, we reverse and remand to the trial court with orders to recalculate the award of damages. * * *

In light of the above disposition, we find that Indiana Code section 24-5-13-11 requires that a usage deduction be subtracted from a refund and that the Sheetses were not entitled to a refund of monies that they did not pay for the vehicle. We also find that the Sheetses are not entitled to pre-judgment interest and that they are only entitled to attorney fees incurred before September 26, 2002. The judgment of the trial court is reversed and remanded for proceedings not inconsistent with this opinion.
KIRSCH, C.J., concurs in result.

ROBB, J., concurs with opinion.
ROBB, Judge, concurs with separate opinion .
I concur with the majority in this case, but in result only with respect to its holding regarding the trial courts error in awarding the Sheetses pre-judgment interest. I agree with the majority that because the Sheetses failed to respond to GMs sustained objection to the inclusion of testimony regarding pre-judgment interest, the Sheetses implied that they believed they were not entitled to pre-judgment interest. Therefore, they cannot now take issue with GMs contention that the trial court erred in awarding them pre-judgment interest. But I write separately to note that, had the Sheetses responded to GMs objection, they would have been entitled to pre-judgment interest because the damages were clearly ascertainable in accordance with fixed rules of evidence and accepted standards of valuation. For this reason, I concur in result only with respect to the majoritys conclusion that the trial court erred in awarding the Sheetses pre-judgment interest.

Troy S. Farris v. State of Indiana (11/22/04 IndCtApp) [Criminal Law & Procedure]
Robb, Judge
* * * We hold that the trial court did not abuse its discretion when it excluded Dr. Roger Terry from testifying. The trial court did abuse its discretion by excluding Floyd Meeks from testifying but that error was harmless. We also hold that the trial court did not abuse its discretion when it admitted into evidence the three photo arrays that were used to identify Farris as the offender. We therefore affirm Farris conviction. Affirmed.
KIRSCH, C.J., concurs.
BAKER, J., concurs with separate opinion.
The Paternity of P.E.M. v. Norman & Jeannie Merkler (11/22/04 IndCtApp) [Family Law]
Riley, Judge
[This is a case invloving grandparents' visitation rights.] * * * (4) the trial court properly found Mazza in contempt for violating the grandparental visitation order. Affirmed.
CRONE, J., and VAIDIK, J., concur.
Eric D. Battle v. State of Indiana (11/22/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Eric Battle appeals his conviction for Resisting Law Enforcement, a Class A misdemeanor. Specifically, Battle contends that his conviction must be set aside because the evidence was insufficient to prove that he knew the woman in civilian dress was a police officer. Finding no error, we affirm. * * *

Officer Baldini identified herself verbally as a police officer while her badge was displayed and ordered Battle to stop. Thus, she identified herself by both visible and audible means. Battle, who was only two or three feet away from Officer Baldini at the time, turned to look at her, turned back, and began to ride swiftly away. Under these circumstances, the jury could reasonably conclude that Battle saw and heard Officer Baldini. Thus, the evidence was sufficient to establish the necessary elements of fleeing from law enforcement.
The judgment of the trial court is affirmed.
KIRSCH, C.J., concurs.

ROBB, Judge, concurs with separate opinion.


I concur, but write separately to note that knowledge of a law enforcement officers status is not required by the resisting statute, but has been required by caselaw when the resistance occurs during an arrest. See Sayles v. State, 513 N.E.2d 183, 187 n.3 (Ind. Ct. App. 1987). The rule in Indiana is that a private citizen may not use force in resisting a peaceful arrest by an individual whom he knows, or has reason to know, is a police officer . . . . Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001) (emphasis added). As Battle was charged with fleeing and not with using force during an arrest, I believe Officer Baldinis status as a law enforcement officer was sufficient to sustain the conviction and Battle was not free to reasonably or unreasonably disbelieve her when she announced she was with the police. I thus concur in the majority opinion that sufficient evidence supports Battles conviction.

Antwan Bradshaw v. State of Indiana (11/22/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Antwan Bradshaw appeals his conviction for the Unlawful Possession of a Firearm by a Serious Violent Felon, a class B felony, claiming that the State failed to show beyond a reasonable doubt that he had a previous conviction for dealing in cocaine that served as the basis for the enhanced firearm charge. Bradshaw also contends that the evidence was insufficient to establish that he was in possession of the handgun that was seized from an automobile in which he was riding. Rejecting Bradshaws sufficiency claims, we affirm the judgment of the trial court. * * *

As set forth above, States exhibit 4 is a self-authenticating document demonstrating, among other things, that Bradshaw entered a plea of guilty to dealing in cocaine on March 12, 2003. Contrary to Bradshaws assertions, the fact that he was not sentenced for that offense until September 19, 2003, is irrelevant with regard to the instant offense. Had the legislature intended to exclude defendants who have been convicted ofbut not sentenced forcommitting a serious violent felony, it would have drafted the statute accordingly. That said, inasmuch as Indiana Code section 35-47-4-5 does not define serious violent felon as an individual who has been sentenced for committing a serious violent felony, Bradshaw cannot succeed upon this claim. * * *

The judgment of the trial court is affirmed.
KIRSCH, C.J., and ROBB, concur.

Posted by Marcia Oddi on Monday, November 22, 2004
Posted to Indiana Decisions

Indiana Decisions - 7th Circuit posts two today

Cronus Projects LLC v. Mortgage Electonic (ND Ill.)

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Mortgage Electronic
Registration Systems (MERS) filed this suit under the diversity
jurisdiction to collect $306,000 owed by James and
Laura Estrella on a note secured by a mortgage. The district
court ordered the property sold and, applying Illinois
law, appointed a Special Commissioner to conduct an
auction. MERS told the Commissioner to act as its agent,
opening at $245,000 and bidding increments of $1,000 up to
the amount of the debt, if necessary to best any competition.
The Commissioner did not follow those instructions, however,
and knocked down the property to Cronus Projects at
$252,000.

MERS persuaded the district judge not to confirm this
sale. * * * The judge ordered a second sale to be held.
Before that could occur, Cronus filed an appeal. Both
sides assured us in their jurisdictional statements that 28
U.S.C. �1291 authorizes an appeal. Yet how could the decision
be �final� when the judge has ordered a new sale? This
litigation is ongoing; sale of the property given as security
is a means to collect the debt, which is the underlying
claim. Only after a fresh sale will we know who gets the
property, at what price, and what deficiency judgment (if
any) will be entered against the Estrellas. Only then will
the litigation be over. * * *

Because we lack
appellate jurisdiction, we cannot review the merits of the
district court�s decision, but we urge the judge to look at
this again if the federal court has jurisdiction to resolve the
dispute at all. The appeal is dismissed for want of jurisdiction.

Siemens Energy v. Good, Margaret M. (SD Ind., Larry J. McKinney, Chief Judge)
Before CUDAHY, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. The facts of the underlying
bankruptcy action in this matter are complex, but only the
most basic facts are necessary for purposes of this appeal of
a deadline dispute. In resolution of Chapter 11 bankruptcy
proceedings filed by debtor Heartland Steel, Inc., the
bankruptcy court below issued an order (�confirmation
order�) confirming the liquidation plan (�plan�) of the debtor.
According to the terms of the plan, a liquidating agent� the
subsequently appointed Margaret M. Good�would be
responsible for among other things, filing objections to
claims made by creditors. Three of those claims were filed
by Siemens Energy & Automation, Inc., Bascon Inc., and
Voest-Alpine Industries, Inc.�all of whom had perfected
statutory mechanic's liens against the debtor's steel mill
facility. (Collectively, we will refer to the claimants as
"mechanic's lien claimants"). The liquidating agent filed
objections to all three of these claims. The sole issue presented
in this appeal is whether the liquidating agent�s
objections were timely filed. * * *

Because we conclude that Federal Bankruptcy Rule
9006(a) extended the Sunday deadline to Monday, we need
not determine whether Section 7.15 of the plan would have
done the same. We conclude that the liquidating agent
timely filed her objections to the mechanic's lien claimants'
claims. AFFIRMED

Posted by Marcia Oddi on Monday, November 22, 2004
Posted to Indiana Decisions

Law - Women judges making strides in Louisville area

The Louisville Courier Journal reports today that "Election sweep helps women claim majority of Jefferson judicial posts." Some quotes from the story:

"You've got two things going on in Louisville," said Larry O'Bryan, a local political consultant who has represented about 20 judicial candidates, both men and women. "Women are winning, and people with well-known names are winning, and that's a fact."

But some female judicial candidates question whether gender has played a part in election results. More important, they say, is the rising number of qualified female candidates spilling out of law schools and working as public defenders and prosecutors.

"There is a tremendous number of women in the pipeline, and that did not used to be the case," said Charles Geyh, a professor of law at Indiana University, who has studied the importance of diversity, and the increasing number of women, on the bench.

Several judicial experts and judges say it is too early to determine the impact of more female judges. But they say stereotypical predictions of women judges being more empathetic and lenient on criminals haven't been borne out.

Advocates for women and domestic violence victims praise the surge in female judges, saying it helps the courts better reflect the community.

"Having more inclusiveness on the bench leads to the opportunity for a greater understanding from the people making decisions about the lives of people and families," said Cathe Dykstra, director of the Economic Success Program for the Center for Women and Families.

The rise of women on the bench should be a comfort to the public, judges and judicial experts said. "Is justice blind if all the people rendering justice are white and male?" Geyh asked. * * *

Women's success in Jefferson judicial races, however, hasn't been reflected in other elected offices across Kentucky.

The state ranks 48th in the nation for its percentage of women in the state legislature, according to the Center for American Women in Politics. And in Kentucky's Supreme Court and Court of Appeals, women hold four of 20 spots

Still, women are making inroads in America's courts, building public confidence as more ascend to judicial leadership positions, some political experts and judges say.

Across the nation, 22 women or 44 percent serve as chief justices of state high courts, said Diane Yu, chief of staff at New York University and chairwoman of the American Bar Association commission on women.

Note: On the other hand, there are no women on the Indiana Supreme Court.

Posted by Marcia Oddi on Monday, November 22, 2004
Posted to General Law Related

Law - Business law stories today

The AP is reporting this morning: "Trump casino empire files for bankruptcy." A quote from the story on the Indianapolis Star site:

Trump Hotels & Casino Resorts Inc. and numerous related operations filed for protection from its creditors under Chapter 11 of the bankruptcy code on Sunday in U.S. Bankruptcy Court in Camden, N.J. The filings list $1.3 billion in debt.
"Liability entangles stadium fracases: Multiple levels of insurance common," is the headline to a story this morning in the Fort Wayne Journal Gazette. Some quotes:
But the complex system of liability insurance that covers the operations of an arena will likely complicate the aftermath of Fridays brawl and keep lawyers busy for years to come.

The minimum coverage an arena must purchase for sporting events is $1 million for bodily injury or property damage, said Lou Valentic, chief marketing officer for K&K Insurance Group, Inc., based in Fort Wayne. Often, the figures go much higher.

K&K provides insurance coverage for sports, leisure and entertainment events across the country. The company covers college football bowl games, which begin in a few weeks.

The business of liability insurance for a venue hosting a sporting event is complicated.

First, Valentic said, the venue must purchase general liability insurance to protect against claims of property damage or bodily injury. Then, the sponsor organization the group leasing the venue will purchase general liability insurance.

There are five areas of general liability insurance coverage, Valentic said: parking, concessions, security, first aid, and maintenance and housekeeping.

Before the event, the venue and the sponsor organization will draw up a contract that determines who is responsible for each area.

But, Valentic said, some or all of those five areas can be contracted out to another company.

Posted by Marcia Oddi on Monday, November 22, 2004
Posted to General Law Related

Weekend postings you may have missed

Among the postings this weekend you may have missed are:

Note: To return to this main ILB page from any specific entry, simply find and click the word "Main" near the top of the individual entry.

Posted by Marcia Oddi on Monday, November 22, 2004
Posted to Indiana Law

Sunday, November 21, 2004

Environment - U.S. states and Canadian provinces are developing rules for how and when the inland seas can be tapped for fresh water

A long AP story in the LA Times today reports that "U.S. states and Canadian provinces are developing rules for how and when the inland seas can be tapped for fresh water." According to the story:

Of particular concern is the western United States, with its surging population, demand for water and political clout.

"There are threats, and they promise to increase over time," said David Naftzger, executive director of the Council of Great Lakes Governors.

Now, the region's governments are debating how to protect the inland seas, tributaries and connecting channels that make up 20% of the world's fresh surface water.

Although vast enough to spread a 9 1/2 -foot-deep sheet across the continental United States, the lake system is heavily burdened.

Nearly 40 million thirsty people live in the region, and its $2-trillion economy features water-dependent industries such as auto manufacturing, shipping, tourism and agriculture. * * *

Three years after agreeing to regulate large-scale water withdrawals, the Council of Great Lakes Governors released a detailed plan in July.

A public comment period ended in October, and the region's eight U.S. states and two Canadian provinces plan to vote on a revised version in the spring.

Some environmentalists praise the plan for requiring that any new diversion of water outside the Great Lakes drainage basin meet tough conservation standards.

But critics say there's a fatal flaw: The plan concedes that such diversions could happen instead of simply prohibiting them.

Regional business groups are worried too because the plan would regulate major new uses of Great Lakes water within the region itself.

That could inhibit economic growth by creating more bureaucracy and leaving companies uncertain about future water availability, they say.

"If we want to grow and prosper, we can't lock up our water," said George Kuper, president of the Council of Great Lakes Industries, whose members include the likes of General Motors Corp. and Eastman Kodak Co. "We should remember that it's a recyclable resource, and focus on how to use it wisely and efficiently."

Defenders of the plan say it's unrealistic and probably unconstitutional for people in the region to treat the lakes as a bottomless well while demanding frugality of others.

"We should do better at living within our own means," said Emily Green, Great Lakes program director for the Sierra Club's Midwestern office in Madison, Wis.

Posted by Marcia Oddi on Sunday, November 21, 2004
Posted to Environment

Indiana Law - Student reprimanded for religious absences

"Student reprimanded for religious absences: School contends mandates require possible expulsion," reads the headline to this story today in the Munster Times. Some quotes:

Scheidt, a member of the United Church of God's Munster congregation, said she had contacted the school corporation well in advance of removing her son from school between Sept. 29 to Oct. 8 to attend the observance, and even presented a letter from the church explaining the holy day observation.

She said Superintendent Alice Neal had told her she would contact the school corporation's attorney to find out the corporation's policy regarding religious observance. "She never got back to me and was out of town when I called her back," Scheidt said. "I told her, 'Either way, I'm going.'"

Neal called the issue "a misunderstanding," adding that she told Scheidt the rules spelled out in the student handbook regarding excused absences. "The school corporation will accept one day off per semester for religious observance," Neal said. "We already did that for this particular family." Scheidt concurred that her son had already missed a day of school earlier in the year for the Feast of Trumpets.

Under Indiana law there is no ruling as to whether children are to be excused for religious purposes, Neal said. The Indiana Department of Education holds firmly that it is not a reason to excuse students under Indiana law.

"I'm not arguing whether it should or should not be," Neal said. "We have to make a decision under existing law." Students are allowed five days of excused absences per semester, Neal said. Excused absences include illness with a doctor's note, a death in the immediate family, quarantine or court appearance. "Occasionally there may be an emergency in a family," Neal said. "The principal may excuse a day to do that."

After more than five absences, students must sign a letter acknowledging they understand they could be expelled. Some states provide a list of approved absences that are religious-based, but Indiana does not, Neal said. "At some point somebody may take this to court and there may be a decision," Neal said. "That has happened in other states."

According to United Church of God's attorney Larry Darden, just such a case was won on appeal by a student against a school in Amarillo, Texas, in 1982. "The school allowed other children excessive time off for sports and other activities but not for religious reasons," Darden said. "Occasionally we have problems, but when we explain the court case, they're usually quite cooperative

[More] A story today in the LA Times reports that the Rev. Jerry "Falwell's School Joins Others in Teaching Law to Their Flocks: The legal program at the reverend's university represents the latest effort by the religious right to change American society." Some quotes:
Law schools with strong religious underpinnings are showing signs of growth around the country. Ave Maria School of Law, a Roman Catholic institution in Ann Arbor, Mich., opened four years ago, and University of St. Thomas, also Catholic, in St. Paul., Minn., graduated its first law class last spring. Both schools have received provisional ABA accreditation. * * *

There were more than 200 applicants for Liberty's inaugural class, Green said. This year the school expects more than twice that number of applications.

Perhaps the closest parallel to Liberty is Regent University's law school, founded in 1986 by the Rev. Pat Robertson, host of television's "The 700 Club." Based three hours east of here, the school which received its full ABA accreditation in 1996 has a close relationship with the American Center for Law and Justice, a Washington nonprofit law firm also founded by Robertson.

If Regent's graduates are any indication of Liberty's future, many more go into public-interest law than the national law school average of about 3% of a class. But even at Regent, they account for no more than 10% of the graduates, with the remainder opting for more traditional legal fields, said Jeffrey A. Brauch, the school's dean.

[Update 11/22/04] The NYT today has an Adam Liptak piece about "a number of new religiously oriented law schools." A quote:
The new religious law schools - Liberty, Regent and two Roman Catholic schools, Ave Maria School of Law in Ann Arbor, Mich., and the University of St. Thomas School of Law in Minneapolis - differ in many ways. But they share an opposition to what they see as the moral relativism of the standard law school education and the moral peril of much law practice.

Posted by Marcia Oddi on Sunday, November 21, 2004
Posted to Indiana Law

Indiana Law - Reports of the Government Efficiency Commission

There have been a number of stories in the press about the Government Efficiency Commission. In early October, for instance, Lesley Stedman Weidenbener of the Louisville Courier-Journal wrote:

[T]he 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.
That came from this 10/3/04 ILB entry. And on Nov. 12th, in this ILB entry, I wrote:
I've seen several stories now on reports of various subcommittees of the Indiana Government Efficiency Commission and can't wait to see the actual documents. When available, I will of course post links here.
I've been doing my best to locate the reports. I'm told printed copies are not available to the public, although there have been televised shots of individuals with what appeared to be printed reports. The reports now may be available on CDs from the Legislative Services Agency's (LSA's) public bill room; but when I called only one CD, of what was projected to be a set of at least two, was available, at a cost of $10.00 each, plus mailing.

Later, I was told that the report would be posted online, but that "the report consisted of several different document formats that was making it slow going getting it all on the web."

This weekend various portions of the report were "made available" online. I use the phrase "made available" advisedly, because it appears that little effort was expended by the Efficiency Commission to make these documents useable, or even to identify them adequately.

There is a possibility that something more in the way of presentation is planned. But in case it is not, or to fill the gap, here is some guidance and some cautions. But first, take note that what follows does not deal with the content of the reports, but simply with access to that content. (I have examined the content of several documents in the general government area, and my initial feeling is the quality is decidedly mixed.)

Here is the 10-page "Introduction to Government Efficiency Commission Report", followed by 38 pages of appendices. (All reports are in PDF format.) Some quotes:

The Indiana General Assembly created the Government Efficiency Commission [Appendix A for copy of Bill] in 2003 to study this fiscal imbalance. The Commission was to report and make recommendations to the Governor and to the General Assembly no later than December 31, 2004. This is that report.

The enabling legislation stipulated that the Commission’s work be focused in four subcommittee areas:

1. K-12 – headed by David Shane – represents approximately 34% of the FY 2004 appropriations.

2. Higher Education – headed by Tom Reilly – represents approximately 13% of FY 2004 appropriations.

3. Medicaid and Human Services – headed by Kevin Brinegar – represents approximately 18% of FY 2004 appropriations.

4. General Government – headed by Steve Baranyk – represents approximately 10% of FY 2004 appropriations.

Note: The remaining 25% of FY 2004 appropriations are in Property Tax Replacement, Teacher Pensions, and Capital Categories

The Act creating the Commission specifically charged it with making recommendations to the Governor and General Assembly on ways to improve the functions, efficiencies and reduce waste on other unnecessary cost associated with any state funded agency, department or program.

Looking at General Government first, here is the state's page on the Government Efficiency Commission Subcommittee on General Government. What you will find when you go there is a bewildering number of documents, with no identification. Scroll down that page until you get to the 10 documents under the heading "Reports." Pretend they are numbered 1 through 10 and use the following Guide that I have prepared:
  1. Executive Summary - General Government Subcommittee (56 pages)

  2. Indiana Bureau of Motor Vehicles Efficiency Task Team Report (10 pages)

  3. Indiana Department of Natural Resources Efficiency Task Team Report (46 pages) [Note that if you do not have a high-speed browser, you may have difficulties with this report because it is 37 MB (37,914 KB). For my own purposes, I was able to download it and then convert it to a 180 KB file by separating out a scanned appendix, which would have been a much more efficient way for the Efficiency Committee to post it. If you have problems viewing this or any of the Commission's files online, you might try downloading them to your own computer first, and then opening the files in Acrobat Reader. To download, use right-click on the link and then select "Save target as ...".]

  4. Indiana Department of Correction Efficiency Task Team Report (62 pages)

  5. Indiana Department of Environmental Management Efficiency Task Team Report (36 pages)

  6. Indiana Department of Transportation Efficiency Task Team Report (30 pages)

  7. Personnel Task Team Efficiency Task Team Report (28 pages)

  8. Indiana Department of Revenue Efficiency Task Team Report (28 pages) (18.4 MB, which easily could have been reduced to 1.8 MB document by flattening the graphics.)

  9. Information Technology Working Group Efficiency Task Team Report (77 pages)

  10. This is a 1,409 page document titled "Cost Containment Strategies for State Correctional Facilities: A Compilation of Resource Materials." It is a whooping 317 MB, as posted.
This completes the ILB Guide to one of the four areas of the Efficiency Commission's study, General Government.

[More] The Indianapolis Star has articles today in the Sunday Focus section on the Efficiency Commission's General Government and Medicaid reports, written by the reports' authors.

Posted by Marcia Oddi on Sunday, November 21, 2004
Posted to Indiana Law

Indiana Law - More on Change in Administrations in Indiana State Government

The Fort Wayne Journal Gazette has two stories today on the transfer of administration. Both are by Niki Kelly. This one, headlined "Daniels sketches out his inner circle," gves short bios of seven of Governor-elect Daniels' top transition advisors.

This one, titled "For Daniels, much to do, little time," includes a number of interesting details. Some quotes from one part of the story:

The larger issues are obvious, the first being the awesome job of filling what likely will be hundreds of positions at the top tier of state government. Daniels started that task last week when he asked the Kernan administration to seek the resignation of almost 150 staffers directly appointed by the governor or lieutenant governor. Kernan agreed, and most of those resignations will likely be effective Jan. 10.

But according to Keith Beesley, staff attorney for the Indiana Personnel Department, many more will likely be asked to leave. By state law, all jobs are classified as either merit or non-merit. Sixty percent of the states workforce of more than 35,000 employees fall under the merit distinction, meaning they cant be fired without cause.

The rest are often called non-merit workers, he said. They are usually political appointees whose futures in state government are suspect. But just because employees are non-merit doesnt automatically mean they will be dismissed. Beesley said several U.S. Supreme Court cases have clarified that the new governor must show a persons party affiliation is an appropriate requirement for effective performance of the job. That is why, for instance, highway crews filling potholes are safe.

[Evan Bayhs transition director and chief of staff Bill Moreau] remembers filling about 40 positions by the January 1989 inauguration and 200 by the end of the year. Beesley estimates that there are at least three times the number of agency heads in positions such as direct deputies or public information roles that likely will be replaced. That would raise the total to more than 350.

The reality when there is a party change is most everything is going to change, said Peter Wiley, who studies gubernatorial transitions for the National Governors Association. The holdover rate is usually quite small. Its just that new governors want to get their people in. He also warns that incoming governors should not let themselves be pushed by the media to make important appointments prematurely. Dont feel you have to get the whole rowboat full by inauguration day. You want to make sure these are the right people, he said.

The rush for those jobs is immense. Daniels has already received thousands of formal applications, not to mention all the informal contacts as well. Moreau said he remembers people coming to his home on weekends dropping off resumes, and chairmen of county political parties handing over lists of people they expected to receive jobs.

Posted by Marcia Oddi on Sunday, November 21, 2004
Posted to Indiana Law

Environment - Adviser seeks changes in sewage plant rules

"Adviser seeks changes in sewage plant rules" is the headline to this story today in the Louisville Courier-Journal. Some quotes:

A key state adviser on water-quality issues has recommended a series of sweeping changes in the way Indiana regulates small sewage-treatment plants.

The recommendations are being made by David M. Wagner, a member of the state's Water Pollution Control Board.

They are the result of three hearings he conducted this fall to evaluate a proposal by two Floyd County organizations the Greenville Concerned Citizens and Save Our Knobs that are concerned about sewage-plant failures.

Wagner said the citizens' groups made such strong presentations to the board about failing private treatment plants in Floyd County including some that serve subdivisions that the board decided to review the situation statewide.

The board learned that the problem "is not just in Floyd County," Wagner said.

At a meeting Tuesday, Wagner said he will recommend against the adoption of a rule proposed by the groups. It would require treated sewage to be discharged into streams in which there is always at least 10 times as much water as sewage.

That's impractical, Wagner said, because up to 75 percent of the state's sewage-treatment plants are on streams that are sometimes dry.

But he said his recommendations to the water board and to the Indiana Department of Environmental Management, which implements the board's rules should help solve the problems highlighted by the groups.

Among other things, the recommendations would better define the advanced technology required of plants that discharge sewage into small streams, require proof that developers have the funding available to maintain the plants and improve government oversight of such operations.

The complete document, titled: "Report and Recommendation(s) Prepared by David M. Wagner, Member, Water Pollution Control Board and Hearing Officer Appointed by the Board. November 8, 2004," may be accessed here. Click here to go directly to the recommendations.

Earlier Indiana Law Blog entries on this topic are available here (9/20/04, 2nd item) and here (9/29/04).

Posted by Marcia Oddi on Sunday, November 21, 2004
Posted to Environment

Saturday, November 20, 2004

Indiana Law - County Change of Administrations

Echoing the change of administrations at the state level, Maureen Hayden of the Evansville Courier-Press reported Thursday on the pending change-over in Vanderburgh County. The story, headlined "Republican letter to commissioners touches a nerve," begins:

The soon-to-be all-Republican Vanderburgh County Commissioners wants "maximum flexibility" when it takes office Jan. 1, and has asked the current Democratic-controlled commission to cooperate by not making any significant decisions on pay, benefits, appointments, contracts or ordinances.

But according to the Democrats' written response, the Republicans would be wise not to count on it. Democratic Commissioner Catherine Fanello, soon to finish her second and final term, said to do so would be to violate "the public's trust." * * *

Posted by Marcia Oddi on Saturday, November 20, 2004
Posted to Indiana Law

Indiana Law - More on Lawrence mayor seeks to bar law firm

Updating an entry from Aug. 5, 2004 quoting from an Indianapolis Star story of that date headlined "Lawrence mayor seeks to bar law firm: Cantwell asks judge to disqualify Ice Miller from city's battle to cut ties to water company," the Star reports today, in a story headlined "Ice Miller won't defend Lawrence Utilities LLC," that:

Lawrence -- Ice Miller filed notice on Friday that the law firm will no longer defend Lawrence Utilities LLC against Lawrence Mayor Deborah Cantwell's lawsuit to sever the city's ties to the private water company.

The law firm still backs the company, formed by several supporters of former Lawrence Mayor Thomas D. Schneider, and will continue to do other legal work for it, said Lou Gerig, president of Sease Gerig & Associates, a local public relations firm. But Lawrence Utilities officials came to believe too much was being made of Ice Miller's involvement in the litigation, said Gerig, a spokesman for Lawrence Utilities. * * *

Cantwell had recently asked Marion Superior Court Judge David Dreyer to remove Ice Miller, citing a potential ethical conflict. City officials have argued for months that Ice Miller should be disqualified because the firm's attorneys might have to testify at trial. Phillip L. Bayt, a managing partner for Ice Miller, wrote the initial contract with Lawrence Utilities at Schneider's direction.

From mid-2001 through the end of last year, when Schneider left office, the law firm represented both the city and the water company. Cantwell, a Democrat, cited an ethics rule prohibiting lawyers from switching sides and working against interests of former clients. Ice Miller's attorneys say Bayt and others at the firm acted as "scriveners," or clerks -- not attorneys -- when they drew up the city's initial contract with Lawrence Utilities.

[Update 11/21/04] More on issues surrounding the Lawrence water utility contract may be found today in this front page Indianapolis Star story, which includes links to a number of the documents relevant to the story.

Posted by Marcia Oddi on Saturday, November 20, 2004
Posted to Indiana Law

Indiana Law - More on IU LAW-Indianapolis Dean to become Vice-Chancellor of the University of the South Pacific

Updating this ILB entry from two days ago, the Indianapolis Star reports today that "IUPUI law dean accepts Fiji post: South Africa-born Anthony Tarr named vice chancellor at the U. of South Pacific." Some quotes:

In his new position, [Anthony A.] Tarr, who will earn $234,320 this year, will work with the 18,000-student university -- a position equivalent to the president of an American college.

He came to IUPUI in July 2002, after 23 years in academic positions in Australia and New Zealand. * * *

Tarr said he was contacted about the position and decided to accept because it presents a chance to contribute to an area of the world where he and his wife have had strong connections for at least 18 years.

The position appealed to Tarr, too, because it carries broader roles relating to economic development issues and public-private sector initiatives.

"I absolutely love this (Indianapolis) community," he said. "But this is just quite unique."

One of only two regional universities in the world, the University of South Pacific serves the Pacific Islands region through its 12 member countries, including Fiji, Nauru, Samoa and Cook Island.

Posted by Marcia Oddi on Saturday, November 20, 2004
Posted to Indiana Law

Indiana Law - more on Indiana's Flood Maps

An editorial in the Indianapolis Star today titled "Flood maps due for an update" includes these points:

Flood plain maps in Indianapolis haven't been revised since 1988. Recent budget cutbacks also have eliminated dozens of Hoosier USGS stream-monitoring stations provided raw data used in flood mapping.

Homeowners, neighborhoods and mortgage lenders often don't know until it is too late whether flood insurance should be obtained. Zoning officials don't know where to allow development.

Failure to have accurate, updated maps results in property losses, higher insurance premiums and increased payouts to flood victims.

In addition to updating maps, government officials should pay closer attention to where development is allowed and its cumulative impact on drainage. Proper mapping, zoning and insurance coverage is something that shouldn't be put off until a rainy day.

See this Nov. 15th ILB entry for background.

Posted by Marcia Oddi on Saturday, November 20, 2004
Posted to Indiana Law

Indiana Law - More on Change in Administrations in Indiana State Government

The Indianapolis Star has more this morning on the upcoming change in administrations, in a story headlined "Daniels' new team takes form: Chief of staff and his deputy are named." Some quotes:

Thursday, the Kernan administration told nearly 150 agency and department heads and other top employees to turn in their resignations, effective any time between now and Jan. 10, to pave the way for the new administration.

"People in appointed positions should expect that it is very likely that they will be replaced," Daniels said.

But, he added, "We're not going to be inflexible about this. Not all (resignations) will be accepted, certainly not immediately. Some may never be accepted."

Daniels, though, made it clear he is planning major changes in state government. He said he has assigned 32 "due diligence" teams to examine different areas. He wants each to report to him by Dec. 10 on "the conditions, the problems and the opportunities" they find.

Yesterday the Star provided a link to a valuable, but very hard-to-read, list of the 150 names (see yesterday's entry, below). The Indiana Law Blog has been able to scan and convert this list to a more useful document. In addition, here is the list sorted by name, and sorted by salary.

From today's story, it appears that the request for resignations comes from the current governor, not from the governor-elect. If anyone would care to send me a copy of the letter, I could post it.

Posted by Marcia Oddi on Saturday, November 20, 2004
Posted to Indiana Law

Friday, November 19, 2004

Indiana Law - Top Kernan staffers are asked to resign

The Indianapolis Star has a story this morning headlined "Top Kernan staffers are asked to resign." Some quotes:

Nearly 150 top members of the outgoing administration of Gov. Joe Kernan have been asked for their resignations as state government prepares for the new Republican team. * * *

Jonathan Swain, press secretary for Kernan, said the request for the letters of resignation -- including his own -- did not come as any surprise.

"We always have known we serve at the will of the governor."

In addition to the 146 people directly appointed by the governor and lieutenant governor who were asked to submit letters of resignation, there are many more people who do not hold merit positions and who thus can expect to be asked to resign at some point before or after Daniels takes office.

Swain said he did not know how many employees that included but said it could be several hundred of the 35,000 state employees. Most state employees, however, cannot be fired simply for political reasons.

Whitt said it is "fairly standard" for resignations to be submitted in any changeover from one administration to another.

"Mitch has said from the beginning that he's going to bring in a new crew," she said.

The story is accompanied by a sidebar titled "Some of those who were asked to resign," listing appointees of the current governor making more than $100,000 annually:
Indiana Public Finance Director Mark S. Moore -- $148,783.96
State Office Building Commission Executive Director Susan Williams -- $128,401
Hoosier Lottery Director John M. Ross -- $117,936
Indiana State Police Superintendent Melvin J. Carraway -- $117,650
Teachers Retirement Fund Director William Christopher -- $110,884
Indiana Gaming Commission Executive Director Glenn R. Lawrence -- $109,122
Chief of Staff Mary K. Downes -- $108,088
Secretary of Family and Social Services Administration Cheryl L. Sullivan -- $107,991
State Budget Director Marilyn F. Schultz -- $102,784
Indiana National Guard Adjutant Gen. Roy Martin Umbarger -- $102,024
Commissioner of the Department of Correction Evelyn Ridley-Turner -- $100,132
White River State Park Commission Executive Director Margaret Boehm -- $100,121
What I failed to notice, until a reader pointed it out, is that the Star also links to a 5-page pdf file, with this introduction:
The top department heads and others appointed by Gov. Joe Kernan and Lt. Gov. Kathy Davis have been asked to submit their resignations, effective anytime between now and Jan. 10, in preparation for the incoming administration of Republican Mitch Daniels. The names of Bruce C. Lemmon, Jeffrey J. Webber and Brett Marsh should not have been included on the list, the governor's office said. Those positions and their salaries are: ...
The reader notes that:
"Some on the list have a fixed term of office (e.g. IURC members IC 8-1-1-2(e)) , others (e.g., again, IURC members, IC 8-1-1-2(c)) may be removed by the governor 'for cause'."
I looked closely at the list and see that, rather than a list of "top Kernan staffers," it is more correctly characterized as a list of individuals directly appointed by the governor, including top Kernan staffers and others. For instance, all five members of the Indiana Utility Regulatory Commission are on the list. The governor does make these appointments, from a list of names submitted by a nominating committee (just as he makes many court appointments). But the IURC is required by law to be politically balanced and the appointments are for fixed terms, as I recall, with removal by the governor only "for cause." I also see other Republican names I recogize -- on the state parole board for instance -- presumably that law also requres bipartisan membership.

This does not mean, of course, that the new governor may not ask that all these individuals tender their resignations, some of which he may elect not to accept. The question is, what about refusals? There is a whole body of interesting law on this, which I may explore in future posts.

Finally, as noted in the Star story, "there are many more people who do not hold merit positions and who thus can expect to be asked to resign at some point before or after Daniels takes office." For instance, I'm told that there may be as many as 40 such non-merit positions at the Department of Environmental Management. These are in addition to the IDEM commissioner, who is directly appointed by the govenor and is on the pdf list.

Posted by Marcia Oddi on Friday, November 19, 2004
Posted to Indiana Law

Indiana Decisions - 7th Circuit posts five

Details may follow ...

ANR Pipeline Company v. Davis, Brian E. (WD Wis.)

USA v. Flowers, Katherine A (SD Ill.) Interesting case.

Cole, Oneta S. v. US Capital Inc (ND Ill.)

Luckie, Colette v. Ameritech Corp (ND Ill.)

Joshi, Kalpana S. v. Ashcroft, John (On Petitions for Review of Orders of
the Board of Immigration Appeals)

Posted by Marcia Oddi on Friday, November 19, 2004
Posted to Indiana Decisions

Indiana Decisions - Transfer list for week ending November 19, 2004

Here is the Indiana Supreme Court's transfer list for the week ending November 19, 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, November 19, 2004
Posted to Indiana Transfer Lists

Law - Mayor Daley loses 6-year fight to make gunmakers pay

"Daley loses 6-year fight to make gunmakers pay" is the headline to this story today in the Chicago Tribune. Some quotes:

The Illinois Supreme Court dismissed two novel lawsuits Thursday that had sought to hold the firearms industry responsible for the costs of gun violence in Chicago, ending a six-year legal battle that thrust Mayor Richard Daley into the national political debate over gun control.

The state's highest court rejected arguments by Daley and the families of murder victims that the firearms industry creates a "public nuisance" by saturating the city and its suburbs with cheap guns that quickly find their way into the hands of gang members. City attorneys said they would not appeal.

In its unanimous decision, the court ruled that regulation of the manufacture, distribution and sale of firearms should be left to the state legislature. "Any change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts," according to the justices.

In a strongly worded opinion concurring with the decision, several justices acknowledged that they were disturbed by evidence presented in the two cases that suggests the firearms industry "sought to increase their profits by pandering" to criminals. Nevertheless, the justices ruled that the industry was not causing a public nuisance under the law and cannot be held responsible for the actions of criminals.

The story goes on to report:
Of the 23 lawsuits filed since 1998 by states, municipalities and the NAACP against the gun industry, 20 have been dismissed, although two are on appeal, according to the National Shooting Sports Foundation. Three other suits are proceeding in courts, including one in Gary that is in the early stages of pretrial discovery.
Here is the Chicago Sun Times coverage.

The Gary Post Tribune reports:

To the cheers of firearm industry supporters, Illinois justices on Thursday ruled that gun makers are not responsible for the $430 million Chicago attorneys estimated the city spent on additional police and medical services caused by the unlawful use of handguns.

The high court also tossed a lawsuit by families of gunshot victims, in both cases stating that gun makers and dealers are not responsible for the crimes committed by people who legally purchase handguns.

The lawsuit was nearly identical to one filed by Gary in 1999, though state gun laws and public nuisance statutes differ. More importantly, after nearly six years of appeals, the Indiana Supreme Court in 2003 ruled that the city did have grounds to press the suit in Lake County courts.

It could take a year or more to set a date for the trial, and a final decision will take longer still, said attorney Jim Meyers, who is handling the gun lawsuit with the city.

Garys case is the only one of its kind in the state. Legislators in February passed a law protecting gun makers and dealers from lawsuits. Mayor Scott L. King lobbied legislators to let the city have its day in court. * * *

Courts have sided with gun manufacturers in cases filed by Cincinnati, Newark, and Boston. Several cases have been stalled in states where legislators passed laws that immunized gun makers from liability when their products were used in crimes.

Federal legislation still could keep Gary from going before a judge, said Brian J. Siebel, an attorney for the anti-gun Brady Center who has helped the city argue the case.

U.S. House of Representatives last year passed a bill that would immunize gun makers from lawsuits nationwide, but the Senate balked when an extension to the assault weapons ban was attached, Siebel said.

There is a definite risk that the Congress will renew this effort, Siebel said. And its society thats suffering, the people in Gary, the people in Chicago, who are dying from guns that have been sold into an illegal market.

Earlier Indiana Law Blog entries on the Gary handgun suit and related matters include:

  • A Dec. 23, 2003 entry on the Indiana Supreme Court decision in City of Gary v. Smith & Wesson Corp. (12/23/03 IndSCt)

  • A Feb. 12, 2004 entry titled "Bill targets suits against gun owners"
    about the 2004 bill, HB 1349, that sought to ban the Gary lawsuit. Note that the bill ultimately passed. However, as noted in today's Gary Post-Tribune story, the Gary suit reportedly was exempted. Access HEA 1349 here.

  • An April 17, 2004 entry on a similar suit in New York.

    Finally, here are links to the two cases decided yesterday by the Illinois Supreme Court:

  • Young v. Arms (11/18/04)

  • City of Chicago v. Beretta U.S.A. Corp. (11/18/04)

    Posted by Marcia Oddi on Friday, November 19, 2004
    Posted to General Law Related

    Thursday, November 18, 2004

    Indiana Courts - [Updated] Fetus-rights case heard in IU classroom

    Evansville's 12WFIE is reporting today that "Indiana Must Decide If A Fetus Is A Baby." Some quotes:

    Is an unborn fetus considered a child? An Indiana court will have to decide on the controversial issue.

    The Indiana Court of Appeals will hear the civil case of Brittany Horn Thursday. The case stems from a two-car accident in Evansville back in July 2001. Horn, who was six months pregnant, was injured, but her fetus was killed. She later filed suit against the other driver, Kristi Hendrickson.

    Horn said that Hendrickson should pay funeral and burial expenses, because the accident was her fault. The case will be heard in Bloomington at Indiana University. IU law students will be watching the hearing.

    Unfortunately, Thursday is today, so the argument presumably already has occurred. And because it took place in Bloomington, it is doubtful that it will be available for viewing online. Much more about the case, Brittany Horn et al vs. Kristi L. Hendrickson, et al, may be found in this earlier Indiana Law Blog entry from August 25th.

    [Updated 11/19/04] Maureen Hayden, the Evansville Star-Press reporter who wrote the story quoted in the August 25th ILB entry, has a follow-up story this morning, headlined "Students see how hard court case can be." Some quotes:

    The Indiana Court of Appeals on Thursday heard Horn v. Hendrickson, a case that began two years ago in Vanderburgh Superior Court. An Evansville woman filed a civil lawsuit after her fetus died in a car accident. The wrongful-death portion of the lawsuit was dismissed after the judge found the state's wrongful-death statute doesn't consider a fetus to be a person. Lawyers for the woman appealed that decision. * * *

    The case grew out of a traffic accident that occurred in July 2001 at the intersection of U.S. 41 and Riverside Drive. Evansville resident Brittany Horn, who was six months pregnant, was injured in the two-car accident. Horn survived, but her fetus, whom she had named Libby Ann, died. Horn held a funeral and burial for the fetus. Because there were questions about who caused the accident, Horn found herself involved in a legal dispute over whom would pay for the cost of the burial, the funeral and other expenses associated with the death.

    Horn hired Dan Barfield of the Gerling law firm to file a wrongful-death lawsuit against the other driver, now represented by [Max] Fiester and his colleague, Jim Johnson, at the Evansville law firm of Rudolph, Fine, Porter & Johnson.

    Both sides had to argue what the Indiana Legislature intended when it updated the state's wrongful-death statute in 1987, and how the Indiana Supreme Court interpreted that law two years ago, when it found that an Evansville couple could not sue on behalf of their 8- to 10-week-old fetus, killed in a car accident in which the pregnant wife suffered injuries. The Indiana Supreme Court said Indiana lawmakers intended the state's wrongful-death statute to apply only to children born alive.

    On Thursday, Barfield argued that the Indiana Supreme Court got it wrong and that the Horn case is significantly different because Horn's 6-month-old fetus was "viable," meaning it could have survived outside the womb, while the other couple's fetus could not.

    The Indiana Supreme Court ruling referenced is Bolin v. Wingert (3/11/02), discussed in the second half of this Oct. 9, 2003 Indiana Law Blog entry.

    Posted by Marcia Oddi on Thursday, November 18, 2004
    Posted to Indiana Courts

    Indiana Law - IU LAW-Indianapolis Dean to become Vice-Chancellor of the University of the South Pacific

    Joshua Claybourn has a scoop this afternoon in Sapere aude, a weblog written and managed by students at Indiana University School of Law in Indianapolis. His report begins:

    Pacific Magazine reports that law school dean Anthony A. Tarr has accepted a position with the University of the South Pacific (USP) as the school's next Vice-Chancellor. Tarr is currently executive dean and Professor of Law at Indiana University.

    Posted by Marcia Oddi on Thursday, November 18, 2004
    Posted to Indiana Law

    Environment/Land use - Stories today

    The Decatur Daily Democrat has an interesting opinion piece today by editor J. Swygart. First, he has something to say about Indiana's annexation laws:

    When Berne City Council earlier this month set the stage for the annexation of unincorporated "pockets" of land wholly within the current municipal limits, it was a little shocking to learn that such pockets existed in the first place.

    Plying my trade for 25+ years in Ohio before coming to The Democrat, similar occurrences never arose because ... well, because the state's statutory code prohibits it.

    Likewise, annexation rules in the Buckeye State - unlike those in Indiana - prohibit municipalities from initiating annexation proceedings. In our neighbor to the east, landowners must petition to have property annexed to a city or town, not the other way around.

    And while the concept of municipal "land grabs" is a mostly unappealing one, the municipal leaders in Berne should be applauded for their efforts to eliminate landlocked "islands" of unincorporated real estate within the city.

    Residents of Berne have been hit hard by recent surcharges and fees as the city attempts to pacify the Indiana Department of Environmental Management and eliminate sewer and waste water woes there. All residents and property owners can rightfully be expected to share in those costs - and ultimately in the benefits that the infrastructure improvements will generate.

    But on a larger note, allowing cities to initiate annexation proceedings is a slippery slope. Perhaps it's also time for the state to re-examine state statutes governing annexation procedures.

    Readers may recall another ILB entry, from Monday, titled "Critics question state annexation laws." Then this about IDEM:
    And speaking of IDEM, here's hoping that city and county officials of all political persuasions will hold Governor-elect Mitch Daniels' feet to the fire when the Republican victor assumes office in January.

    During a mid-August stopover in Berne, Daniels vowed to inject some "common sense" into IDEM mandates and "issue a whole new set of marching orders" to agency employees.

    "They're slow, often hostile to growth and hostile to agriculture. They don't seem to understand the burden of their mandates," Daniels said at the time of IDEM.

    And while changes cannot be expected overnight - Daniels admittedly will have his hands full trying to erase an $800 million state budget deficit - it's our hope that IDEM reform will indeed be high on the new governor's priority list.

    Note that an entry earlier today ("Rezoning farmland in St. Joseph County" - scroll down two) illustrates yet another agriculture issue.

    There are stories today about two of the three communities named "clean pioneers" by IDEM. The Muncie Star-Press reports: "A week after being named community of the year by the Indiana Chamber of Commerce, Muncie has been named an "environmental pioneer" by the Indiana Department of Environmental Management. As CLEAN pioneers, Muncie and the communities of Lawrence and Ogden Dunes will adopt plans to improve the environment and quality of life. They also must submit pollution prevention data to the U.S. Environmental Protection Agency identifying the benefits of environmental management systems." And a report in the Munster Times begins: "OGDEN DUNES | A town already known for its environmental awareness and activism is bumping it up a notch. Ogden Dunes is one of three Hoosier communities taking part in Indiana's new Comprehensive Local Environmental Area Network Community Challenge program sponsored by the Indiana Department of Environmental Management and the Indiana Department of Natural Resources. The other two communities are Lawrence and Muncie."

    The Louisville Courier Journal reports today, in a story headlined "Chamber, plants assail air rules: Businesses object to cost and curbs,"that:

    A representative of Greater Louisville Inc. and several Rubbertown chemical plants yesterday escalated their attacks on the city's proposed program to control toxic air pollution, arguing that it is too broad, too stringent and too costly. In comments before the Louisville Metro Air Pollution Control District Board, an official speaking for nine chemical plants warned that the proposed rules could force job cuts or plant closures. * * *

    Clarence Dykstra, an official with the DuPont Dow Elastomers in the Rubbertown area of western Louisville, read a statement from nine chemical plants warning that the proposed program "could severely limit a company's ability to develop new or improved products to respond quickly to the demands of the marketplace."

    Other plants represented in the joint statement were: Carbide Industries, Rohm and Haas Co., Arkema, Inc. (formerly Atofina), Borden Chemical, Inc., Zeon Chemicals, DuPont, Noveon and OxyVinyls.

    The statement warned that the proposed program could discourage investment, and added that "unnecessary regulatory costs could force some companies to downsize or to shut down."

    Local environmentalist Tim Duncan later objected to the threats of lost jobs or closures. "It's economic extortion to make us choose between people's lives and economic livelihoods," said Duncan, a board member of the environmental group Rubbertown Emergency Action. "We refuse to do that."

    Today via Businesswire.com, a press release headlined "City of Indianapolis and Veolia Water Partnership Receives National Recognition; Water Partnership Delivering Cost and Quality Benefits." Some quotes:
    INDIANAPOLIS--(BUSINESS WIRE)--Nov. 18, 2004--Indianapolis Mayor Bart Peterson and his staff had clear goals in mind when embarking on the development of the nation's largest water partnership in May 2002. Local control, rate stability and water-quality improvements were crucial to the city's future.

    More than two years later, the city's strategy has been recognized by the National Council for Public-Private Partnerships (NCPPP), which, last night, awarded Indianapolis and private-sector partner Veolia Water Indianapolis, LLC (Veolia Water) with its Public-Private Partnership Award in the service category.

    Under a 20-year, $1.5 billion contract, Veolia Water manages all operations, maintenance and customer service facets of the city's waterworks system, including a variety of capital improvement projects. The partnership operates and is known to area consumers as Indianapolis Water.

    "The City of Indianapolis and Veolia Water have and continue to work closely together in a win-win partnership to realize economic and environmental benefits to our entire community, including a five-year rate freeze for our customers," said Indianapolis Mayor Bart Peterson. "We built this partnership with the interests of the citizens in mind and are pleased with the progress we've made in our first two years."

    Performance-driven contract. Unique to the Indianapolis partnership is a link between performance and compensation that includes 40 incentive criteria relating to water quality, customer service, operations and management, and community involvement.

    "Our contract with the city calls for a higher level of service to the customer. If we don't perform, we don't get paid for that portion of our contract," said Tim Hewitt, president and operations manager for Veolia Water Indianapolis, LLC. "The partnership really is setting a new standard in water and wastewater services. We have more challenges to face but are very satisfied with the diligence our employees have demonstrated to date." * * *

    Medical Waste. The Gary Post-Tribune today reports:
    GARY City officials and church leaders intend to boost attendance at tonights meeting of the Lake County Solid Waste Management District, in hopes that a show of outrage will encourage the county to press on with a lawsuit that could block a pair of medical-waste processing plants. * * *

    City Council President Carolyn Rogers said the county panels actions are likely the last chance to keep Midwest Medical Waste from adding on to a waste-transfer station near the Indiana Toll Road and Interstate 65 in her 4th District.

    Rogers has joined forces with a coalition of Gary ministers who claim adding machinery to sanitize the waste at the site, which would be the first of its kind in the state, will bring medical trash from across the Midwest into a neighborhood of poor minority residents.

    A second company, Abrade Technologies, re-ceived a special-use permit to open a similar plant in East Chicago and has applied for operating permits from the state, she said.

    Theres one in Gary and one proposed in East Chicago, Rogers said. I think it opens the door for future companies to come here and operate those kinds of facilities.

    Officials from both companies say the facilities do not increase pollution and that they will not handle body parts or toxic chemicals. The facilities would use steam to sterilize drums of medical waste, which includes everything from hypodermic needles to paper records exposed to contamination, which then can be dumped in an ordinary landfill.

    Posted by Marcia Oddi on Thursday, November 18, 2004
    Posted to Environment

    Indiana Decisions - Four from the Court of Appeals

    Leonard Proffit v. State of Indiana (11/18/04 IndCtApp) [Criminal Law & Procedure]
    Sullivan, Judge

    Following a jury trial, Appellant, Leonard Proffit, was convicted of one count of Voluntary Manslaughter, a Class A felony, and one count of Robbery as a Class B felony. Upon appeal, Proffit presents three issues for our review, which we renumber and restate as the following two: (1) whether the trial court improperly denied Proffits motion for a directed verdict upon the robbery charge, and (2) whether the trial court erred in instructing the jury. We affirm. * * *
    NAJAM, J., and BARNES, J., concur.
    Larry D. Best v. State of Indiana (11/18/04 IndCtApp) [Criminal Law & Procedure]
    [Interlocutory appeal]
    Crone, Judge
    Appellant-defendant Larry D. Best, Jr. appeals the trial courts denial of his motion to suppress. We reverse. * * *

    Jennings Countys decision not to take Best into custody, or to dismiss the warrant against him, subjected Best to deprivation of his liberty on four occasions. Enough is enough. We conclude that Best was served with the Jennings County warrant when he was first detained pursuant to it. At that time, the Jennings County warrant was satisfied and therefore lost its validity as a proper basis for future arrests. As Judge Staton explained in his dissent in Buck v. P. J. T., 182 Ind. App. 71, 75, 394 N.E.2d 935, 938 (1979), [w]hen the warrant lacks legal purpose, its existence serves only as an impermissible barrier to due process. We are not holding that every seizure, based on an arrest prompted by a computer mistake, warrants suppression of evidence, but the facts here clearly constitute an egregious violation of due process. Consequently, we hold that the trial court erred in refusing to grant Bests motion to suppress. See Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000) (noting that an unlawful arrest cannot be the foundation of a lawful search and that evidence which is the product of an illegal arrest is inadmissible). Reversed.
    RILEY, J., and VAIDIK, J., concur.

    Stephen Seketa v. State of Indiana (11/18/04 IndCtApp) [Criminal Law & Procedure]
    Kirsch, Chief Judge
    * * * While there is evidence that Seketa intended to confront Dixie about his lie, the evidence is insufficient to find the inmates agreed to commit an aggravated battery. While an agreement to humiliate Dixie or even to rough him up a little could be inferred, there is insufficient evidence to prove that Seketa conspired to commit a felony battery on Dixie. [cite omitted] Finding that the State presented insufficient evidence of conspiracy to commit aggravated battery, we reverse Seketas conviction on that count. Because we note that the trial court ordered Seketas sentences to run concurrently, we need not remand the case to address sentencing issues. Affirmed in part and reversed in part.
    BAKER, J., and ROBB, J., concur.
    Kristen Lynn Pryor v. David Eric Bostwick (10/26/04 IndCtApp) [Family Law]
    [NFP, ordered published 11/16/04]
    Najam, Judge
    Kristin Lynn Pryor (Mother) appeals from two of the trial courts orders finding her in contempt of court and calculating David Eric Bostwicks (Father) child support obligation with respect to their child, A.B. She presents the following issues for our review:
    1. Whether the trial court erred when it found Mother in indirect contempt of court for failing to comply with a visitation order.
    2. Whether the trial court abused its discretion when it ordered Father to pay $30 per week in child support.
    3. Whether the trial court erred when it found Mother in direct contempt of court.
    We reverse and remand with instructions. * * *

    Mother first contends that the trial court erred when it found her in indirect contempt for refusing to allow Fathers visitation with A.B. prior to January 12, 2004. Mother maintains that because paternity had not been established prior to January 12, there could not have been any visitation order in effect. We must agree. * * *

    Mother next contends that the trial court abused its discretion when it ordered Father to pay $30 per week in child support. Specifically, Mother maintains that the trial court failed to base its order on the Child Support Guidelines, as it was required to do. Again, we must agree. * * *

    Finally, Mother contends that the trial court erred when it found her in direct contempt for alleged negative remarks she made about the trial court and for her alleged noncompliance with some of the courts orders. Specifically, Mother maintains that her conduct did not constitute direct contempt. We agree. * * *

    In sum, the trial court erred when it found Mother in indirect contempt for allegedly violating a visitation order before the court had entered an order determining paternity. The trial court abused its discretion when it ordered Father to pay $30 per week in child support without making findings to support that order or completing a child support worksheet. And the trial court erred when it found Mother in direct contempt for her conduct which occurred outside of the courtroom and was not within the trial judges personal knowledge.
    Reversed and remanded with instructions.
    SULLIVAN, J., and BARNES, J., concur.

    Posted by Marcia Oddi on Thursday, November 18, 2004
    Posted to Indiana Decisions

    Indiana Law - Rezoning farmland in St. Joseph County

    "Panel frowns on farmland rezoning: Neighbors relieved; request now goes before County Council" is the headline to this story today in the South Bend Tribune. Some quotes:

    Lori Kimmel has lived in New Carlisle her entire life. She grew up on the privacy of a 50-year-old family-owned farm on the Chicago Trail. And the family enjoys the solitude the land offers.

    So when Dennis A. Hancz proposed to rezone 81 acres of the land from agricultural to residential to allow for a single-family residential subdivision, Kimmel's family, along with many area residents, became upset.

    "I would like to see the farmland in our area preserved as farmland," Kimmel said. Kimmel took it upon herself to let area residents know about the proposal and started a petition to oppose it.

    Nancy VanWanzeele was one of the residents opposed to the plan. VanWanzeele and her family have lived on a dairy and grain farm in the area since 1956, and for many reasons they are worried about a subdivision going up in the area.

    "We're really concerned about what would happen with our future income," VanWanzeele said. "And if people think they don't like the smell of our dairy cows, we could be in big trouble." * * *

    The St. Joseph County Area Plan Commission apparently had some of the same concerns when it gave the proposal an unfavorable recommendation at Tuesday's public hearing. * * *

    The proposal will be brought before the St. Joseph County Council at its 7 p.m. Dec. 7 meeting at the County- City Building in South Bend.

    Farmland preservation was the title of an April 8, 2004 Indiana Law Blog entry that references a number of sources.

    Posted by Marcia Oddi on Thursday, November 18, 2004
    Posted to Indiana Law

    Indiana Decisions - 7th Circuit posts one

    Bieghler, Marvin v. McBride, Daniel R. (SD Ind., Larry J. McKinney, Chief Judge)

    Before KANNE, ROVNER, and EVANS, Circuit Judges.
    EVANS, Circuit Judge. * * *
    For all these reasons, the judgment of the district court
    denying Bieghlers petition for a writ of habeas corpus
    is AFFIRMED.

    Posted by Marcia Oddi on Thursday, November 18, 2004
    Posted to Indiana Decisions

    Wednesday, November 17, 2004

    Indiana Decisions - Hess v. Indiana Tested Limits of Free Speech During Wartime

    A newswire report today on the Boston Globe website reports on an important decision from the 70s, Hess v. Indiana. Some quotes from the story:

    BLOOMINGTON, Ind., Nov. 17 (AScribe Newswire) -- It would turn out to be an innocent use of the f-word, defying conventional wisdom that suggests free speech is one of wartime's great casualties.

    In May 1970, police arrested Gregory Hess during a student anti-war protest on the campus of Indiana University Bloomington. A sheriff overheard Hess utter an obscenity-laced statement exhorting the crowd of about 150 demonstrators to retake a street that police had just cleared. Police charged Hess with disorderly conduct.

    Hess was convicted in city court, and the Indiana Supreme Court upheld the lower court's ruling that Hess' words were intended to incite and likely to produce further lawless action on the part of the crowd. But in 1973, the U.S. Supreme Court overturned Hess' conviction on the grounds that his speech was protected because it was not obscene and did not amount to ''fighting words.'' The U.S. Supreme Court also ruled that Hess' speech, taken in context, was unlikely to produce any ''imminent disorder.'' (It was later determined that Hess actually said the crowd could take the street ''later'' or ''again.'')

    Hess v. Indiana ''remains perhaps the most important modern affirmation of the famous 'clear and present danger test,''' said Patrick Baude, the Ralph F. Fuchs Professor of Law and Public Service at the Indiana University School of Law-Bloomington and the counsel of record in the U.S. Supreme Court trial.

    Hess v. Indiana ''remains perhaps the most important modern affirmation of the famous 'clear and present danger test,''' said Patrick Baude, the Ralph F. Fuchs Professor of Law and Public Service at the Indiana University School of Law-Bloomington and the counsel of record in the U.S. Supreme Court trial.

    Read more here.

    This Friday, November 19th, the 31st anniversary of the decision, the IU Law School in Bloomington will host a panel discussion on the case, including the key players:

    Friday, Nov. 19, marks the 31st anniversary of the Supreme Court decision in Hess v. Indiana, a 1973 First Amendment case concerning an incitement to illegal action during a war protest on the IU Bloomington campus. The Law School will host a panel discussion on Hess v. Indiana from 3 p.m to 5 p.m. in the Moot Court Room. Panelists include Gregory Hess; Professors Tom Schornhorst and Pat Baude, who represented Hess; Hess prosecutors Judge Randy Bridges and Tom Berry; and Hess City Court judge Dave McCrea. This event is free and open to the public. The panel discussion will be followed by a reception in the Faculty Lounge.

    Posted by Marcia Oddi on Wednesday, November 17, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Six posted today by Court of Appeals

    Ann & Jeff Willis v. Christopher Westerfield (11/17/04 IndCtApp) [Torts]
    [Opinion on Rehearing]
    Vaidik, Judge

    On rehearing, the Willises raise three issues, one of which we find dispositive; namely, whether the trial court erred by instructing the jury on the affirmative defense of failure to mitigate damages. Initially, we found no error in the trial courts decision to instruct the jury on the failure to mitigate defense. See Willis v. Westerfield, 803 N.E.2d 1147, 1155 (Ind. Ct. App. 2004). Upon further reflection, we now reach the opposite conclusion. * * *

    As to all other matters discussed in our original opinion and not herein addressed, we stand by our initial resolution of those issues.
    Reversed and remanded for a new trial on the issue of damages.
    SHARPNACK, J., and BAILEY, J., concur.

    Tasha S. Maggert v. Frederick Call (11/17/04 IndCtApp) [Criminal Law & Procedure]
    Sharpnack, Judge
    Tasha Maggert appeals the trial courts denial of his motion for summary judgment and the trial courts grant of a motion for summary judgment filed by Frederick Call, warden of the Elkhart County Jail. Maggert raises two issues, which we consolidate and restate as whether Maggerts right of access to the courts was violated when the jails law library was temporarily unavailable for his use in prosecuting a civil action. We affirm.

    The relevant facts designated by the parties follow. From May 11, 2002 to November 8, 2002, Maggert was incarcerated at the Elkhart County Jail where Call was the jail warden. The Elkhart County Jails law library was unavailable from July 27, 2002 through October 22, 2002 due to flooding within the facility and subsequent repair work. * * *

    The issue is whether Maggerts right of access to the courts was violated when the law library was temporarily unavailable for his use in prosecuting his civil action. * * *

    Maggert appears to argue that he had a constitutional right of access to the courts under the United States Constitution. See footnote The United States Supreme Court has held that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498 (1977) * * * Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.

    Maggerts civil action was an action for theft of his property, not a challenge to his conviction or a civil rights action under 42 U.S.C. 1983. Consequently, Maggert did not have a federal constitutional right of access to the law library or adequate assistance from persons trained in the law to prosecute his civil action. * * *

    For the foregoing reasons, we affirm the trial courts denial of Maggerts motion for summary judgment and the trial courts grant of Calls motion for summary judgment. Affirmed.
    BAILEY, J. and MAY, J. concur

    Sam F. & Amber L. Oliverio v. Pam Chumley (11/17/04 IndCtApp) [TaxSale]
    Najam, Judge
    Sam and Amber Oliverio appeal the trial courts denial of their appeal from the courts order for issuance of two tax deeds to Pam Chumley. The Oliverios present a single issue for our review, namely, whether Chumley complied with the tax sale notice requirements under [IC] 6-1.1-25-4.5(e). We affirm. * * *

    Here, Chumley followed the statute and sent the proper notices to the Oliverios by certified mail to the address the Pulaski County Auditor had on file. Our reading of the plain language of the statute indicates that that was the extent of Chumleys obligation. See id. (notice to property owner sufficient if mailed by certified mail to address maintained by county auditor). The Oliverios, however, read the statute to mean that Chumley had to use ordinary means to locate their correct address. But that contention rests on a misreading of the statute and a failure to acknowledge a significant amendment to the statute that occurred in 2001. * * *

    In sum, the trial court did not err when it denied the Oliverios appeal from the issuance of the tax deeds to Chumley. Affirmed.
    SULLIVAN, J., and BARNES, J., concur.

    Michael J. Sharp v. State of Indiana (11/17/04 IndCtApp) [Criminal Law & Procedure]
    Sharpnack, Judge
    Michael J. Sharp appeals the modification of his probation following the trial courts finding that he violated conditions of his probation. Sharp raises one issue, which we restate as whether the trial court exceeded its statutory authority when it modified the term and the conditions of Sharps probation. We reverse and remand. * * *

    Sharp was released from the Indiana Department of Correction on December 17, 2001. On July 2, 2003, the State filed a motion to revoke Sharps probation, and after a hearing, the trial court found that Sharp had violated several conditions of his probation. The trial court modified Sharps probation by extending his period of probation to six years and requiring Sharp to serve eighteen months in the Indiana Department of Correction as a term of probation.

    The issue is whether the trial court exceeded its statutory authority when it modified the term and the conditions of Sharps probation. * * *

    Assuming that the eighteen-month term of imprisonment exceeded the remaining amount of probation, the trial court erred by imposing the eighteen-month term of imprisonment as a condition of Sharps probation because that term exceeded the remaining amount of Sharps probation.

    While we recognize that the trial court was attempting to fashion a modification of Sharps probation in an effort to punish Sharp for his probation violations and to protect society while still allowing Sharp to continue with his treatment and counseling, we are constrained to apply the unambiguous language of the statutes. Consequently, we reverse the trial courts modification of the term and conditions of Sharps probation and remand to the trial court for resentencing on Sharps probation violations. See, e.g., Carroll v. State, 740 N.E.2d 1225, 1234 (Ind. Ct. App. 2000) (holding that the trial court exceeded its statutory authority by requiring a non-immunized clean-up statement as a condition of probation), trans. denied.

    For the foregoing reasons, we reverse the trial courts modification of the term and conditions of Sharps probation and remand for resentencing.
    Reversed and remanded.
    BAILEY, J. and MAY, J. concur

    Michael R. Wiggins v. State of Indiana (11/17/04 IndCtApp) [Criminal Law & Procedure]
    Mathias, Judge
    Michael Wiggins (Wiggins) was convicted of Class C felony operating while intoxicated causing death and Class D felony operating while intoxicated causing serious bodily injury See footnote in Kosciusko Superior Court. Wiggins appeals and raises the following dispositive issue, which we restate as: Whether the trial court abused its discretion when it admitted the results of Wiggins urine toxicology test into evidence. Concluding that the investigating police officer did not have probable cause to believe that Wiggins was intoxicated when he ordered the test, we reverse. * * *

    Upon review of Deputy Tylers testimony, it is clear that Wiggins had some difficulty answering Tylers questions following the accident while he was being treated at the scene and in the emergency room by medical personnel. But, without some objectively observed clear indication of intoxication, such as dilated pupils, telltale odor or failed field sobriety test(s), under Indianas Implied Consent Law, Wiggins difficulty in answering Deputy Tylers questions under these circumstances is not significant enough, by itself, to provide the probable cause required for the blood and urine tests ordered by Tyler under Duncan and Schmerber. Deputy Tyler therefore lacked the probable cause necessary to compel Wiggins to submit to a blood draw and urine test, and we conclude that the urine toxicology test results should not have been admitted into evidence at trial.

    Finally, we observe that pursuant to Indiana Code section 9-30-6-6(a), a physician or other person who has obtained the results of a chemical test on a persons blood or urine is required to deliver the results or the sample itself to a law enforcement officer who requests them as part of a criminal investigation. * * *

    In this case, in its findings of fact and conclusions of law, the trial court denied Wiggins motion to suppress in regard to the test results obtained by medical personnel where the tests were performed for purposes of diagnosis and treatment. Importantly, however, there is no evidence in the record that any tests results revealing the presence of marijuana metabolites in Wiggins body were performed for the purpose of either diagnosis or treatment. The trial courts finding is therefore clearly erroneous. See Hannoy, 789 N.E.2d at 981 (Findings of fact are clearly erroneous only when the record lacks any evidence to support them.). Furthermore, the State only argues that Deputy Tyler had probable cause to believe that Wiggins was intoxicated and does not contend that Wiggins urine toxicology test results were obtained during the normal course of medical treatment. * * *

    In this case, the urine toxicology test was the only evidence admitted which established that Wiggins operated a motor vehicle with a controlled substance or its metabolite in his body causing the death of Terry Wilson and serious bodily injury to D.W. Accordingly, we cannot conclude that the erroneous admission of the urine toxicology test results was harmless and we must therefore reverse Wiggins convictions. Reversed.
    BARNES, J., and CRONE, J., concur.

    LTL Truck Services, LLC v. Safeguard, Inc. (11/17/04 IndCtApp) [Civil Procedure]
    Najam, Judge
    LTL Truck Service, LLC (LTL) appeals the trial courts dismissal of one plenary action and eight small claims against Safeguard, Inc. d/b/a Maggart & Sons, Inc. and Maggart & Sons, Inc. d/b/a/ M&S Express (together Safeguard). LTL presents the following issues for our review:
    1. Whether the trial court erred when it granted Safeguards motion for involuntary dismissal of LTLs eight small claims actions.
    2. Whether the trial court erred when it granted Safeguards motion to dismiss LTLs plenary action under Indiana Trial Rule 12(B)(8). See footnote

    We affirm. * * *
    SULLIVAN, J., and BARNES, J., concur

    Posted by Marcia Oddi on Wednesday, November 17, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts two

    Beach, Randall A. v. Commonwealth Edison (Petition for Rehearing and Rehearing En Banc)

    Before POSNER, EASTERBROOK, RIPPLE, MANION, KANNE,
    ROVNER, WOOD, EVANS, WILLIAMS, and SYKES, Circuit
    Judges
    .
    Plaintiff-appellee filed a petition for rehearing and
    rehearing en banc on September 7, 2004. A majority of the
    judges on the panel voted to deny rehearing. A judge called
    for a vote on the petition for rehearing en banc, but a
    majority of the active judges did not favor rehearing en
    banc.* Accordingly, the petition is denied.

    RIPPLE, Circuit Judge, with whom EVANS, Circuit Judge,
    joins, dissenting from the denial of rehearing en banc. This
    decision merits the attention of the full court in an en banc
    proceeding. Under the panels holding an employer-administrator
    speaks as an ERISA fiduciary only when it speaks
    about new benefits created by an amendment to an established
    benefit plan under which the employer and employee
    have a preexisting fiduciary relationship, as opposed to
    when that employer-administrator speaks about benefits in
    a new plan. Such a narrow view cannot exist comfortably
    with the rationale of Varity Corporation v. Howe, 516 U.S.
    489 (1996). Moreover, as noted later in this opinion, there
    is a division among the circuits that frustrates the evenhanded
    enforcement of the statute and, consequently, the
    intent of the Congress in ensuring protection for employees
    benefits plans. * * *

    This case presents an issue of exceptional importance. As
    the United States workforce ages and as companies continue
    to downsize through methods such as early retirement
    and voluntary separation programs, the role of ERISA has
    become more important. Litigation about the existence and
    scope of employer fiduciary duties under ERISA inevitably
    will continue to grow as well. Congress has a right to expect
    that the judiciary will take the necessary steps to ensure
    that the Congressional will is not frustrated by judicial
    interpretations that frustrate the purpose of the statute. We
    need to hear this matter en banc and engage in thoughtful
    collegial deliberation.
    _____
    *Chief Judge Flaum did not participate in the consideration of
    the petition for rehearing en banc.

    Perruquet, James v. Briley, Kenneth R. (CD Ill.)
    Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Petitioner James Perruquet
    stabbed Christopher Hudson to death during a struggle in
    1995, and an Illinois jury later found Perruquet guilty of
    first-degree murder. Perruquet now seeks a writ of habeas
    corpus, asserting in relevant part that the state trial court
    deprived him of due process when it refused to admit evidence
    and instruct the jury on self-defense. The district court
    concluded that Perruquet had not adequately made out a
    due process claim and that, even if he had, the claim was
    without merit. We conclude that Perruquet procedurally
    defaulted the due process claim by not fairly presenting it to
    the Illinois courts. * * *

    Because Perruquet did not fairly present his due process
    claim to the Illinois courts and thereby procedurally defaulted
    that claim, and because Perruquet has not established
    grounds for overlooking the default, the federal courts
    may not reach the merits of this claim. We therefore AFFIRM
    the district courts decision to deny Perruquet relief on this
    claim. We thank Perruquets appointed appellate attorneys
    for their vigorous advocacy on his behalf.

    Posted by Marcia Oddi on Wednesday, November 17, 2004
    Posted to Indiana Decisions

    Environment - Proposed Mallard Lake Landfill in the news again

    "Judge reinstates landfill permit" is the headline to this story today in the Muncie Star-Press. Some quotes:

    ANDERSON - A state environmental law judge has ruled in favor of J.M. Corp. in its quarter-century struggle to build the proposed Mallard Lake Landfill across the road from Killbuck Elementary School. But opponents once again will appeal. * * *

    Killbuck Concerned Citizens Association, an organization created in April 1979 to stop the landfill * * * has been battling JM for 25 years in administrative, trial and appeals courts; zoning hearings; the state Legislature, and other venues. * * *

    In an interview Tuesday, Ralph Reed Jr. of JM said: "They can appeal, but it isn't going to do any good. What this judge did was make IDEM (Indiana Department of Environmental Management) follow the law. We've been in court 14 or 15 times, and they've never won a suit in their lives."

    The latest ruling, as Sen. Tim Lanane, D-Anderson, said at Monday night's meeting, reads like the last 10 pages of a book, considering all of the legal proceedings that have occurred before it.

    In the ruling, Judge Catherine Gibbs found that IDEM had issued an operating permit to JM in 1998. But it was never finalized because of disagreements between IDEM and JM over a prior judge's ruling.

    In early 2003, IDEM informed JM that the permit would expire unless a renewal application was filed by March 5. JM filed the renewal application March 4. IDEM determined the application was incomplete and asked for more information by June 4. On that date, JM asked for a 60-day extension, which was granted.

    On July 14, IDEM met with Consolidated Waste Industries, a potential buyer of the landfill. On Aug. 5, CWI asked for an extension of time to provide the requested extra information. IDEM denied the request. On Aug. 5, JM asked for an extension of time. On Aug. 18, IDEM denied JM's request for an extension of time and denied the application for renewal of the operating permit because it was not timely filed and JM had not made a good faith effort to provide the extra information.

    The judge ruled IDEM improperly denied JM's request for an extension of time and the permit renewal application, which the judge reinstated. The judge gave JM until Jan. 5, 2005, to submit the requested information.

    Here is a copy of the Oct. 20, 2004 Final Order in the Mallard Lake Landfill permit dispute.

    [Note] Mallard Lake has filed a Motion to Reconsider that portion of the order that gives them until Jan. 5 to submit the information. I'll try to post the ruling on that motion here, as an update.

    Posted by Marcia Oddi on Wednesday, November 17, 2004
    Posted to Indiana Decisions

    Indiana Tax - Criticism of Indiana two-step process for tax abatements

    The Fort Wayne Journal Gazette ran an editorial yesterday criticizing the Indiana tax abatement law:

    Indiana law essentially has a two-step process for abatements, the tax breaks given to businesses for new or expanded operations:

    1. A City Council or County Council must decide a given area is suffering and in need of an economic boost. The council must vote to designate it as an economic revitalization area.

    2. The same council must determine whether a specific business within that area qualifies for and is deserving of the tax break. * * *

    In practice, city councils and county councils throughout the state have long based their decision exclusively on Step 2  whether the business should get the tax abatement. If the answer is yes, Step 1  the economic revitalization area  has been virtually automatic.

    However, thats not the way state law says it should be. Under current law, an economic revitalization area is an area which is within the corporate limits of a city, town or county which has become undesirable for, or impossible of, normal development and occupancy because of a lack of development, cessation of growth, deterioration of improvements or character of occupancy, age, obsolescence, substandard buildings, or other factors which have impaired values or prevent a normal development of property or use of property. * * *

    Which, of course, is clearly not true, nor is it the councils intent to really describe it as such. The bottom line is the revitalization area definition has become meaningless. The County Council is right to take action to hasten tax abatements that would be granted anyway. * * *

    The General Assembly should eliminate the obsolete requirement for economic revitalization areas in order to grant tax abatements.

    Posted by Marcia Oddi on Wednesday, November 17, 2004
    Posted to Indiana Law

    Environment - Rose Acre Farms gets first nod

    This story is not about Indiana. It is a report from a North Carolina paper, the Washington Daily News ("The Voice of the Pamlico") about Indiana-based Rose Acres' permit applications to build a facility for "no more than 4 million hens and 750,000 pullets" in North Carolina. What intrigues me about the story, headlined "Rose Acre Farms gets first nod," is its detail. Some quotes from the beginning of the lengthy story:

    Rose Acre Farms has been recommended for state approval of a water quality permit, following review of input provided at an Aug. 17 public hearing in Ponzer.

    The recommendation, contained in public hearing officer Paul Rawls' report, hinges on the Indiana-based company's incorporating recommendations provided in that report. There are other permits required by the state before construction can begin, however.

    A solid waste permit will be necessary for a composting facility to process manure and dead hens. Don Reuter, state Department of Environment and Natural Resources spokesman, said the Division of Waste Management is reviewing that application.

    If the water quality permit is issued, it would sanction a facility of no more than 4 million hens and 750,000 pullets, 14 high-rise hen houses, three pullet houses, a wastewater aeration basin, storage basin and nitrogen-reduction basin, as well as a land-application site and a stormwater control structure, based on the DWQ report.

    The story continues by reporting on comments and recommendations on issues raised through public comment.

    Posted by Marcia Oddi on Wednesday, November 17, 2004
    Posted to Environment

    Tuesday, November 16, 2004

    Indiana Decisions - 7th Circuit posts one

    Anthony Rashiah, S. v. Ashcroft, John (Petitions for Review of Orders of the Board of Immigration Appeals)

    Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.
    FLAUM, Chief Judge. Petitioners George Malcom Anthony
    Rashiah, his wife Salomi, and their daughter Anne, petition
    for review of an order of the Board of Immigration Appeals
    (BIA) denying their applications for asylum and withholding
    of removal. For the reasons stated herein, we affirm the
    decision of the BIA. * * *

    Our review of the record leads us to agree with the IJ and
    BIA that petitioner has failed to show that it is more likely
    than not that he will be subjected to torture if removed to
    Sri Lanka. The BIAs order applies the correct legal standard
    and its denial of withholding of removal under CAT is in
    accord with the evidence presented.

    III. Conclusion. The order of the BIA is AFFIRMED.

    Posted by Marcia Oddi on Tuesday, November 16, 2004
    Posted to Indiana Decisions

    Indiana Decisions - One today from Court of Appeals

    Ronald J. Lampitok v. State of Indiana (11/16/04 IndCtApp) [Criminal Law & Procedure]
    Kirsch, Judge

    Following a jury trial, Ronald J. Lampitok appeals his conviction for carjacking, See footnote a Class B felony, raising the following restated issues:
    I. Whether the States manner of charging Lampitok with multiple charges stemming from one incident deprived him of due process.

    II Whether the prosecutors comments in his opening statement constituted misconduct and prejudiced Lampitok.

    III. Whether evidence that Lampitok and his nephew, Dominic Fuller, flagged down a motorist in a park, forced that driver to the backseat, and, after releasing the victim, drove the vehicle to Illinois was sufficient to support Lampitoks carjacking conviction.

    IV. Whether the trial court erroneously limited Lampitoks cross- examination of the victim and deprived him of presenting his defense.

    V. Whether the trial court erred when it admitted into evidence alleged hearsay testimony that Fuller instructed Lampitoks girlfriend to locate and dispose of a gun.

    VI. Whether Lampitok was deprived of a fair trial because the trial judge either fell asleep or appeared to do so by having his eyes shut during a portion of defense counsels closing argument.

    VII. Whether the jury rendered inconsistent verdicts when it found Lampitok guilty of carjacking and Class C felony robbery, but acquitted him of kidnapping and criminal confinement.

    VIII. Whether Lampitoks eighteen-year executed sentence for carjacking was inappropriate.

    The State cross-appeals, claiming that it proved two prior unrelated felonies as defined by IC 35-50-2-8, and, therefore, the trial court erred when it granted Lampitoks motion for a directed verdict on the habitual offender charge. We affirm. * * *

    BAKER, J., and ROBB, J., concur.

    Posted by Marcia Oddi on Tuesday, November 16, 2004
    Posted to Indiana Decisions

    Indiana Decisions - [Updated] Judge Barker dismisses securities fraud lawsuit against Guidant Corp.

    The Indianapolis Star has just posted a story on its website headlined "Judge tosses lawsuit against Guidant: Shareholders of the Indianapolis-based medical device firm had sued over cover-up of problems with an abdominal aortic graft." Some quotes:

    A federal judge in Indianapolis has dismissed a securities fraud lawsuit against Guidant Corp. arising from its cover-up of problems with an abdominal aortic graft.

    Judge Sarah Evans Barker ruled that the complaint "fails to state an actionable claim" and that the lead plaintiff may lack legal standing to file the lawsuit.

    Barker's ruling in U.S. District Court for Southern Indiana last week comes 17 months after the original complaint was filed against Guidant. That led to the proposed class-action lawsuit by shareholders of Guidant, an Indianapolis medical device firm.

    The judge said the lawsuit fails because it:

    * Fails to state sufficient facts indicating Guidant's public statements about the graft product were misleading.

    * Fails to state sufficient facts to show Guidant acted with intent to deceive shareholders.

    * Contains largely "statements of puffery" that can't legally be acted on.

    [More] Here is Judge Barker's 11/8/04 48-page entry granting defendant's motion to dismiss: In re GUIDANT CORPORATION SECURITIES LITIGATION.

    Posted by Marcia Oddi on Tuesday, November 16, 2004
    Posted to Indiana Decisions

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

    On Oct. 30 the ILB ran an entry titled "Can a council grant a multiyear employment contract that extends beyond the terms of a majority of its members?" A Gary Post-Tribune story [no longer available] quoted in that entry reports:

    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.
    Today the Post-Tribune brings the story up-to-date. Some quotes:
    MERRILLVILLE Two fired police chiefs. Two questionable extended employment contracts. Two different court rulings. Returned from his vacation Monday, Merrillville Town Attorney Steve Bower said he remained perplexed over Lake Circuit Court Judge Robert Petes ruling in favor of former police chief John Shelhart.

    Bower said while formal documents have not hit the courts, an appeal from the town is coming soon. He said Shelharts case is too similar to the New Chicago one, involving fired police chief Ronald Taylor, for the judge to have ruled dissimilarly. He wants to argue the matter before the Indiana Court of Appeals, and anticipates that the Shelhart and Taylor cases could be consolidated by the higher court. Without that, he said, confusion persists as to what is acceptable in Indiana.

    Pete ruled last Friday that the town fired Shelhart in January without cause, and that the chief should have completed his two-year, nine-month contract, despite the fact that the contract stretched beyond the terms of some councilmen who appointed him. * * *

    However, on Sept. 8, Lake Circuit Judge Gerald Svetanoff found that New Chicago was justified in firing Taylor in January after a two-year contract was inked with him by outgoing council members. * * *

    Some differences exist between the two lawsuits. In New Chicago, all the council members who granted Taylor the new contract were replaced and they knew they would be because they waited until after the May primary to act. In fact, they contracted with Taylor in September three months before leaving office.

    On the contrary, five of seven Merrillville council members were replaced and the council gave Shelhart the deal in March 2003, way before any primary or election.

    Dave Westland, attorney for Shelhart, said unlike in New Chicago, the Merrillville town council didnt know they wouldnt be around for the duration of Shelharts term. He said they acted as school boards do when they hire a superintendent to last beyond their terms.

    Posted by Marcia Oddi on Tuesday, November 16, 2004
    Posted to Indiana Law

    Environment - Stories today

    "Residents see more soot from steel mill" is the headline to this story today in the Gary Post-Tribune. Some quotes:

    OGDEN DUNES Longtime residents say pollution from nearby steel mills has been worse than normal this year. Community members are launching an educational campaign, bringing the Indiana Department of Environmental Management into the community to make a presentation to residents.

    Some, like Mike Frankovich, have also spoken to the Portage Port Authority. The boats were getting very, very dirty, Frankovich said. Everybody at the marina was complaining.

    Richard Holm also boats near the mills, and on Thursday he gave photos to the Port Authority of pollution on his boat, which he is having trouble cleaning off. When you clean it, theres still some kind of residue, Holm said.

    The residents have only been able to quantify the increase in pollution anecdotally. IDEM spokeswoman Laura Pippenger said the ozone standards were not exceeded in Porter County this year, and she knew of no other excesses.

    "CAFO control OK'd by Blackford County" is the headline to this story today in the Muncie Star-Press. Some quotes:
    HARTFORD CITY - Blackford County Commissioners approved a zoning amendment Monday that would subject confined animal feeding operations (CAFOs) to the authority of the Board of Zoning Appeals.

    The 3-0 vote occurred less than two weeks after a Netherlands couple applied to the Indiana Department of Environmental Management for a permit to build and operate a 2,000-head dairy CAFO two miles northest of the city.

    Hartford City, Montpelier and Shamrock Lakes must also approve the amendment before it takes effect.

    "We went this route because it gives local residents a chance to voice their opinions, whether pro or con, at the local level, compared to (commenting) just with IDEM," said Larry Hile, one of two farmers on the board of county commissioners. * * *

    Oolman Dairy would be Vreba-Hoff Dairy Development's fourth dairy CAFO in East Central Indiana and 13th in Indiana. Wauseon, Ohio-based Vreba-Hoff helps Dutch and other European farmers relocate to Indiana, Michigan and Ohio.

    Opponents are concerned about water, air and noise pollution; decreased property values, and a breakdown in their quality of life. Proponents say the $12-million dairy will create new opportunities for feed production, calf and heifer raising, veterinarian services, milk hauling, farm repair, farm equipment and other services.

    "This is a very, very poor location for a dairy because of the flooding," said Elizabeth Thomas, a legal assistant. "We have water that stands out there four to six weeks at a time (up to) three times a year."

    The ground near the proposed dairy is so saturated that it requires pumping stations to keep it drained, she said.

    "Our concern is water pollution," said Pam Bolt, a library bookkeeper. "We've read about different instances at Vreba-Hoff dairies where they've had leaks - and streams have been contaminated. We operate off of a (drinking-water) well."

    Vreba-Hoff-affiliated DeGroot Dairy in Huntington County recently paid the state $45,000 to settle a complaint that it contaminated a waterway. The settlement did not require DeGroot to admit any wrongdoing.

    "The major concern I have is just having all the manure there," said Pat McAtee, owner of a fabrication shop, referring to millions of gallons of manure that will be stored in a lagoon and applied as fertilizer to farm land every year.

    Posted by Marcia Oddi on Tuesday, November 16, 2004
    Posted to Environment

    Monday, November 15, 2004

    Law - Beavers Make Dam Out of Stolen Money

    The AP is reporting today:

    GREENSBURG, La. (AP) - Beavers found a bag of bills stolen from a casino, tore it open and wove the money into the sticks and brush of their dam on a creek near Baton Rouge.

    "They hadn't torn the bills up. They were still whole," said Maj. Michael Martin of the East Feliciana Parish Sheriff's Office.

    The money was part of at least $70,000 taken last week from the Lucky Dollar Casino in Greensburg, about 30 miles northeast of Baton Rouge. * * *

    [Note:] No, this casino story is not related to the story below on the Blue Chip Casino.

    Posted by Marcia Oddi on Monday, November 15, 2004
    Posted to General Law Related

    Indiana Decisions - OEA dismisses challenge to Blue Chip Casino water permits

    Blue Chip Casino v. Nauyokas (11/12/04 OEA)
    Davidsen, Chief ELJ

    [The ELJ] finds that the Petition for Administrative Review and Petition for Stay of Effectiveness is dismissed involuntarily, per Ind. Trial Rule 41(B) and Ind. Code 4-21.5-3-7 for lack of standing to seek administrative review of the permits in issue. Judgment may be made upon the record. The ELJ, by a preponderance of the evidence, now makes the following findings of fact and conclusions of law, and enters the following Order with respect to the Petition of Robert and Michele Nauyokas. * * *

    16. This Court concludes that Huffman [v. IDEM] provides legal precedent applicable to these Petitions; a similar standard was applied by this Court in In re: Objection to the Issuance of the Modification to Permit FP # 82-02 Laubscher Meadows Landfill, Vanderburgh County, Indiana, Cause No. 96-S-J-1677 (Sept. 26, 1998)(allegations that organization had members in immediate vicinity of facility who believe that the approval and implementation of the permit may cause serious injury to their health, environment and value of property insufficient to support aggrieved and adversely affected claim). Even if this Court were to adopt the rationale used by the New Jersey District Court in 1991, Petitioners did not present substantial evidence to demonstrate that they suffered, or were likely to suffer, injuries through waters directly affected by discharges, and did not establish evidence of illegal discharges, as found sufficient in Public Interest Research Group of New Jersey, Inc. v. GAF Corporation, 770 F.Supp. 943, 952 (D.N.J. 1991). Petitioners did not present substantial evidence to demonstrate that they or The Cool Pepper were harmed by continuous and illegal pollutant discharges, had more than a remote and speculative recreational interest in the affected waters, nor that a standing analysis rejected in Huffman should be applied as was analyzed in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 184-185 (2000), in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000), in Sierra Club v. Simkins Industries, Inc., 617 F.Supp. 1120 (D. Md. 1985), or in Matter of Recovery I, Inc., 635 So.2d 690 (La.Ct.App. 1994). 17. For lack of substantive evidence probative that Petitioners are aggrieved or adversely affected by IDEMs issuance of Section 401 Water Quality Certification No. 2003-433-46-MTM-A, and NPDES Permit No. IN 0062073, Petitioners Petitions for Administrative Review and Petitions for Stay of Effectiveness should be dismissed.

    Access the ILB entry on the 6/30/04 ruling in Rosemary Adams Huffman v. Indiana Department of Environmental Management, et al. here (4th case).

    Posted by Marcia Oddi on Monday, November 15, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Camm to face murder charges again

    The Louisville Courier-Journal is reporting this afternoon: "David Camm to face murder charges again." Some quotes:

    Floyd County, Ind., Prosecutor Keith Henderson announced this afternoon that he planned to re-file charges against former state trooper David Camm in the September 2000 murders of his wife and two children. * * *

    He said he will release a new probable-cause affidavit today in which some of the evidence against Camm will be detailed.

    A hearing is scheduled today in Floyd Circuit Court on a request by Camms attorneys to have him released on bond pending trial. * * *

    The Indiana Court of Appeals overturned the conviction in August. It said the jury was unfairly biased against Camm by testimony from a dozen women who said they had affairs with Camm or were propositioned by him.

    Earlier this month the Indiana Supreme Court announced it wouldnt consider the Court of Appeals decision, leaving it up to Henderson to decide whether charges should be re-filed.

    [Update 11/16/04] The Louisville Courier-Journal has this story today, headlined "Prosecutor to refile charges in Camm case: New murder evidence cited against ex-state trooper."

    Posted by Marcia Oddi on Monday, November 15, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Two new Court of Appeal and one Tax Court opinions today

    Aaron Reemer v. State of Indiana (11/15/04 IndCtApp) [Criminal Law & Procedure]
    Najam, Judge

    Aaron Reemer appeals his conviction for Possession of a Drug Precursor, as a Class D felony, following a bench trial. Reemer raises two issues for our review, one of which we find dispositive: whether the State presented sufficient evidence to support his conviction. We reverse. * * *

    Still, the State baldly asserts that [p]seudoephedrine hydrochloride is a salt of pseudoephedrine. But it does not offer any authority to substantiate that claim. In any event, the States belated attempt to bridge this evidentiary gap must fail. It is axiomatic that appellate review of the factfinders assessment is limited to those matters contained in the record which were presented to and considered by the factfinder. On appeal, judicial notice may not be used to fill evidentiary gaps. Dolkey, 750 N.E.2d at 462. We cannot take judicial notice on appeal whether pseduoephedrine hydrochloride is a salt of pseudoephedrine. See Ind. Evidence Rule 201(a).

    In sum, the State failed to prove that pseudoephedrine hydrochloride is a salt of pseudoephedrine and, thus, failed to prove an essential element of the offense. We are, therefore, compelled to reverse Reemers conviction for insufficient evidence, and Reemer may not be retried on this charge. See Cockrell v. State, 743 N.E.2d 799, 803 (Ind. Ct. App. 2001) (When a conviction is reversed due to insufficient evidence, double jeopardy precludes retrial of the overturned conviction.). Reversed.
    SULLIVAN, J., and BARNES, J., concur.

    M.C. v. State of Indiana (9/23/04 IndCtApp) [Juvenile Law]
    [Originally issued as NFP; published upon Appellant's motion, granted 11/10/04]
    Riley, Judge
    Appellant-Respondent, M.C., a juvenile, appeals the trial courts restitution order after an adjudication finding him to be a delinquent child for committing Count I, failure to stop after accident, Ind. Code 9-26-1-1, 9-26-1-8, an act which would be a Class A misdemeanor if committed by an adult; and Count II, failure to stop after accident, I.C. 9-26-1-1, 9-26-1-8, an act which would be a Class B misdemeanor if committed by an adult. We reverse and remand. * * *

    Based upon all of the above, we find that the trial court ordered M.C. to pay restitution for an act that is not supported by the evidence. Consequently, we conclude that the trial courts determination is clearly against the logic and effect of the facts and circumstances before the court. See Matter of L.J.M., 473 N.E.2d 640. As a result, we find that the trial court abused its discretion in ordering M.C. to pay restitution. See J.P.B., 705 N.E.2d at 1077. Accordingly, there is no need for this court to address the merits of M.C.s last claim that the trial court erred in failing to inquire into his ability to pay restitution.

    Based upon the foregoing, we conclude that the trial court abused its discretion in ordering M.C. to pay restitution in the amount of $7,005.60.
    Reversed and remanded.
    CRONE, J., and VAIDIK, J., concur.

    The Majestic Star Casino, LLC v. Booker Blumenburg, Jr., Township Assessor of Calumet Township, Lake Co., Indiana (11/12/04 IndCtApp) [Property Tax; Constitutional Law]
    Fisher, Judge
    The Majestic Star Casino, LLC (Majestic Star) appeals the Indiana Board of Tax Reviews (Indiana Board) final determination valuing its casino riverboat (riverboat) for the March 1, 1997 assessment date. The Court is presented with the following issues on appeal:
    [1] Whether the assessment of Majestic Stars riverboat as real property violates Article 10, 1 of the Indiana Constitution;
    [2] Whether, in making its final determination, the Indiana Board arbitrarily withdrew the admissions of the Township Assessor;
    [3] Whether the Indiana Board erred in calculating the amount of physical depreciation applicable to Majestic Stars riverboat; and
    [4] Whether the Indiana Board erred in calculating the amount of obsolescence depreciation applicable to Majestic Stars riverboat? * * *

    Majestic Star asserts that the assessment of the Majestic Star I violates Article 10, 1 of the Indiana Constitution. More specifically, it argues that

    [p]rinciples of uniformity and equality in assessment and taxation are violated when a taxpayer is assessed and taxed on a different basis compared to taxpayers with substantially similar property. It cannot be disputed in this case that [the] Majestic Star [I] is being assessed on a basis different from property with substantially similar physical characteristics. The only distinction between the [Majestic Star I] and a [commercial vessel] is whether [or not] the passengers on board the vessel engage in gambling[.]*****
    The classification in this case . . . results in the anomalous situation in which property that may be physically indistinguishable from [Majestic Stars] is taxed at a tiny fraction of the [Majestic Star I] merely on the basis of the recreational or entertainment activities that take place on the boat. This is an arbitrary distinction not based on any physical differences inhering in the property in issue and not based on any difference in value.
    Consequently, Majestic Star asserts that Indiana Code 6-1.1-1-15(5), which classifies riverboats as real property, is unconstitutional. * * *

    The Indiana legislature has chosen to classify vessels, for purposes of property taxation, based upon whether gambling occurs on those vessels. While the reason for this treatment may not be based upon differences naturally inhering in the vessels themselves, it is most definitely based upon differences naturally inhering in the subject matter of the legislation that creates the classification. In other words, the legislature legalized riverboat gambling in an effort to revitalize/promote/enhance the economy in local areas; by requiring riverboats like Majestic Star I to pay property taxes, revenue is pumped back into the local economy. See Indiana Dept of State Revenue v. Trump Indiana, Inc., 814 N.E.2d 1017, 1021 (Ind. 2004) (acknowledging the legislatures power to classify [riverboats] as [both] realty and [] as personalty to effectuate independent statutory schemes of taxation).

    In addition, all taxpayers within this classification are treated equally. There is no artificial distinction between certain members of the class: all riverboats are subject to taxation as real property. Thus, the Court finds no violation of Article 10, 1. See St. John V, 702 N.E.2d at 1042. The Indiana Boards final determination with respect to this issue is therefore AFFIRMED. * * *

    For the foregoing reasons, this Court AFFIRMS the Indiana Boards final determination with respect to Issue I. The Indiana Boards final determination with respect to Issues II, III, and IV, however, is REVERSED. The Court therefore REMANDS those issues to the Indiana Board for proceedings consistent with this opinion.

    Posted by Marcia Oddi on Monday, November 15, 2004
    Posted to Indiana Decisions

    Indiana Law - Indiana's flood maps reportedly outdated

    The Indianapolis Star has a story today headlined "Old flood plain maps can lead to trouble." The lead talks about a family that, "like most Indiana homeowners," did not have flood insurance. Some quotes from the story:

    They weren't required to because their home wasn't shown on federal maps to be in a flood plain, an area of overspill from a nearby waterway.

    But most of Indiana's flood plain maps are so outdated that they may not reflect actual flooding risks after decades of development and filling, leaving some Hoosiers with a false sense of security and a few with thousands of dollars in losses.

    More than half of Indiana's flood plain maps are more than 15 years old, and in some areas they're 25 years old.

    "It could very well be the case that a house is in a flood plain now but wasn't 25 years ago, or that (maps) might identify areas as subject to risk when they aren't," said Jon Stolz, manager of Christopher Burke Engineering, an Indianapolis firm that specializes in land-use planning and advises an alliance of communities along upper White River.

    Flood plain maps, created by the Federal Emergency Management Agency, are supposed to be a sort of safety net.

    If homes are in a flood-prone area, mortgage lenders usually require owners to buy flood insurance. The maps also serve as a warning to residents that their property is vulnerable.

    In Hamilton County, for example, FEMA issued new flood plain maps in 2003 that added previously unlisted parcels to the flood hazard area. As a result, public works officials in rapidly growing Fishers announced that some unprotected homeowners might have to get flood insurance.

    They also warned that homeowners who are not contacted by their lenders might not learn of their new status, or the potential for flood damage, unless they tried to refinance their mortgage.

    Malls, subdivisions, roadways and other development can change where water goes and how fast it moves, making updated flood maps critical, Stolz said. * * *

    By the mid-1960s, U.S. insurance companies wanted out of the flood insurance business, calling it too risky and too costly.

    So in 1968, the National Flood Insurance Program was begun, allowing residents whose communities joined the program to buy insurance guaranteed by the federal government. Private insurers still sold the policies, but FEMA underwrote them, set the rates and paid insurers' commissions.

    But to develop rates, FEMA needed to identify areas at risk of flooding.

    The agency drew maps outlining flood plains with the intention of updating them periodically. But too little money was allocated to update maps, and the agency fell years behind, said Mary Jo Mullen, a FEMA engineer.

    Hurricane Floyd, which brought disastrous flooding to North Carolina in 1999, helped call attention to the issue because outdated flood plain maps made it impossible for state authorities to plan for and manage the flooding. In 2001, Congress announced a five-year, billion-dollar program to update the maps, which began last year. But FEMA says it still needs help from cities and states to get the job done.

    In Indiana -- where the Labor Day flood underscored the need to update maps -- the state Department of Natural Resources is leading FEMA's map modernization efforts. It has converted old paper maps to a computerized, digital format, which allows them to be overlaid with satellite photos that show exactly where houses have been built and filling has occurred, said David Knipe, manager of the DNR engineering section.

    Next, the DNR wants to begin redrawing flood plain boundaries; that would include looking at areas where flooding occurred outside the original flood plain, Knipe said.

    "All that flooding will help us in redoing the maps," he said. "We plan to meet with each county . . . and get their input as to where the maps are wrong."

    Marion County's maps were converted to a digital format in 2001, but the boundaries were not redrawn, said Donna Price, Indianapolis' flood plain manager and liaison to FEMA. Flood plain maps for the city last were revised in 1988.

    "We had been asking for a long time to get updated (maps) because we have to regulate by these maps, and we need to protect citizens," Price said. "Without accurate maps, we could allow a structure to get built that could get flooded."

    As parts of this story sounded familiar, I looked back and found an Indiana Law Blog entry from Sept. 19, 2003, which began by quoting from a front-page Wall Street Journal story from that day:
    The Federal Emergency Management Agency is about to launch an extensive nationwide effort to redraw the maps that predict where floods are likely to occur, a move that will have major financial implications for homeowners, property developers and the government-run flood-insurance program.
    The entry also reports on the:
    $1.7 million the department will give each state and U.S. territory to update flood maps. * * * Congress has approved $150 million for fiscal 2003 to start the remapping process. In the second phase of financing, states will have two years to create plans for managing more money to modernize maps and maintain flood hazard information. Financing for the second phase has not been determined.
    Access the entire ILB 9/17/03 entry here. [Unfortunately, for some reason I can only link to the entire month of Sept. 2003, so you will have to scroll a little more than halfway down to find the entry titled "Law - FEMA to Redraw Nation's Flood Maps." Or use your browser's FIND tool.]

    Posted by Marcia Oddi on Monday, November 15, 2004
    Posted to Indiana Law

    Indiana Law - Critics question state annexation laws

    A story in the Indianapolis Star today about Carmel's proposed annexation plans also gives a broader look at the current Indiana law concerning annexation, and raises the question of whether a spot fix to meet the Carmel issue is warranted vs. whether a long history of such situation-specific "fixes" has made the current law unworkable. Some quotes:

    While Carmel is expected tonight to give its final approval of annexations in southwest Clay and Home Place, property owners across Hamilton County have cried for changing state law to give them more say-so. At least two state legislators say they are ready to push for change. "There are a number of legislators acknowledging we have a problem and the time for change is probably now," said state Sen. Jeff Drozda, R-Westfield. "They're concerned about the aggressiveness Carmel has taken and say Carmel is giving other cities a bad name because of their confrontational perspective. That troubles them greatly."

    At least one expert, however, says the state needs sweeping reform, not piecemeal tinkering, if it wants sound annexation rules.

    Drozda and state Rep. David Orentlicher, D-Indianapolis, back making the fight easier for property owners opposed to an annexation.

    The most common way to stop an annexation is to gather signatures from 65 percent of the property owners in the annexation area. That requirement used to be a simple majority, 51 percent, and Drozda and Orentlicher want to reinstate that number. * * *

    Even better than dropping the requirement to 51 percent would be to require a referendum, Drozda and [Westfield council President Teresa Otis] Skelton say.

    "To me, it's more fair if you put something to a referendum, because it's just no fair for people to have to go out and raise money, organize people and collect signatures," Drozda said. "A referendum is easier to involve everyone, and it just makes sense."

    [Westfield Town Manager Jerry] Rosenberger said he would never support a referendum. Neither would [Carmel Mayor Jim] Brainard or Carmel City Council President Ron Carter. * * *

    Whatever the outcome of Drozda and Orentlicher's efforts at the Statehouse, a couple of local legislators lobbying for their individual causes won't improve the law, says Michael Shaver, an annexation expert with Wabash Scientific. His company advises cities on planning and land-use issues, and Shaver has served as a consultant for several communities across the state. He said the laws needs a complete overhaul.

    "This statute has been repeatedly butchered by the legislature, and it has degenerated into a series of special interests legislation -- similar to what Drozda and Orentlicher want," Shaver said. "When the only motivation is political expediency, then it is self-defeating in the end."

    Shaver said the law was last changed to accommodate an annexation dispute in Fort Wayne. He said poorly written laws have led to a growing number of annexation feuds between cities and towns.

    In addition to the Carmel-Westfield fight, similar tiffs have occurred between Greenwood and Bargersville south of Indianapolis and between Muncie and Yorktown. In all cases, the cities -- Carmel, Greenwood and Muncie -- have used state law to keep neighboring towns from expanding. Shaver said Indiana law should treat cities and towns equally.

    "The reason I think this is such a mess is because the legislature has treated it as a political football as opposed to a critically important part of the future of our state," Shaver said. "That has led directly to these kinds of brawls we're having between municipalities when we could have achieved orderly growth."

    Posted by Marcia Oddi on Monday, November 15, 2004
    Posted to Indiana Law

    Environment - Recent stories

    Lead grants. The Fort Wayne Journal Gazette has an editorial today on an investigation into Indiana's failure to receive any recent HUD grants for lead-poisoning education and eradication programs. A quote:

    HUD used an outside contractor to review grant applications in an effort to expedite the distribution of the Lead Hazard Control and Healthy Homes grants. It appears the contractor failed to select the most deserving applications. For example, nine Indiana agencies applied for slightly more than $12.5 million of grant money. All were denied, including a $3 million request from the city of Fort Wayne. Meanwhile, a Colorado property developer whom HUD previously fined for violations of lead hazard disclosure rules was lucky enough to receive $2 million. And other approved applications appear ineligible under HUD guidelines.
    The Journal-Gazette ran an editorial last Friday on the new clean-coal plants "that American Electric Power and Cinergy/PSI want to build in Indiana." It concludes:
    Indiana is a desirable location for the plants because of the ready access to coal supplies. According to the National Mining Association, Indiana is ranked ninth in the nation for coal production. In 2002, Indiana produced 33 million tons of coal much of it going toward electricity production. Coal produces 95 percent of Indianas electricity and 50 percent of the nations electric power.

    The electric companies need the new plants to keep up with increasing demand for energy. Both companies hope to build the plants by 2010 to meet growing electricity needs.

    Indianas ability to provide coal has long been an economic advantage; it has also led to environmental concerns. Too many of Indianas counties are failing to meet Environmental Protection Agency air quality standards. Counties designated as having non-attainment status by the EPA can be subject to industry restrictions that can hamper economic development.

    Government leaders need to encourage the electric companies to improve air pollution prevention technology at existing plants before they add capacity. And power companies and their customers need to find ways to conserve energy and reduce the demand.

    Recycling. The Terre Haute Tribune Star has a long article today titled "Recycling slowly having impact in Wabash Valley: Indiana State Recycling Center experiences success."

    Posted by Marcia Oddi on Monday, November 15, 2004
    Posted to Environment

    Sunday, November 14, 2004

    Indiana Law - U.S. 31 neighbors study their rights

    "U.S. 31 neighbors study their rights" is the headline to this story today in the South Bend Tribune about "property acquisition, citizen rights." Some quotes:

    LAKEVILLE -- Clifford Hamilton knows the improvements he makes to his apartment and business complex along U.S. 31 between Dice and Pulling streets will not be long-term investments. The business at 5803 S. Michigan St., he is told by the Indiana Department of Transportation, may be bulldozed to make way for the proposed U.S. 31 hybrid route.

    Sixty residents and business owners like Hamilton who will be affected by the new highway came to the Old Lakeville School Project Saturday to hear about their rights as the state begins to take over their properties. * * *

    Norman Milcherska was one of many residents who said they were frustrated by the uncertainty of when exactly their land might be acquired. Milcherska said the project is devaluing his land and has made it impossible for him or any of his neighbors to sell their homes. "They have us in limbo. They won't give us any information. People need to move on with their lives," he said.

    Jeffrey Dierbeck, the event's organizer, said he hoped the event would serve as a first step in mobilizing and uniting residents. "It's a lifetime decision that will affect our children and our grandchildren," Dierbeck said of the highway,

    Christine Baynes, project manager for InDOT, said the agency follows federal guidelines when it buys private property for projects. It's going to be two or three years before acquisition begins, she said. First, the Federal Highway Administration must approve InDOT's corridor selection -- a decision InDOT expects to occur early next year.

    Posted by Marcia Oddi on Sunday, November 14, 2004
    Posted to Indiana Law

    Law - State constitutions v. the federal constitution

    Here is the Table of Contents for the upcoming Volume 46, Issue 4 (February 2005) of the William & Mary Law Review:

    James A. Gardner, Whose Constitution Is It? Why Federalism and Constitutional Positivism Don't Mix

    Hans A. Linde, The State and The Federal Courts In Governance: Vive La Diffrence!

    Robert J. Pushaw, Jr., Bridging the Enforcement Gap In Constitutional Law: A Critique of The Supreme Court's Theory That Self-Restraint Promotes Federalism

    Chief Justice William H. Rehnquist, Remarks at the National Center for State Courts Conference on State Constitutionalism

    Jim Rossi, Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally-Inspired Regulatory Programs and Standards

    Lawrence G. Sager, Cool Federalism and The Life-Cycle of Moral Progress

    Robert A. Schapiro, Interjurisdictional Enforcement of Rights in A Post-Erie World

    Randall T. Shepard, In a Federal Case, Is the State Constitution Something Important or Just Another Piece of Paper?

    Michael E. Solimine, The Future of Parity

    Robert F. Williams, State Courts Adopting Federal Constitutional Doctrine: Case-By-Case Adoptionism or Prospective Lockstepping?

    Below is an abstract to the article serving an an introduction to the issue, titled "The New Frontier of State Constitutional Law." The article itself is available via a download link on the SSRN abstract page:
    In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized jurisdictional context. Instead, the Symposium invited participants to consider directly whether state and federal constitutional law are separate and distinct systems of law, each with its own doctrines, traditions, and dominant norms, or whether state and federal constitutional law may profitably be understood as complementary features of a shared project of elaborating and enforcing shared constitutional norms. The Articles in this issue lie along what we hope will prove to be a new frontier that moves courts and scholars closer to a sustainable interpretive theory of state constitutions, shedding important light on the role of state courts, while also addressing the federal judicial role in a system of dual enforcement.
    [More] See this column today in the Washington Post on "How the Court Is Stifling Innovation at the State Level."

    Posted by Marcia Oddi on Sunday, November 14, 2004
    Posted to General Law Related

    Indiana Law - Valpo lawyer serving as Iraq�s ambassador to the United Nations

    The Gary Post-Tribune reports today on Feisal Istrabadi:

    Appointed in July as Iraqs new ambassador to the United Nations, Istrabadi has put his Valparaiso law practice on hold and moved to New York. The shift from lawyer to diplomat has kept him in New York, while his wife and two daughters, ages 4 and 6, have remained behind in Valparaiso. * * *

    Istrabadis parents immigrated to America in 1970, two years after Saddam Hussein took power. He was born in northern Virginia, but spent his early years growing up in Iraq. When the family returned to the States, Istrabadi spent his preteen and teenage years in Bloomington. He earned a bachelors degree in chemistry and a law degree from Indiana University, where he met his wife.

    Before his appointment as ambassador, Istrabadi was a senior adviser to Adnan Al-Pachachi, a member of the interim Iraqi Governing Council. Istrabadi helped write Iraqs interim constitution, adopted earlier this year.

    Posted by Marcia Oddi on Sunday, November 14, 2004
    Posted to Indiana Law

    Saturday, November 13, 2004

    Indiana Courts - Madison County�s fiscal problems could have an impact on death penalty case

    The Anderson Herald Tribune reports:

    Madison Countys fiscal problems could have an impact on the death penalty case filed earlier this year against Fredrick Baer, accused of slashing the throats of a Lapel mother and her daughter.

    Baer, 32, Indianapolis, was arrested on Feb. 26 when Madison County Sheriffs Department investigators linked him to the slaying of Cory Clark, 26, and Jenna, 4, on Feb. 25.

    Baers attorney, Doug Long, filed a motion to dismiss the death sentence request against Baer in Madison Superior Court 1 because the county has not been paying claims submitted by the defense team.

    Baer has been charged with two counts of murder, attempted rape, robbery resulting in bodily injury, burglary resulting in bodily injury, burglary, two counts of theft, being an habitual offender and a death penalty request.

    The motion states that defense attorneys Doug Long and Bryan Williams, along with mitigation specialist Michelle Delph, investigator William McCallister and court reporter Diana Williams have not received payment for services rendered.

    Longs motion contends that Baers constitutional right to a fair trial should not be deprived by the financial condition of the county.

    The state should not be permitted to seek the extraordinary penalty of death where it is not prepared to provide the funds necessary for an adequate and effective defense, the motion states. * * *

    Richmond attorney E. Thomas Kemp reports on this story and another similar story from Grant County in an entry Friday in his Kemplog.

    Posted by Marcia Oddi on Saturday, November 13, 2004
    Posted to Indiana Courts

    Environment - Huntington dairy paying $45,000 in suit settlement

    "Huntington dairy paying $45,000 in suit settlement" is the headline to a story today in the Fort Wayne Journal Gazette. Some quotes:

    As part of a settlement reached with state environmental officials, operators of the DeGroot Dairy in rural Huntington County will contribute $45,000 to be split between the Indiana Department of Environmental Management and the state attorney generals office.

    The agreement in which DeGroot admitted no wrongdoing was reached this month. It outlines measures intended to ensure long-term compliance with state environmental regulations and water quality, said Amy Hartsock, IDEM spokeswoman.

    The DeGroot Dairy, a 1,400-cow operation at 8631 W. County Road 200 S., near Andrews, drew fire from concerned residents and state officials last fall after contamination was found twice in 11 days in the George W. Young drain, which is about 1 1/2 miles from the Salamonie Reservoir and near the dairy. * * *

    IDEMs part of the $45,000 will cover litigation, consulting and testing fees, Hartsock said, as well as the Indiana Environmental Management Special Fund.

    An IDEM press release from March of this year contains preliminary information.

    Posted by Marcia Oddi on Saturday, November 13, 2004
    Posted to Environment

    Friday, November 12, 2004

    Indiana Decisions - Two from Court of Appeals, One from Tax Court

    Terry Garner v. Eric Kovalak (11/12/04 IndCtApp) [Torts]
    May, Judge

    Terry Garner appeals the small claims courts judgment in favor of Eric Kovalak. Garner raises one issue, which we restate as whether the court erred when it determined Kovalak was not liable to Garner for the damage Kovalak caused to Garners trees when Kovalak swerved into Garners yard to avoid a car crash. We affirm. * * *

    As a trier of fact could reasonably find Kovalaks action was impelled by the brown Cadillac, we decline to hold as a matter of law his act was intentional.
    Affirmed.
    SHARPNACK, J., and BAILEY, J., concur.

    Gary Gross and Angel Hartman v. State of Indiana (11/12/04 IndCtApp) [Criminal Law & Procedure]
    Barnes, Judge
    Case Summary. Gary Gross and Angel Hartman appeal their two convictions each for Class D felony neglect of a dependent. We reverse.

    Issue. The sole restated issue is whether there is sufficient evidence to support Gross and Hartmans convictions. * * *

    Conclusion. There is admittedly a fine line between properly exercising the police power to protect dependents and improperly subjecting every mistake a parent may make in raising his or her child to prosecutorial scrutiny. In this particular case, whether Gross and Hartmans playing the hostage game with children requires the involvement of a child welfare office is something we need not decide, but we are confident that this does not support a criminal conviction for neglect of a dependent. We reverse all four convictions on the basis of insufficient evidence. Reversed.
    NAJAM, J., and SULLIVAN, J., concur.

    DaimlerChrysler Corporation v. Indiana Dept. of State Revenue (11/10/04 IndTaxCt - NFP) [Sales tax]
    Fisher, J.
    DaimlerChrysler Corporation (DaimlerChrysler) challenges the Indiana Department of State Revenues (Department) final determinations that it is not entitled to a refund of Indiana gross retail (sales) tax that it paid in 1999 and 2000 (the years at issue). The matter is currently before the Court on the parties cross-motions for summary judgment. The sole issue for the Court to decide is whether, pursuant to Indianas sales tax statutes, DaimlerChrysler is entitled to a refund of sales tax that it reimbursed to purchasers of its automobiles pursuant to Indianas Lemon Law. * * *

    For the above stated reasons, DaimlerChrysler is not entitled to a refund of sales tax that it reimbursed purchasers of its vehicles under Indianas Lemon Law. Consequently, the Court GRANTS summary judgment in favor of the Department and against DaimlerChrysler.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts four

    Details later.

    USA v. Pittman, Maurice C. (SD Ill.)

    Baird, Arthur P. v. Davis, Cecil (SD Ind., Larry J. McKinney, Chief Judge)

    Baird, Kelly v. Bd Educ Warren 205 (ND Ill.)

    USA v. McKee, Henry (ND Il.)

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Transfer list for week ending November 12, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending November 12, 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: Burd Management, LLC v. State of Indiana. Access the ILB entry on the now vacated Court of Appeals opinion here.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Transfer Lists

    Indiana Decisions - Judge Barker rules ELA is retroactive

    In a ruling dated Wed., Nov. 10, 2004 U.S. District Judge Sarah Evans Barker has ruled that the Indiana Environmental Legal Actions statute, IC 13-30 9, is retroactive.

    The case is Commercial Logistics Corp. V. ACF Industries, Inc. From the opinion:

    Section 13-30-9-2 of the ELA, Ind. Code 13-30-9-1 et. seq, provides:
    A person may bring an environmental legal action against a person who caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.
    * * *[After reviewing The Pantry, Inc. v. Stop-N-Go Foods, Inc., 777 F. Supp. 713, 720 (S. D. Ind.1991)] We can think of no principled reason not to apply the same analysis which allows the retroactive application of UST - analogy to federal environmental law - not to be similarly applicable to the complementary environmental cause of action authorized by the ELA, adopted one year later. * * *

    [After quoting from Commr, Ind. Dept of Envt Mgmt v. Bourbon Mini-Mart, Inc., 741 N.E.2d 361, 370 (Ind. App. 2000)] We agree there are differences [between the ELA and CERCLA], but they are mostly in the details. The liability schemes differ - liability under CERCLA is strict, joint and several, whereas it is fault-based under the ELA - and the scope of the ELA is broader because it includes petroleum releases in addition to hazardous substance releases. Yet, we are drawn to the strong judicial recognition expressed in other cases that the Indiana environmental statutes closely resemble CERCLA in language, spirit and purpose. This view causes us to conclude here that the ELA applies to the litigants in this case. Indeed, the lack of an express retroactivity clause in the ELA has not prevented retroactive applications of that law to redress and remedy pre-enactment pollution, as has been true with CERCLA actions. We believe the Indiana Supreme Court would conclude that the ELA, like the rest of Indiana environmental statutes that were enacted at about the same time, may be applied retroactively without violating the intent of the Indiana General Assembly, despite the absence of an express provision that the statute apply to conduct predating its enactment. Thus, Defendants Motion to Dismiss must be denied.

    Conclusion. For the reasons outlined above, Defendants Motion to Dismiss for failure to state a claim upon which relief can be granted is hereby DENIED.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Decisions

    Indiana Law - Allen County to hold course on local government

    The Fort Wayne Journal-Gazette reports today:

    Allen County residents will have an opportunity to learn everything they want to know about local government over the next month.

    The Charter Government Study Project Inc., a group investigating how to make local government more efficient, will conduct a Government 101 class to educate residents about how local government operates.

    Ben Eisbart, co-chairman of the study project, said raising awareness about how government works among residents will help spur discussion on how government can improve. Its important to figure out where you are before you figure out where youre going, he said.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Law

    Indiana Courts - More on Video store hearing before Judge Barker

    As last reported on in this ILB entry on Wednesday, U.S. District Judge Sarah Evans Barker is presiding over "a hearing in federal court on whether New Albany should be ordered to let an adult video store reopen." Today's Louisville Courier-Journal coverage is headlined "Both sides see positives in judge's questions on adult store." Some quotes:

    U.S. District Judge Sarah Evans Barker questioned many aspects of New Albany's adult-entertainment ordinances in a hearing Tuesday on whether an adult video store should be allowed to reopen.

    Steve Mason, the lawyer for the adult store, said the judge's questions left him confident she is concerned about the issues he's raising. "You never can predict how it will go," Mason said. "I can tell you I feel good about it."

    Shane Gibson, the New Albany city attorney, also said Barker is closely engaged in the case and asked many "pointed and insightful questions." Gibson said he too was pleased with the hearing, which was held in Indianapolis. "There was nothing that happened we didn't expect." He also declined to predict Barker's decision. The judge did not say when she would make it, but the lawyers must first provide her with additional documents.

    The hearing was on the request for a preliminary injunction ordering the city to let the store, New Albany DVD, reopen.

    Judge Barker "asked the lawyers to file their closing arguments by Monday and their responses to each others' arguments by Wednesday, saying her decision would be 'timely.'"

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Courts

    Indiana Law - Upcoming Indiana government efficiency report awaited

    I've seen several stories now on reports of various subcommittees of the Indiana Government Efficiency Commission and can't wait to see the actual documents. When available, I will of course post links here. An AP story today by Mike Smith reports on the subcommittee on general government. Some quotes:

    State government has evolved into a "bewildering array" of agencies and programs and is an "unmanageable organization" that needs radical changes if significant savings are to be found, a commission has concluded.

    The Government Efficiency Commission's subcommittee on general government also said that state employees, many of them dedicated public servants, were immersed in a culture resistant to change that "can be traced to fear and ignorance of the unknown."

    "Changing this culture is a key necessity to making state government more efficient, less costly and affordable within the resources available to our state for the foreseeable future," Steve Baranyk, a business management consultant and chairman of the subcommittee, wrote in a report.

    The panel said the legislative and executive branches should immediately restructure government to make it effective and manageable. * * * The commission did not plan to publicize its findings about general government until Monday, but The Associated Press obtained a copy of the report beforehand. * * *

    "The executive branch of our state government currently consists of a bewildering array of agencies, departments, commissions, programs and other functions, all of which constitute, in the mind of this writer, an unmanageable organization," Baranyk said in the report.

    The report said the prevailing attitude was that government was not a business and should not be run like one. Because of that, "no serious effort is made to measure the many functions of state government and suggestions to do so are met with a combination of skepticism and disinterest."

    The group said it may be possible to shave "some expenses here and there" within the current structure and environment. But it would take radical changes if the goal is to significantly reduce the state's $830 million budget deficit, it said.

    "These savings are not available by `counting paperclips, pencils and pads of paper,' but rather by cutting what many currently ... consider to be `bone and muscle' items in the budget," the report said.

    Smith also has a brief story today on Indiana Government Efficiency Commission's subcommittee on higher education. There are to be four reports in total: Kindergarten through 12th grade, higher education, general government and Medicaid and human services.

    [More] Here is the story from today's Indianapolis Star, headlined "Searching for savings, panel finds a quagmire: State spending poorly tracked, hard to fix."A panel that's been working for months on ways to streamline Indiana state government says an impenetrable bureaucracy makes recommendations almost impossible, according to a report scheduled for release next week.

    Even the most basic financial information on state spending is too sketchy to allow many conclusions, according to the Indiana Government Efficiency Commission. * * *

    Indiana has long operated state government on the cheap when it comes to tracking state spending. Detailed and timely information about who pays state taxes is notoriously hard to come by. Despite how much rides on changes in property tax policy, just a handful of state employees are able to work with property tax data.

    Baranyk, a private management consultant from Carmel, said the problems go beyond a single party or a single administration. "It's happened over many, many decades." His subcommittee did find some disturbing trends. Spending on prison inmates rose by 8.2 percent a year while the prison population grew by 4.5 percent. As a result, the panel will recommend accelerating the release of inmates who no longer pose a threat to the public.

    The panel also questions whether spending $27 million last year on disability and workers' compensation payments to state employees might be excessive. But the group found that without a radical overhaul, achieving major cost savings in state government isn't possible.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Law

    Law - Gay-marriage defeat puts legal arrangements in question

    "Gay-marriage defeat puts legal arrangements in question" is the headline to a story today in the Louisville Courier-Journal. Some quotes:

    The amendment approved by Kentucky voters last week states "that only a marriage between one man and one woman shall be a marriage in Kentucky, and that a legal status identical to or similar to marriage for unmarried individuals shall not be valid or recognized." * * *

    Married couples receive a variety of legal rights automatically more than 1,000, according to the Human Rights Campaign, a gay-rights organization. Such rights entitle spouses to file taxes together, visit each other in the hospital, sign up for benefits, and make medical and burial decisions for each other.

    About 30 years ago, unmarried couples same-sex and heterosexual began seeking some of those rights, said University of Louisville law professor Robert Stenger, who teaches constitutional and family law. They have used a variety of legal tools, including contracts, trusts and wills, which spell out some of those rights.

    Such agreements become particularly important when the relationship ends. "If you had people who lived (together) and were financially interdependent for some time, and at the end one person ends up with all the marbles, ... courts could come along and say there was some contract to the contrary," he said.

    Still, contracts cannot match all of the rights that come with a marriage license. For example, one unmarried partner cannot sue over the wrongful death of the other. And if one unmarried partner in a relationship dies, the other cannot receive Social Security payments as a survivor, no matter how long they lived together.

    Callahan, a professor of philosophy and director of the women's studies department at the University of Kentucky, also noted that she cannot put Crossen on a health insurance plan through the university. No Kentucky public university nor any local government agency in the state has offered such benefits to unmarried partners of employees. And all sides agree the amendment shuts that door for the future, although private companies could offer such benefits.

    Many gays and lesbians, meanwhile, say they fear the amendment is a first step toward eroding other rights. "When you scapegoat a group, you never quite know where it's going to end up," said Sue Strong of Lexington, citing President Bush's plans to push for a federal amendment banning same-sex marriage.

    A story last month in the Columbus Dispatch reported that Ohio's constitutional prohibition(which was adopted Nov. 2):
    * * * would add some of the farthest-reaching legal limits in the country to the state constitution. Like voters in 10 other states, Ohioans will consider a proposal, in this case State Issue 1, to restrict marriage to a union between one man and one woman.

    It says: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions." What sets Ohios amendment apart is the second sentence.

    "This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

    Opponents contend the second sentence will have a negative impact on unmarried heterosexual couples, for instance, prohibiting a person from obtaining power of attorney to help an ill or incompetent partner, from having visiting rights in hospitals, and even from obtaining orders of protection in domestic disputes.

    No proposal in the other states with issues on the ballot, or in six states that previously approved similar constitutional amendments, contains such specific limits, according to a review by The Dispatch.

    "Ohios amendment is far and away the most extreme of any of the amendments being proposed," said Alan Melamed, of Ohioans Protecting the Constitution, a coalition of gay, business and labor groups that oppose the issue. "The only thing that approaches it is what the Virginia legislature passed earlier this year."

    Virginias Affirmation of Marriage Act, which took effect July 1, was approved despite objections from Democratic Gov. Mark R. Warner. Gay activists labeled it the most restrictive in the nation. It is not a constitutional amendment, but rather a legislative enactment.

    The law says, in part, "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited." It also says civil unions, contracts and arrangements from other states are void in Virginia.

    An AP story from Nov. 3 reported:
    COLUMBUS -- Ohioans on Tuesday backed up the nation's toughest law banning gay marriage with an even broader constitutional amendment against civil unions.

    Issue 1 bans same-sex marriage under the Ohio Constitution and prohibits state and local governments from granting legal status to unmarried couples of either sex. The amendment, the only statewide issue on the ballot, gathered equal support from men and women, blacks and whites, according to a statistical analysis from voter interviews.

    With 37 percent of precincts reporting, 1,284,153, or 63 percent, supported the measure, while 767,604, or 37 percent, opposed it. * * *

    See also this column by Thomas Oliphant in the Boston Globe and this transcript from an interview this week on the PBS program "The NewsHour with Jim Lehrer." (Thanks to How Appealing for these last two links.)

    [More] See this Adam Liptak article in the Nov. 12th Washington Post, headlined "Caution in Court for Gay Rights Groups."

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to General Law Related

    Indiana Law - Another voting machine problem reported

    "Misread ballots may alter races: Straight Democrat votes were tallied for Libertarian ones" was the report yesterday in the Richmond Palladium-Item. Some quotes:

    BROOKVILLE, Ind. -- Election equipment counted straight-party votes for Democratic candidates as Libertarian votes, an error that could affect election outcomes in as many as nine counties.

    Democrats discovered the error in Franklin County, where ballots will be counted again tonight.

    The county's election equipment vendor, Fidlar, notified officials Wednesday of the error.

    Libertarian candidates received 7 to 8 percent of the votes in Franklin County, which is about 30 miles south of Richmond.

    Franklin County Democratic Chairman Jim Sauerland questioned Clerk Marlene Flashpohler on Tuesday about the results after seeing information on the final tally he couldn't decipher, Flashpohler said. That's when Flashpohler contacted Fidlar, who agreed Wednesday there was an error.

    The Franklin County Election Board agreed at an emergency meeting today to recanvass the ballots tonight. Noon Friday is the deadline to contest the election results.

    The Indianapolis Star also reports the story in today's paper. A quote:
    A programming error discovered in voting machines has triggered a recount of the Nov. 2 election results in Franklin County in southeastern Indiana.

    A Democratic official, whose party was shortchanged in the mistake, said the only change in the results might come in a County Council race. State officials are investigating.

    "The Indiana Election Division is aware of the problem," said Kate Shepherd, spokeswoman for the agency. "We are awaiting more information from the county and the vendor about what exactly happened."

    The error caused votes for a straight Democratic ticket in Franklin County -- selecting all Democratic candidates -- to credit Libertarian candidates instead.

    The mistake was in the programming of optical-scan voting machines sold by Fidlar Election Co., Rock Island, Ill. John Kruszynski, the company's director of elections, said only Franklin County was affected. * * *

    The company's optical-scan machines are also used in Benton, Elkhart, Fulton, LaGrange, Newton, Ripley, Scott, Steuben and Switzerland counties, according to the Indiana Election Division. Kruszynski said there were no programming mistakes with the company's machines elsewhere in Indiana, or in the half-dozen other states where Fidlar has contracts.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Law

    Indiana Law - Governor-elect Daniels seeks info from state agencies

    The Evansville CourierPress had a story yesterday detailing the information requests sent out to state agencies. Some quotes:

    Gov.-elect Mitch Daniels' transition team has sent out letters to 30 state agencies, requesting information on their operations.

    While some of the requests are standard, others appear to point to suspicions of ongoing problems. Other questions hint at potential tax changes to boost revenue to plug an estimated $800 million budget gap.

    The letters, all dated Nov. 5 and sent by Harry Gonso, director of the transition team, asked state agency heads to provide information on a list of questions within six days. The letters have several common questions, such as wanting to know about all pending contracts and lawsuits against an agency, all information requests under the public access rules for the past 12 months and about any ongoing audits or staff changes. They also asked agency heads for all correspondence in the last year between staffers and lawmakers and state elected officials.

    But some agencies were asked specific, individualized questions that appear to point toward suspected problems. These requests including asking:

    The Public Employees Retirement Fund for a list of any staff "suspected but not prosecuted for theft" and for a list of "any additional money management issues." An earlier scandal led to criminal convictions for two employees. One admitted to stealing funds and both admitting to stealing identities. * * *

    There is much more to the story. All looks pretty standard and prudent. I was, however, intrigued by "all information requests under the public access rules for the past 12 months."

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to Indiana Law

    Law - Schwarzenegger administration requires employees to show up for work

    "Nineteen political appointees to four workplace-issues boards are ordered to show up for work at offices. Many are crying foul." That was the headline to this story yesterday in the LA Times. Some quotes:

    SACRAMENTO A group of highly paid state employees is upset about a new Schwarzenegger administration edict demanding that they show up for work from 9 to 5 at their offices.

    The employees in question, all of whom earn $100,000 a year or more, are political appointees on four obscure but influential state boards that govern workplace issues for everyone else in the state. * * *

    The Republican administration believes many of the appointees are failing to do their jobs effectively. One board has a two-year backlog of work; another has 8,000 cases awaiting review. The boards handle thousands of appeals from people seeking workers' compensation and unemployment insurance payments, workplace safety complaints and labor issues involving farmworkers.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to General Law Related

    Law - Federal courts approach financial crisis

    A story from the National Law Journal reports:

    [C]ourt scholars and others believe a funding crisis, unprecedented in the last two decades, will result in fundamental alterations in the nation's justice system in another two years if left unresolved by Congress.

    "If we have to make major reductions in staff in fiscal 2005, we will have some parts of the country where we can't provide all of the services we need to provide," said Chief Judge Carolyn Dineen King of the 5th U.S. Circuit Court of Appeals, who chairs the executive committee of the Judicial Conference of the United States. "For sure it will happen throughout the country if we have to do it in the following year. "We are at a very difficult pass, I would say," she added.

    At a difficult pass and in a holding pattern. When Congress recessed this month for the election, it had yet to enact a budget for the judiciary and a number of other federal agencies and departments. It left in place a continuing resolution that funds them through Nov. 20. (Fiscal year 2005 actually began Oct. 1.)

    While the courts say they have been underfunded in the last four years, what is particularly worrisome this year is that Congress is considering a hard freeze: appropriations for all nondefense, nonhomeland security operations would be frozen at fiscal year 2004 levels.

    If that happens, wrote Chief Judge John W. Sedwick of the U.S. District Court for the District of Alaska in a letter to the Senate's Appropriation Committee chairman, the courts, which already stand "on the brink of a fiscal abyss" will "plunge over the precipice."

    Under a hard freeze, the judiciary estimates it would have to fire or furlough 2,200 to 5,000 full-time employees-almost 20 percent of probation officers and clerks' office staff-and make a 50 percent cut in court operations costs. Money to pay attorneys who represent indigent criminal defendants under the Criminal Justice Act would run out next June, and money for jury fees would be exhausted in July.

    Posted by Marcia Oddi on Friday, November 12, 2004
    Posted to General Law Related

    Thursday, November 11, 2004

    Indiana Decisions - Yesterday's Blakely-related arguments before the Indiana Supreme Court

    Yesterday morning the Indiana Supreme Court heard oral arguments in two cases: Bruce Grant Heath v. State, and Adolphe Smylie v. State, with the focus being on the impact of the U.S. Supreme Court's decision in Blakely v. Washington on Indiana sentencing. See this entry from Monday for links to the now-vacated Court of Appeals rulings. Watch the oral arguments here.

    For extensive coverage of the cases, including the briefs, see Bloomington attorney Michael Ausbrook's blog, INCOURTS. See particularly the entry titled "First Words about the Argument."

    The only newspaper report I've found so far of yesterday's arguments is this good writeup by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:

    INDIANAPOLIS Indianas five Supreme Court justices heard arguments Wednesday in a relatively small Noble County criminal case that could have broad implications for the states sentencing rules.

    Often letting lawyers go beyond their allowed time limits to answer questions, it was clear the case was both important and complex.

    There are so many questions its hard to know where to start, Justice Frank Sullivan Jr. said.

    The debate centers on a U.S. Supreme Court decision Blakely v. Washington handed down in June that found a 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.

    Posted by Marcia Oddi on Thursday, November 11, 2004
    Posted to Indiana Decisions

    Environment - Lead in the news

    As readers may recall, the 45 blocks Jacobsville neighborhood in Evansville was listed b EPA as a proposed Superfund site last March (see ILB entry here). And in late July EPA placed the site on is National Priorities List (see this 7/23/04 ILB entry, last item).

    Yesterday the Evansville Courier-Press reported that:

    Nearly 300 residential and commercial property owners in the heart of Evansville will be receiving letters this week seeking permission to test the soil there for lead contamination.

    The letters are part of the U.S. Environmental Protection Agency's first steps towards cleaning up lead contamination in the Jacobsville neighborhood. New sampling will take place during the week of Nov. 29-Dec. 3 to determine how much more contamination may exist. * * *

    In July, the agency put roughly 250 acres in that neighborhood on its National Priorities List of hazardous waste sites. The area joined 1,245 sites and 56 proposed sites all waiting for cleanup.

    The area is approximately bordered by Lloyd Expressway to the south, Iowa Street to the north, Edgar Street to the west and Heidelbach Avenue to the east. The Indiana Department of Environmental Management first discovered lead contamination after an emergency cleanup of the former Evansville Plating Works site on West Indiana Street, when environmental investigators examined an area near the site and discovered it.

    However, the plating works is not believed to be the source of the contamination. Instead, historical research by state and federal environmental officials revealed a succession of at least four long-defunct companies is believed to have emitted lead dust that contaminated the neighborhood's soil.

    At issue now, EPA officials said during a Wednesday morning press conference with Evansville Mayor Jonathan Weinzapfel at Central United Methodist Church, is how far out from the area does significant lead contamination reach.

    An EPA press release yesterday contains additional information, including:
    At least four long-closed businesses likely contributed lead contamination to the area: Blount Plow Works (horse-drawn plows; c. 1880s to 1940s), Advance Stove Works (stoves; c. 1900 to 1950s), Newton-Kelsay (draft animal harness parts; c. 1900 to 1950s) and Sharpes Shot Works (lead shot; c. 1878 to unknown date).
    Another set of recent stories involves Indiana's 9 recent and unsuccessful applications for HUD grants. The Fort Wayne Journal Gazette reported this week:
    The U.S. Department of Housing and Urban Development has begun an investigation into the process used to award $168 million in grants this year for lead hazard control, reduction and awareness, a national health advocacy group said Monday. * * *

    The probe is being conducted by HUDs inspector general office at the request of the Washington, D.C.-based Alliance for Healthy Homes, alliance executive director Don Ryan said. * * * Ryan called HUDs grant-awarding process this year slap-dash, and said it is an unprecedented, stunning breakdown in the competitive grant-making process. It is an egregious breakdown.

    A parallel series of complaints has been issued by Tom Neltner, director of Indianapolis-based Improving Kids Environment, another advocacy organization.

    In a letter to Sen. Richard Lugar, R-Ind., last month, Neltner questioned why at least nine Indiana agencies, cities or counties were shut out in their bid for $12 million in HUD money, especially when Indiana has developed a comprehensive statewide lead eradication plan that has been approved by the Centers for Disease Control and Prevention.

    An AP story today, headlined "Plan to fight lead poisoning faces trouble: Advocates fear budget shortage," reports:
    Activists who have pushed Indiana for years to do more to prevent lead poisoning in children are hoping the state's first comprehensive plan targeting the toxic hazard can spare thousands of Hoosier children brain damage.

    The plan, approved by the Centers for Disease Control and Prevention in June, is Indiana's response to the federal agency's goal of eliminating lead poisoning in children by 2010, in part through remediation efforts.

    However, even as state officials work to implement their plan, advocates for the primary victims of lead poisoning poor children living in housing with lead-based paint are concerned there will not be enough funding to meet the plan's ambitious goals.

    This fall the Department of Housing and Urban Development rejected the federal grant proposals of nine Indiana organizations seeking money for lead hazard control.

    Posted by Marcia Oddi on Thursday, November 11, 2004
    Posted to Environment

    Wednesday, November 10, 2004

    Indiana Law - New FSSA website includes a number of features

    The Boonville Indiana Tristate-Media site has a story available here headlined "Deadbeat parents will be shown on FSSA website." Some quotes:

    The Family and Social Services Administration (FSSA) unveiled the new Indiana Child Support Enforcement website featuring photos of parents who are seriously delinquent in paying support and a payment history tool to help parents know when support payments have been made and received.

    The new website, www.in.gov/fssa/children/support, features information on parents who county prosecutors have identified as Indiana's most wanted child support evaders. The site also has an anonymous tip line, 1-866-926-8332, and e-mail address that allow citizens to report information regarding the whereabouts, employment, assets, and property owned by delinquent parents. The information will be forwarded to county prosecutors to aid in enforcement proceedings.

    "The new site strengthens Indiana's child support collection efforts and makes payment tracking easier for parents," said Cheryl Sullivan, Secretary of the Family and Social Services Administration. "The online features also will serve as a deterrent to those who would not follow court orders."

    Features include a payment history option that will help both custodial and non-custodial parents. This function lets custodial parents see when payments have been made. It also allows non-custodial parents to verify that child support payments were made either by them or by their employer.

    "The payment history option will provide both custodial and non-custodial parents with a secure and convenient way to access payment information 24 hours a day," said Karla Mantia, Deputy Director of Child Support for FSSA's Division of Family and Children.

    There also are online services for employers allowing them to make electronic payments from employees with court-ordered withholding orders. Paying child support electronically is a legal requirement for all businesses with 50 or more employees and more than one employee who owes support. The website also allows businesses to easily report new hire information to the Indiana New Hire Reporting Center, another obligation required by Indiana law.

    The FSSA Child Support site is available here. The links in the right column include the "Most Wanted Child Support Evaders."

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Indiana Law

    Environment - Stories today

    Updating its earlier story (see this 10/30/04 ILB entry), the Washington Post reports today, in a story headlined "EPA Suspends Study on Kids And Pesticides," that:

    The Environmental Protection Agency has suspended a controversial study aimed at exploring how infants and toddlers absorb pesticides and other household chemicals, officials said yesterday.

    Several rank-and-file EPA scientists had questioned the ethics of the two-year experiment, which would have given the families of 60 children in Duval County, Fla., $970 each as well as a camcorder and children's clothing in exchange for having the children participate. The critics said low-income Floridians might continue to use pesticides -- which have been linked to neurological damage in children -- in their homes to qualify for the project.

    Environmentalists had also criticized the study because the industry-funded American Chemistry Council had agreed to pay $2 million of the project's approximately $9 million cost.

    EPA spokeswoman Cynthia Bergman said officials had asked a group of independent experts to reexamine the study design, which has already been reviewed by several independent panels of academics, officials of the Centers for Disease Control and Prevention, and representatives of the Duval County Health Department. The new panel is set to give the EPA its assessment next spring.

    The LA Times has a story today headlined "Environment Officials See a Chance to Shape Regulations: With reelection of Bush, EPA plans to promote a pro-industry agenda. Critics fear an overhaul of decades-old protections." The article begins:
    Emboldened by President Bush's victory, the nation's top environmental officials are claiming a broad mandate to refashion the regulation of air and water pollution and wildlife protection in ways that will promote energy production and economic development.

    "The election was a validation of the philosophy and the agenda," said Mike Leavitt, administrator of the Environmental Protection Agency. Environmental protections, he said, must be done "in a way that maintains the economic competitiveness of the country."

    Leavitt pointed out that four more years give administration officials an opportunity to mold the environmental agency's professional staffs to more closely reflect their priorities. Leavitt said 35% of the EPA's staff would become eligible to retire in the next four years, giving him a chance to remake from the inside out the agency that takes the lead in enforcing air and water pollution and the cleanup of toxic dumps.

    Administration officials spoke of a renewed commitment to long-standing priorities. For example, James Connaughton, chairman of the White House Council on Environmental Quality, said President Bush would not reconsider regulating carbon dioxide emissions despite scientific alarm over global warming because such a policy would hurt the domestic coal industry and send jobs overseas.

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Environment

    Indiana Decisions - Four today from Court of Appeals

    China Ann Long v. Phillip Barrett, et al (11/10/04 IndCtApp) [Torts]
    Darden, Judge

    China A. Long ("Long") appeals the trial court's order granting summary judgment to Phillip Barrett, Richard Davidson, John K. White and Deena Pattingill (collectively, "the defendants") on Long's amended complaint, which alleged that each was individually liable for having falsely arrested and falsely imprisoned her and being negligent. We affirm. * * *
    SHARPNACK, J., concurs.
    ROBB, J., concurs with separate opinion.
    City of Vincennes v. Kevin Emmons d/b/a Cherokee Rentals, et al (11/10/04 IndCtApp) [Constitutional Law]
    Robb, Judge
    The City of Vincennes (the City) appeals from the trial courts order finding the Vincennes Rental Housing Code (the housing code) unconstitutional in an action by the City against landlords Kevin Emmons, doing business as Cherokee Rentals, Eric Klein, and Jeffrey Hendrixson See footnote (the Landlords) for failure to pay landlord registration fees in violation of the housing code. We affirm. * * *

    The housing code at issue herein does not expressly state that the Landlords consent to an inspection is a required condition of being granted an occupancy permit; however, neither does it include a warrant procedure in the absence of the Landlords consent. The housing code only provides a warrant procedure if the tenant refuses to consent to the search. The housing code thus implies that the Landlord has consented to an inspection merely by applying for an occupancy permit and has no right to refuse. In order to satisfy the requirements of Camara and thus pass muster under the Fourth Amendment, the housing code must give the Landlords the option to consent and include a warrant procedure to be followed in the event the Landlords refuse to consent to a search. It does not, and it is therefore unconstitutional on its face. * * *

    Conclusion. The Landlords, whose interests are at issue, do have standing to raise the constitutionality of the housing code. Because the housing code fails to provide a warrant procedure when landlords refuse to give consent to an inspection, that provision of the housing code is unconstitutional on its face, and because the inspection provision is not distinctly separable from the remainder of the housing code, the trial court did not err in declaring the housing code as a whole unconstitutional. The trial courts order is therefore affirmed. Affirmed.
    SHARPNACK, J., and DARDEN, J., concur.

    Indiana Farmers Mutual Insurance Company v. Richard Imel, et al (11/10/04 IndCtApp) [Insurance]
    Riley, Judge
    * * * Indiana Farmers raises two issues on appeal, which we consolidate and restate as the following issue: whether the trial court erred in concluding that the residency requirement contained in the liability coverage exclusion provision of Indiana Farmers insurance policy applies only to a policyholders relatives and not to persons in the policyholders care or persons in the care of the policyholders relatives. * * *

    Therefore, based on the clear and unambiguous language of the insurance policy, we conclude that there are no genuine issues of material fact. See American Family Mut. Ins. Co., 764 N.E.2d at 783. Viewing all the evidence before us, we find that A.T. is not a resident of Imels household, even though he was in Imels care at the time of the accident. Accordingly, A.T.s bodily injuries are not excluded from coverage under the liability provisions of Indiana Farmers policy. Consequently, the trial court did not err by denying Indiana Farmers motion for partial summary judgment and granting Smiths and Imels motion for summary judgment.

    Conclusion. Based on the foregoing, we conclude that the trial court properly granted summary judgment as a matter of law in favor of Smith and Imel and denied Indiana Farmers motion for partial summary judgment. Affirmed.
    CRONE, J., and VAIDIK, J., concur.

    Jason Traylor v. State of Indiana (11/10/04 IndCtApp) [Criminal Law & Procedure]
    Robb, Judge
    Jason Traylor was found guilty by a jury and convicted of dealing (manufacturing) in methamphetamine over three grams, a Class A felony, possession of methamphetamine over three grams, a Class C felony, and visiting a common nuisance, a Class B misdemeanor. The trial court sentenced him to forty years for the Class A felony conviction, six years for the Class C felony conviction, and 180 days for the Class B misdemeanor, sentences to be served concurrently. Traylor appeals his convictions and sentences. We affirm in part and remand. * * *

    Traylor was sentenced to an enhanced term of forty years for the Class A felony conviction and an enhanced term of six years for the Class C felony conviction. In enhancing Traylors sentences, the trial court found the following aggravating circumstances: (1) there is a great risk that Traylor will commit another crime; (2) the particularized nature and circumstances of the crime committed; (3) Traylors prior criminal history; (4) Traylors character; and (5) Traylor is in need of correctional and rehabilitative treatment that can best be provided by commitment to a penal facility.

    Under Apprendi, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490 (emphasis added). Because the aggravating circumstances upon which the trial court enhanced Traylors sentences were not submitted to a jury and proved beyond a reasonable doubt, under Apprendi, only Traylors prior criminal convictions could be used by the trial court to enhance Traylors sentences in this case.

    Traylor contends, however, that it was improper for the trial court to enhance his sentences based on his prior criminal history. We agree. Traylors prior criminal history consists of one misdemeanor conviction in 1998 for battery. The trial court noted that it found this to be an aggravating factor of minimal weight. A misdemeanor battery conviction nearly five years before the instant offenses, standing alone, is insufficient to enhance Traylors sentences. See, e.g., Newsome v. State, 797 N.E.2d 293, 300 (Ind. Ct. App. 2003), trans. denied (stating that a criminal history that consisted of three fairly recent misdemeanor convictions, two of which were for battery, would not be sufficient, standing alone, to enhance a defendants sentence); Westmoreland v. State, 787 N.E.2d 1005, 1010 (Ind. Ct. App. 2003) (concluding that a criminal history comprised of misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for criminal deviate conduct.); Watson v. State, 784 N.E.2d 515, 523 (Ind. Ct. App. 2003) (holding a criminal history comprised of two, nonviolent misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for battery.). Therefore, we vacate Traylors sentences for his Class A felony conviction and his Class C felony conviction, and we remand this cause to the trial court for further proceedings consistent with this opinion.[ftnote] * * *

    Conclusion. The trial court did not err in admitting evidence of items found at the Erlingers property, and Traylor was not denied his right to present a defense. Furthermore, the State presented sufficient evidence to sustain Traylors convictions. The trial court did not err in revoking Traylors bond prior to a hearing. However, because Blakely controls the outcome of this case, and because the trial court erred in failing to assess Traylors ability to pay the $1,000 drug fee imposed and in withholding Traylors cash bond, we remand this cause to the trial court for proceedings consistent with this opinion. Affirmed in part and remanded.
    SHARPNACK, J., and DARDEN, J., concur.
    ________
    *We note that in Carson v. State, 813 N.E.2d 1187 (Ind. Ct. App. 2004), a panel of this court held a trial court did not err, under Apprendi/Blakely, in enhancing a defendants sentence, based on the following aggravating circumstances: prior criminal history; a need for corrective or rehabilitative treatment best provided by commitment to a penal facility; and the strong likelihood that the defendant would commit another crime. Id. at 1189. After stating that prior criminal convictions are exempt from the requirement of jury findings under Apprendi, the panel held the other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. Id. at 1189. Because we hold Traylors one misdemeanor criminal conviction five years ago is not a proper aggravator to enhance his sentence, any circumstances that may or may not derive from his prior criminal history also are not proper aggravators to enhance Traylors sentences.

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Indiana Decisions

    Indiana Law - LaPlante Concedes House District 46 Election

    The Nov. 5th Indiana Law Blog entry, titled "Is the jury still out on District 46? Who is the jury?" concludes:

    Before the election, it was thought by many that control of the House of Representatives might rest upon which way the District 46 election went. However, even with the apparent loss of Distrct 46, the House returns show it now at 52-48 Republican, making, it would appear, resort to a court appeal or House seating fight less pressing.
    A story today in the Terre Haute Tribune-Star is headlined: "LaPlante concedes District 46: Fighting for seat not important because GOP already controls House, representative says." Some quotes:
    Rep.-elect Vern Tincher will not face a legal challenge to his 734-vote margin of victory in the Indiana House District 46 election.

    His opponent, incumbent Republican Brooks LaPlante, has conceded the election.

    LaPlante called Tincher, D-Riley, about 1 p.m. Tuesday to congratulate Tincher on his victory. LaPlante had until noon Tuesday to file an election challenge in court.

    It was an election that brought several court rulings just weeks before the Nov. 2 vote, as Republicans attempted to place LaPlante on the ballot, while Democrats contested the withdrawal of Jeff Lee, the GOP winner in the primary election.

    LaPlante finally was permitted on the ballot, but only after many absentee ballots already were cast for Republican Jeff Lee. That led to a possible recount of those absentee ballots, which pushed Tincher from a 63-vote margin to the more commanding 734-vote winning margin. LaPlante won by 804 votes in 2002, defeating Tincher. * * *

    The House of Representatives seats its own members and could have opted to claim LaPlante as its candidate. "I personally nixed that and our leadership nixed that because when we discussed options, we looked at the bigger picture. For the House, Election Day is a team event and our team won," LaPlante said.

    While he lost his race, Republicans control the Indiana House 52-48 and winning a 53rd seat became less important as Republicans still have a majority, LaPlante said.

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts one

    Cygan, Lori v. WI Dept Corrections (ED Wis.)

    Before BAUER, MANION, and KANNE, Circuit Judges.
    BAUER, Circuit Judge. After the termination of her employment
    at the Wisconsin Department of Corrections (DOC)
    facility in Green Bay, plaintiff Lori Cygan filed a lawsuit
    against the DOC and various DOC officials under 42 U.S.C.
    1983. Cygan alleged that the defendants violated her
    constitutional rights by firing her in retaliation for exercising
    her First Amendment rights, and by failing to afford her
    due process in connection with the termination. Cygan also
    advanced a state law retaliation claim. The district court
    granted the defendants summary judgment on all three
    theories. Cygan limits her appeal to the district courts
    decision on her First Amendment retaliation claim. We
    affirm.

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Indiana Decisions

    Indiana Law - Keeping up with technology

    "Document scanning worries commission" is the headline to this story today in the Munster Times. Some quotes:

    SCHERERVILLE | The town's police commission wants more information about a growing practice where people are copying police reports using their own scanners.

    Schererville Police Chief Dan Smith asked the commission's attorney, John Bushemi, to provide an opinion on the amount of money people should be charged when they inspect reports, then use a portable scanner to scan documents, rather than asking the department to make them a copy.

    Smith said this practice occurs most often with crash reports, and nearby police departments are experiencing similar requests.

    Bushemi said he likely will recommend that scanning be assessed a fee, and it would continue to be handled in a controlled environment.

    "The public access law allows that whether it's copied by the town or reproduced by other means, a fee can be charged," he said, adding he would suggest officials amend the ordinance to include scanning.

    Fee aside, Commissioner John Fladeland said he had no idea people could come in and scan documents.

    "I can't get used to the idea of someone coming into the department to scan," he said. "No one should be able to do that whether it's in a controlled environment or not. I don't think anyone should be allowed to come into the department and scan documents."

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Indiana Law

    Indiana Law - Vanderburgh County Commissioners vote unanimously to conduct an "independent audit" of the Nov. 2 election results

    The Evansville Courier-Press reports today:

    The Vanderburgh County Commissioners voted unanimously to conduct an "independent audit" of the Nov. 2 election results, following complaints about possible malfunctions of the county's touch-screen voting machines. Reports of breakdowns of the machines and long voter lines that forced some voters to wait up to three hours to cast their ballots set the stage for the decision at Monday's meeting. * * *

    "We need to make sure this equipment was working properly," said commissioners president Catherine Fanello, who last week issued a call for an independent evaluation of the performance of voting equipment used in the election. Fanello cited a series of complaints from election workers and voters, as well as reports around the country of other counties confronting problems with their touch-screen voting machines.Vanderburgh County is leasing the machines under a five-year, $2.9 million agreement.

    Among the complaints Fanello said she'd heard was that the machines, manufactured by Election Systems & Software, malfunctioned for some who tried to cast "straight-party" ballots. Some who cast straight-party Democratic ballots saw their votes show up as votes for the Republican Party. Despite assurances from a company official that the equipment had passed federal standards and had withstood rigorous testing, Fanello said any computer-based technology has the potential to go awry. * * *

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Indiana Law

    Indiana Courts - Video store hearing before Judge Barker

    The Louisville Courier-Journal reports today, in a story headlined "Experts clash in adult-store hearing," that"

    It was a battle of the expert witnesses from California yesterday at a hearing in federal court on whether New Albany should be ordered to let an adult video store reopen.

    After a full day of testimony in Indianapolis, U.S. District Judge Sarah Evans Barker directed the two sides to submit their final arguments in writing by Monday and to respond to each others' arguments by next Wednesday so she can make a decision without delay but she did not specify a date.

    Lawyers for the city said they were pleased with the hearing.

    "We feel we put on the best evidence," said Scott Bergthold, a lawyer from Chattanooga, Tenn., who was representing New Albany. He said the city based its ordinances on rulings by federal appeals courts that upheld cities' rights to regulate adult businesses.

    New Albany DVD's lawyer left before he could be interviewed.

    Posted by Marcia Oddi on Wednesday, November 10, 2004
    Posted to Indiana Courts

    Tuesday, November 09, 2004

    Indiana Decisions - Three today from the Supreme Court

    Richard L. Francis v. State of Indiana (11/9/04 IndSCt) [Criminal Law & Procedure]
    Sullivan, Justice

    Defendant Richard L. Francis was charged with and pled guilty to child molesting. The sentencing court enhanced the presumptive sentence of 30 years applicable here by an additional 20, for a total sentence of 50 years. Finding that Franciss guilty plea and other mitigating circumstances balance the aggravating circumstances, we revise Franciss sentence to the presumptive sentence of 30 years. * * *

    This Court has recognized before that a defendant who willingly enters a plea of guilty has extended a substantial benefit to the state and deserves to have a substantial benefit extended to him in return. Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995) (quoting Williams v. State, 430 N.E.2d 759, 764 (1982), rehg denied, 459 U.S. 808 (1982)). A guilty plea demonstrates a defendant's acceptance of responsibility for the crime and extends a benefit to the State and to the victim or the victim's family by avoiding a full-blown trial. * * * Thus, a defendant who pleads guilty deserves to have mitigating weight extended to the guilty plea in return. * * * We find that the court erred in not considering the guilty plea to be a mitigating circumstance. * * *

    Because we find the guilty plea to be a weighty mitigating circumstance, which, with other mitigating circumstances, balances the aggravating circumstances that the court identified, we conclude that the presumptive sentence of 30 years is the appropriate sentence in light of the nature of this offense and the character of this offender. See Ind. Appellate Rule 7(B).

    Conclusion. We reverse Franciss sentence of 50 years and remand to the sentencing court with instructions to issue an amended sentencing order and to issue or make any other documents or docket entries necessary to impose a sentence of 30 years, without a hearing.

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

    Daniel Boone Collins v. State of Indiana (11/9/04 IndSCt) [Criminal Law & Procedure]
    Sullivan, Justice
    In this case, we resolve a conflict in the Court of Appeals over whether an individual who pleads guilty to an offense in an open plea is entitled to challenge the sentence imposed by means of a petition of post-conviction relief. Following Taylor v. State, 780 N.E.2d 430 (Ind. Ct. App. 2003), trans. denied, 804 N.E.2d 760 (Ind. 2003), we hold that such claims must be raised on direct appeal if at all. We also point out that Ind. Post-Conviction Rule 2 may be available for this purpose. * * *

    A person who pleads guilty is not permitted to challenge the propriety of that conviction on direct appeal. However, a person who pleads guilty is entitled to contest on direct appeal the merits of a trial court's sentencing decision where the trial court has exercised sentencing discretion, i.e., where the sentence is not part offixed by the plea agreement. Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996). (A plea agreement where the issue of sentencing is left to the trial court's discretion is often referred to as an open plea. * * * We will use that terminology in this opinion.)

    We hold that the proper procedure for an individual who has pled guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under P-C. R. 2. Here the post-conviction court should have dismissed the petition for post-conviction relief for lack of jurisdiction without prejudice to any right Collins may have to file a belated notice of appeal under in accordance with the requirements of P-C. R. 2. * * *

    Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

    Warren Gutermuth v. State of Indiana (11/9/04 IndSCt) [Criminal Law & Procedure]
    Sullivan, Justice
    * * * In all relevant respects, Gutermuth's situation is the same as that of the petitioner in Collins. Accordingly, we hold that the post-conviction court should have dismissed the petition for post-conviction relief for lack of jurisdiction without prejudice to any right Gutermuth may have to file a belated notice of appeal in accordance with the requirements of P-C. R. 2. * * *
    Shepard, C.J., and Dickson, Boehm, and Rucker, JJ, concur.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Three from Court of Appeals, one from Tax Court

    Darald Carew v. State of Indiana (11/9/04 IndCtApp) [Criminal Law & Procedure]
    Vaidik, Judge

    Darald W. Carew appeals the denial of his petition for post-conviction relief. Specifically, Carew contends that his appellate counsel was ineffective for failing to challenge on direct appeal the trial courts exclusion of his experts opinion testimony. In particular, if allowed by the trial court, the expert would have opined that the detective used techniques during Carews interview that would increase the likelihood of a false confession from someone with an IQ in the range of Carew. We conclude that Carews appellate counsel was deficient because his decision to forego this issue was not reasonable given the extraordinary efforts of trial counsel to place this very issue before the appellate courts, including coordinating the challenge of this issue with Miller v. Statewhich was a case being tried around the same time as Carews case that involved a similar issueand because this issue was supported by precedent available at the time of Carews direct appeal. We also find that Carews appellate counsels deficient performance prejudiced him because the appellate attorney in Miller v. State raised this issue on direct appeal, and the Indiana Supreme Court reversed Millers convictions and awarded him a new trial. Under these circumstances, we reverse the denial of Carews petition for post-conviction relief and remand this case for a new trial. * * *

    Although this case and Miller are not identical, the issue is substantially the same, which is not surprising considering that Casanova chose to coordinate Carews defense with that of Miller: whether the trial court erred in excluding expert opinion testimony regarding coercive police tactics used in the interrogation of an individual with diminished intellectual functioning. The Miller court, relying extensively on Callis, concluded that the exclusion of such testimony deprived the defendant of the opportunity to present a defense and ordered a new trial. In light of the result in Miller, had OConnor challenged the trial courts exclusion of Dr. Olveras opinion testimony on direct appeal, there is a reasonable probability that Carews convictions would have been reversed. Accordingly, we conclude that OConnors deficient performance prejudiced Carew. Although we rarely find that appellate counsel is ineffective, based on the circumstances present here, we are convinced that this is one such case. We therefore reverse the denial of Carews petition for post-conviction relief and remand this case for a new trial. Reversed.
    MAY, J., concurs.

    SULLIVAN, J., dissents with separate opinion.
    The offer to prove as to Olveras testimony related principally to police interrogation techniques as such techniques would increase the likelihood of a false confession. This is a different issue than whether such techniques would so coerce or intimidate as to make a confession involuntary. To this extent the offer was directed to an opinion of Dr. Olvera which would be inadmissible in evidence. * * *

    The matter of the police interrogation tactics and technique were before the court and the jury, as was Carews IQ as testified to by Dr. Olvera. OConnor was justified in concluding that those factors would carry the day as to the permissible inference which could be drawn by the jury as to voluntariness. He also made a reasonable strategic decision not to cloud up the voluntariness issue by Olveras proffered testimony which focused upon whether the confession was likely to be false rather than whether it was involuntary. He very specifically noted the distinction between an involuntary and a false confession.
    I would affirm the denial of post-conviction relief.

    Teresa Teeters v. State of Indiana (11/9/04 IndCtApp) [Criminal Law & Procedure]
    Vaidik, Judge
    Teresa Teeters appeals her conviction for battery while armed with a deadly weapon. She contends that the evidence is insufficient to support her conviction and that her sentence is inappropriate. Because the evidence in support of her conviction is sufficient and the sentence is appropriate and not in violation of the United States Supreme Courts decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), rehg denied, we affirm. * * *

    Thus, the only problematic aggravatorproblematic only in the sense that it was neither proven beyond a reasonable doubt nor admitted by the defendantis that Teeters was on probation at the time of the offense. Ultimately we do not need to resolve this because a single aggravating circumstance is adequate to justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002), rehg denied. In the end, even if our supreme court did find that Indianas sentencing scheme violates the Sixth Amendment as interpreted in Blakely, such finding would have no effect on Teeters sentence. * * *
    Affirmed.
    SULLIVAN, J., and MAY, J., concur.

    Mae Belle Lane v. St. Joseph's Regional Medical Center (11/9/04 IndCtApp) [Torts]
    Sulllivan, Judge
    [Here the plaintiff was attacked while sitting in the waiting room by another person in the waiting room of St. Josephs Regional Medical Center.] * * * To recover under the tort of negligence, a plaintiff must establish three elements: (1) a duty on the part of the defendant owed to the plaintiff, (2) a breach of that duty, and (3) an injury to the plaintiff proximately caused by the breach.

    Much of the argument presented to the trial court during the summary judgment proceedings focused upon whether the Center owed a duty to Lane to protect her from the criminal acts of a third party. Specifically, the parties focused upon whether the actions of D.G. were foreseeable, so that a duty arose on the part of the Center. The trial court concluded that the criminal actions of D.G. were not foreseeable, and thus, the Center owed no duty to Lane to protect her from D.G.

    Since the time that the trial court granted summary judgment, our Supreme Court addressed the question of under what circumstances a business owes a duty to an invitee to protect her from the criminal acts of a third person. * * *

    Turning now to the facts before us, we must decide whether a well-settled duty exists such that the hospital was required to maintain security for the protection of its patients, or whether we must look to the totality of the circumstances to determine whether a duty should exist. As noted earlier, it is not clear how our Supreme Court reached the conclusion that the existence of a duty was well-settled in Bartolini. However, as noted above, our reading of Bartolini leads to the conclusion that the existence of a duty is well-settled when one would expect that a criminal act of a third party is likely to occur upon the premises.
    There can be little dispute that a hospitals emergency room can be the scene of violent and criminal behavior. * * *

    Thus, the Center had the duty to implement and maintain reasonable measures to protect emergency room patients from criminal acts of third parties. See footnote Consequently, the trial courts conclusion that no duty existed and that summary judgment was proper upon that ground is erroneous.

    We thus turn our attention to the issue presented by the Center. Specifically, were the Centers actions or inactions the proximate cause of Lanes injury? * * *

    The evidence which was designated to the trial court reveals that Lane testified in her deposition that she was surprised when D.G. began to hit her. Her son-in-law testified that he too was surprised and that they did not know what set off the attack. Given that the designated evidence in this case depicts a situation in which the attack upon Lane by D.G. was unexpected and that no other evidence was designated to the trial court from which it could have concluded that the specific actions of D.G. on the day in question were foreseeable, we are bound to conclude that the attack and injury was not foreseeable, that the Centers actions were not the proximate cause of Lanes injuries, and that the Center is entitled to judgment as a matter of law.
    Summary judgment in favor of the Center is affirmed.
    MAY, J., concurs.

    VAIDIK, J., concurs in part and dissents in part with separate opinion.
    I concur that the Center owes a duty of care to Lane but disagree with the reasoning the majority uses to reach this conclusion. I, however, respectfully disagree that the acts of the Center as a matter of law were not the proximate cause of Lanes injuries. * * *

    While evidence was presented that both Lane and her son-in-law were surprised by the attack, this does not establish conclusively that the attack was foreseeable or that it was not. Many acts of violence happen suddenly, and many victims are undoubtedly surprised when they are victimized. Furthermore, it is conceivable that a trained security officer stationed in or near the emergency room would have been able to prevent the attack by picking up on warning signs of an imminent attack or an unstable individual, by springing to action more quickly than a lay bystander, or by deterring potential assailants. The fact that the victim in this case was surprised does not necessarily mean that the attack was unforeseeable to the Center. On the other hand, the fact that the assailant was stopped only by Lanes son-in-law, not a security officer from the Center, does not necessarily mean that the attack was a natural and probable consequence of the failure of the Center to provide security in Lanes proximity. It may be that no security officer or system would have been able to prevent the attack on Lane. In any event, whether the Centers acts proximately caused Lanes injuriesthat is, whether the injury was foreseeable under the circumstancesis a question of fact for the jury. Therefore, I dissent from the majoritys conclusion that summary judgment was appropriate.

    Dante Adams v. State of Indiana, Indiana Dept. of Revenue (11/8/04 IndTaxCt) -NFP [Controlled substance excise tax (CSET)]
    Fisher, J.
    * * * Under the CSETs statutory framework, Adams became liable for the CSET when he took possession of cocaine. On March 23, 1998, when the Department discovered that Adams was in possession of cocaine and had not paid the CSET, it issued an assessment and demand notice for payment of the CSET. It was only after Adams failed to remit payment to the Department, and after the prosecutors office notified the Department that it would not be pursuing criminal charges, that the Department commenced collection proceedings by filing a warrant for collection of tax pursuant to [IC] 6-8.1-5-3. Therefore, until March 31, 1998, when the jeopardy tax warrant was filed, Adams was free to pay the CSET and avoid action to collect the liability by the Department. Thus, the Court concludes that the Department followed the statutory procedures for imposing and collecting the CSET.

    Conclusion. For the aforementioned reasons, the Court AFFIRMS the final determination of the Department.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts one today

    U.S. v. Timothy Stewart (SD Ind., Richard L. Young, Judge)

    Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Timothy Stewart was convicted by
    a jury of armed bank robbery and use of a firearm during a
    crime of violence. He confessed to these crimes, but argues
    that his confession should not have been admitted at trial
    because the police used a two-step interrogation process in
    which Miranda warnings were initially withheld, in
    violation of Miranda as applied in the Supreme Courts
    recent decision in Missouri v. Seibert, ___ U.S. ___, 124
    S.Ct. 2601, 159 L.Ed.2d 643 (2004). He also claims the
    confession was involuntary in light of a promise of leniency
    made by the interrogating officer, and that his trial counsel
    was ineffective in not moving to suppress the confession as
    the fruit of an unlawful arrest. Finally, Stewart argues that
    his trial counsel was ineffective because she did not assert
    a Brady violation or seek a missing evidence instruction
    regarding the partial erasure of a surveillance videotape of
    the robbery.

    We reject Stewarts various ineffective assistance of counsel
    claims and also affirm the district courts conclusion that
    Stewarts confession was not involuntary because of an
    improper police promise. On the present record, however,
    we cannot determine whether the admission of Stewarts confession
    requires reversal under Seibert. We therefore remand
    for further proceedings consistent with this opinion.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to Indiana Decisions

    Indiana Decisions - [Updated] Impact of Apprendi and Blakely on Indiana juries

    The Munster Times has a somewhat confusing story today titled "Jurors gaining more power: Judges lose final say in death cases and maybe more." Some quotes:

    The federal jury had the final say this past week when it decided to sentence Odell Corley to death for killing two people during a bank robbery in The Pines two years ago.

    The same power is now in the hands of local jurors, who are no longer simply called on to make a recommendation to a judge, said Indiana Deputy Attorney General Stephen Creason.

    The power of local jurors could be expanded even further to non-capital cases depending on the outcome of cases to be argued before the Indiana Supreme Court next week, he said. * * *

    The upcoming case before the state Supreme Court could give jurors the responsibility of deciding on aggravating factors used during the sentencing of non-capital cases, Creason said. Sentencing would still be left up to judges in these cases, but their

    Note: I believe he means "this week" -- see this entry from yesterday titled "Oral arguments re application of Blakely to Indiana set for Wednesday." More from the story:
    State law was amended two years ago to give local jurors binding powers to sentence someone to death when that penalty was sought by prosecutors, said Creason. Until that point jurors simply made recommendations to judges, who in turn decided the fate of the individual.

    When juries are unable to agree on a sentence in a capital case, Creason said, the decision is left up to the judge. Sentences involving death or life in prison are only options if the jury has decided there are aggravating factors or conditions which make the crime in question more egregious.

    The constitutionality of this new approach is being challenged with a case pending before the Indiana Supreme Court, said Paula Sites, assistant director of the Indiana Public Defender Council. [See below]

    The attorneys are arguing that it should be left up to jurors to decide on both aggravating factors and the final sentences in capital cases, she said. If jurors can't agree on aggravating factors, the state Supreme Court has ruled there should be a mistrial and a new jury assembled for the sentencing phase of the case.

    I was curious about the case referenced by Ms. Sites, and Michael Ausbrook of INCourts was kind enough to contact her for the information. He reports that she was talking about the rehearing petition* in State v. Charles E. Barker (5/25/04). He writes:
    Barker and Ritchie [Benjamin Ritchie v. State] were companion cases that came down May 25th about Ring [Ring v. Arizona] and whether juries not only have to find aggravating circumstances beyond a reasonable doubt, but also do the weighing of aggravating and mitigating circumstances beyond a reasonable doubt.
    He suggests that:
    [P]eople who want a warm-up for tomorrow go watch the oral argument in Barker especially. * * * The Barker argument, done by Monica Foster for Barker, was on March 4th at 10:30 on the oral arguments page. I'm about to tune in for about the sixth time. It really is something--and it's not all inside baseball.
    _______
    *The rehearing petition is available here, thanks to Mr. Ausbrook.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to Indiana Decisions

    Law - Supreme Court to review taxes on contingent fees

    A story from the National Law Journal reports:

    Although it seems unfair to require taxpayers to pay taxes on lawyer contingency fees paid out of a court award or settlement, the law may not be on their side, some justices suggested during U.S. Supreme Court arguments last week.

    The high court on Nov. 1 took up two consolidated appeals by the government on an issue that has split the circuit courts: whether taxpayers are required to include in their gross income the portion of damages recovery that is used to pay an attorney under a contingency fee agreement. Commissioner of Internal Revenue v. Banks, No. 03-892; Commissioner of Internal Revenue v. Banaitis, No. 03-907. * * *

    Justice Sandra Day O'Connor called "appalling" the situation where a plaintiff may end up paying more in taxes than he or she received in a recovery.

    Here is much more information about these appeals, via the Medill School of Journalism. Links to the lower court opinions are at the end of the entry.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to General Law Related

    Indiana Decisions - More on status of Camm v. State

    As reported in this ILB entry last Friday, quoting from the Louisville Courier-Journal: "The Indiana Supreme Court has refused to review a lower court's decision that overturned the murder convictions of former state trooper David Camm." More today from the LCJ:

    Former state trooper David Camm will be returned to the Floyd County jail this week in preparation for a hearing next Tuesday on whether he should be released.

    The Indiana Supreme Court last week declined to consider a lower court's ruling that overturned Camm's convictions. It is now up to Floyd County Prosecutor Keith Henderson to determine if he will refile the charges against Camm.

    Camm has been serving a 195-year sentence at the Indiana State Prison in Michigan City for the September 2000 shooting deaths of his wife, Kimberly, 35, and their two children 7-year-old Bradley and 5-year-old Jill at their home in Georgetown.

    Yesterday morning, Camm's lawyers filed a motion asking for his immediate release, saying he should not be held because there are no charges against him. They said they also plan to file a motion for a bail hearing in the event the charges are refiled.

    After a meeting with Floyd County Circuit Court Judge J. Terrence Cody and defense lawyer Mike McDaniel, Henderson said he probably will announce his decision on Friday or Monday. * * *

    McDaniel said he and Katharine Liell, the Bloomington lawyer who handled Camm's appeal, will file the motion for the bail hearing. They hope Cody will consider it at next Tuesday's hearing if Henderson refiles the murder charges.

    McDaniel said he also expects to seek a change of venue if charges are filed, perhaps to a city as far away as Evansville or Lawrenceburg outside the Floyd County media market. That would allow for a jury that hasn't been subjected to much publicity about the case.

    Mostly, he said he hopes that Henderson will not refile the charges because the case against Camm is weak, depending heavily on evidence about the cause of blood stains that can be interpreted in different ways.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to Indiana Decisions

    Law - California Ballot Initiative Mandates Broad DNA "Fingerprinting"

    The LA Times reports today:

    Proposition 69, approved by voters 62% to 38%, immediately mandates that a DNA "fingerprint" be taken from all adults and juveniles convicted of a felony, as well as all adults arrested for murder or certain sex offenses whether or not they are convicted. In 2009, the law expands to include any person arrested for a felony or for some misdemeanors, also regardless of a conviction.

    The FBI's national databank, the Combined DNA Index System, or CODIS, now contains about 1.5 million names. If California is able to keep up with its new law, the state could add 1 million new names in a few years.

    The law's provision to take DNA from people who are arrested but not convicted has particularly disturbed civil liberties advocates. Proposition 69 provides a way for people who are exonerated to have their DNA removed from the database, but critics say the method is cumbersome.

    The American Civil Liberties Union is considering going to court to try to block the law, although legal challenges to DNA databases in other states have so far been generally unsuccessful.

    By contrast, the logistical challenges of testing and recording tens of thousands of DNA samples may be more formidable, requiring considerable money and manpower. Although the law will not reach its full scope until 2009, the expansion of the database will begin immediately.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to General Law Related

    Indiana Law - Indiana Parole Board has seen its caseload more than double during the past decade

    Several papers today have this AP story on the caseload pressure facing the Indiana parol board. Some quotes:

    The Indiana Parole Board has seen its caseload more than double during the past decade, though it has gained no new staff to help with decisions about whether inmates should be kept in prison. * * *

    The board held about 2,100 parole violation hearings last year, up from fewer than 900 in 1994. During that time, the state increased the number of parole officers to 72 from 62 but added no staff for the board.

    Posted by Marcia Oddi on Tuesday, November 09, 2004
    Posted to Indiana Law

    Monday, November 08, 2004

    Law - One Internet, Many Copyright Laws

    "One Internet, Many Copyright Laws" is the headline to this economics column today in the NY Times. The length of time before copyrighted material moves into the public domain varies from country to country. A book posted on the web by a resident of a country where the book's copyright has expired may be viewed by readers in a country where the book's copyright period is longer. For instance:

    PROJECT GUTENBERG, the volunteer effort to put the world's literature online, may be the latest victim in the Internet battle over copyright.

    Earlier this year, the Australian affiliate of Project Gutenberg posted the 1936 novel "Gone With the Wind" on its Web site for downloading at no charge. Last week, after an e-mail message was sent to the site by the law firm representing the estate of the book's author, Margaret Mitchell, the hyperlink to the text turned into a "Page Not Found'' dead end.

    At issue is the date when "Gone With the Wind" enters the public domain. In the United States, under an extension of copyright law, "Gone With the Wind'' will not enter the public domain until 2031, 95 years after its original publication.

    But in Australia, as in a handful of other places, the book was free of copyright restrictions in 1999, 50 years after Mitchell's death.

    The case is one more example of the Internet's inherent lack of respect for national borders or, from another view, the world's lack of reckoning for the international nature of the Internet, and it is also an example of the already complicated range of copyright laws.

    The issue of national sovereignty over the Internet has not been firmly established, either by trade agreement or by court precedent, some legal experts say, and conflicts continue to be settled individually. But there are much bigger copyright battles looming as more material, including songs by Elvis Presley and the Beatles, approach public domain in countries around the world.

    Posted by Marcia Oddi on Monday, November 08, 2004
    Posted to General Law Related

    Environment - The NY Times on Bush administration environmental policy in years 5-8

    The NY Times today has an interesting story on the Bush administration's second term as it relates to the environment, titled "G.O.P. Plans to Give Environment Rules a Free-Market Tilt." Some quotes:

    With the elections over, Congress and the Bush administration are moving ahead with ambitious environmental agendas that include revamping signature laws on air pollution and endangered species and reviving a moribund energy bill that would open the Arctic National Wildlife Refuge to energy exploration.

    In addition, the administration intends to accelerate conservation efforts by distributing billions of dollars to private landowners for the preservation of wetlands and wildlife habitats. The White House also plans to announce next month a new effort to clean up the Great Lakes. * * *

    "The election is a validation of our philosophy and agenda," Michael O. Leavitt, administrator of the Environmental Protection Agency, said in an interview. "We will make more progress in less time while maintaining economic competitiveness for the country. That is my mission." * * *

    But with industry groups anticipating relaxed regulations and environmental groups fighting to retain stiff regulations, the environmental debate over the next four years could be contentious.

    "What you're going to see is an administration focused on setting broad goals and then letting states and companies and individuals work to achieve those, within an economic framework," said Charles Wehland, a lawyer for Jones Day in Chicago who represents clients like the OGE Energy Corporation and the Great Lakes Chemical Corporation. But Phil Clapp, president of the National Environmental Trust, a nonprofit group, warned the White House and Congressional leadership that it would be risky to further push the agenda of the last four years.

    "George Bush doesn't have to run again, but Republican lawmakers do," Mr. Clapp said. "They know there is a cost to their political association with rolling back environmental laws."

    Nationally, the environment was a sleeper issue that never awoke. But concern for environmental and conservation issues was sometimes visible at the local level. Montana voters, for instance, rejected an initiative to overturn a ban on a form of mining cyanide, effectively blocking a large new mine on the Blackfoot River.

    Bush administration officials say that among the first measures moving toward enactment will be those that govern air pollution levels. The administration initiative known as Clear Skies, which generated lukewarm support in Congress during Mr. Bush's first term, is about to come out of mothballs. * * * Clear Skies establishes lower emission standards for pollutants like nitrogen oxide, sulfur dioxide and mercury, but environmental groups complain that it does not reduce them as much or as soon as levels set forth in a competing bill or by enforcement of the Clean Air Act. * * * But even if a Clear Skies bill fades again, Mr. Leavitt said he intended to enact its regulatory equivalent, the Clean Air Interstate Rule, a "cap-and-trade" approach to lowering emissions that would set pollution levels for 29 Eastern states and the District of Columbia, by the end of the year. Such approaches allow companies flexibility on how to meet standards, including trading pollution credits. * * *

    Posted by Marcia Oddi on Monday, November 08, 2004
    Posted to Environment

    Indiana Decisions - Oral arguments re application of Blakely to Indiana set for Wednesday

    Don't forget. Two cases raising Blakely v. Washington issues and granted transfer by the Indiana Supreme Court, Bruce Grant Heath v. State, and Adolphe Smylie v. State, are set for oral argument starting at 9 a.m. on Wednesday, Nov. 10th. See these earlier ILB entries: 9/27/04; 10/31/04.

    If you can't make it to the Statehouse on Wednesday to watch the oral arguments in person, you may watch them online at this site.

    Posted by Marcia Oddi on Monday, November 08, 2004
    Posted to Indiana Decisions

    Indiana Decisions - One Court of Appeals decision posted today

    Frederick Moffitt v. State of Indiana (9/23/04 IndCtApp) [Criminal Law & Procedure]
    [Note: The docket shows that on 11/4/04 the Supreme Court denied transfer and on 11/5/04 the Court of Appeals granted Appellee's motion for publication of the hitherto NFP memorandum decision.]
    Bailey, Judge

    * * * On direct appeal, Moffitt raises two issues, which we restate as: [1] Whether the trial court abused its discretion by admitting evidence obtained from an illegal search and seizure; and [2] Whether the trial court erred by allegedly excluding a belatedly disclosed defense witness absent a showing of bad faith on the part of Moffitt and substantial prejudice to the State.

    In addition, on appeal from the denial of his petition for post-conviction relief, Moffett raises two issues, which we restate as: [1] Whether Moffitts guilty plea to the habitual offender count was knowingly made; and [2] Whether Moffitt received effective assistance of trial counsel. * * *

    For the foregoing reasons, we affirm Moffitts convictions for possession of cocaine, possession of marijuana, and resisting law enforcement. Affirmed.
    SHARPNACK, J., and MAY, J., concur.

    Posted by Marcia Oddi on Monday, November 08, 2004
    Posted to Indiana Decisions

    Sunday, November 07, 2004

    Indiana Law - N.D. Indiana prosecutor likely to remain

    The Munster Times reports today:

    Andy Fisher, a spokesman for U.S. Sen. Dick Lugar, also said the 61-year-old [Joseph] Van Bokkelen is likely to remain Northern Indiana's top law enforcement officer. "The expectation is that all our appointees will continue on into President George Bush's second term.

    His office has won the conviction and detention of hundreds of criminals and the distinction of being one of the most aggressive in the country in the prosecution of gun violations.

    However, the highest job expectations he faced when he began three years ago were in the area of public corruption.

    In that time, he has presided over the conviction of 16 elected officials, public figures and politically connected businessmen. Another 13 are either on trial or awaiting trial on a variety of charges of public fraud or its cover-up.

    Van Bokkelen recently promised a "perfect storm" of still more indictments, which have turned Fridays -- the day grand juries usually issue corruption charges -- a painful experience for local officials.

    Had Democratic presidential candidate U.S. Sen. John Kerry won election, Van Bokkelen would have had to resign by year's end and have been replaced by a Democratic appointment. President Bush's re-election Tuesday is likely to dispel any illusions that Van Bokkelen's Operation Restore Public Integrity would be retired.

    Posted by Marcia Oddi on Sunday, November 07, 2004
    Posted to Indiana Law

    Indiana Courts - Indiana attorney sanctions

    The Gary Post-Tribune today has a report on two recent attorney sanctions. Some quotes:

    A Merrillville lawyer who has been under suspension for almost a year by the Supreme Court of Indiana resigned last week from practicing law in the state.

    Martin H. Kinney hasnt been allowed to practice law since December 2003 due to unspecified allegations of misconduct. The case file containing the allegations is sealed, per court order.

    The states high court announced Friday it is dropping any pending disciplinary action against Kinney, who had a law office in Merrillville, because of his resignation. * * *

    In a separate matter, lawyer Zena D. Crenshaws suspension was extended two weeks by the court after she appealed her court costs.

    The Gary lawyer was issued a 30-day suspension in September for misconduct; she was expected to begin the suspension on Oct. 2. The court suspended her after it determined earlier this week her complaints filed in 1997 against Lake County Judge Jeffrey J. Dywan were without merit and unprofessional.

    The Supreme Court's orders in these two cases, plus four others: In the Matter of James David Streit, In the Matter of Cary N. Statfield, In the Matter of Stephen P. Eckert, and In the Matter of Terry R. Boesch, may be accessed here.

    Posted by Marcia Oddi on Sunday, November 07, 2004
    Posted to Indiana Courts

    Indiana Law - Out-of-date information about Indiana General Assembly law

    The Davenport Iowa Quad City Times had a story last Friday about the new 25-25 split in the Iowa Senate, and looked at how other states, including Indiana, had handled such a situation. Some quotes:

    If gridlock aptly described the Iowa General Assembly for the last few litigious years, how can we begin to label the 25-25 partisan split Iowa voters handed to the state Senate?

    How about, opportunity? In the past couple of sessions, Iowa Republicans leveraged a slim legislative majority to muscle through agendas that inevitably collided head-on with a Democratic governor. In two critical cases, the collision wound up before the Iowa Supreme Court. In both cases, the court forced the kind of compromise the Republican majority and Democrat governor should have worked out in the first place, but couldnt.

    Today, in its best light, the split Senate forces compromise to begin now. Not after a court order. Now. Committee leadership has to be settled now. The Senate presidency has to be settled now. Debate protocol? Settle it now. * * *

    The National Conference of State Legislatures has trod this difficult path so many times, it developed a primer, entitled, Legislative Deadlock: What if It Happens to You? This useful guide draws from nearly 40 years of experience from 27 General Assemblies that faced the same problem. Advice includes short term solutions, like Wyomings decision to use a coin toss to break stalemates, to long-term plans, such as in Indiana, where the legislature added a seat to eliminate the possibility of an evenly numbered split.

    Here is the link to the National Conference paper, "Legislative Deadlock: What if It Happens to You?" This paper contains much useful information. However, that about Indiana appears to be out-of-date. Here is what it says:
    After experiencing a partisan split in 1989, the Indiana General Assembly enacted legislation to make sure the House "wouldn't again be hindered by a tie." The House will change to an odd number of members when it redistricts following the 2000 census. Until then, the Indiana statutes provide that the speaker and the principal clerk be chosen by the members of the House affiliated with either the governor's political party or the party of the secretary of state if the governor was not up for election. The law was used to organize the House when it deadlocked in 1996.
    And here is the current Indiana law. First, IC 2-2.1-1-7.5, passed in 1995, remains in effect. It provides that, in the event of a 50-50 split:
    c) The speaker of the house of representatives and the principal clerk of the house of representatives shall be elected by the members of the house of representatives affiliated with the political party whose:
    (1) candidate was elected governor at the previous general election; or
    (2) candidate
    Second, here, at IC 2-1-10, is the current House districting plan, for 100 districts.

    Posted by Marcia Oddi on Sunday, November 07, 2004
    Posted to Indiana Law

    Environment - Recent stories

    A number of Indiana papers this weekend have run this AP story headlined "State in running for coal plants." Some quotes:

    Two utility companies are considering sites in Indiana for new power plants that would use a new, cleaner method to burn coal.

    American Electric Power and Cinergy/PSI both are looking at several states for the new plants, which they say are needed to meet growing electricity demands.

    State utility regulators said they welcomed the companies' interest in cleaner plants.

    "It is good that the companies are looking at their options and looking to the future because of the environmental impact of coal-fired plants," Mary Beth Fisher, spokeswoman for the Indiana Utility Regulatory Commission, told The Indianapolis Star.

    The commission would have to approve the plants, as well as rate increases the companies would seek to pay for them.

    Coal generates more than 95percent of Indiana's electricity.

    Through a method called coal gasification, the new plants can produce less pollution than traditional coal-fired plants. The coal gasification plants heat coal to a gas, removing harmful pollutants before the gas is burned to produce electricity.

    The method removes up to 70 percent more sulfur dioxide and 50percent more mercury, for example, than traditional plants, which remove toxins after the coal is burned, said Angeline Protogere, a spokeswoman for Cincinnati-based Cinergy.

    The Fort Wayne Journal-Gazette today has a lengthy special report titled "Chemical release: Are we truly safe? Area plants store shocking amounts of toxic material." Some quotes:
    Hundreds if not thousands of residents in and around Allen County could be injured in a toxic cloud coming from any of more than a dozen plants that store tons of hazardous chemicals used to fertilize fields, treat sewage and make ice cream.

    In the deepest realm of possibilities, nearly the entire county 330,000 people could be sickened in a catastrophic release of 180,000 pounds of chlorine at Fort Waynes waste treatment plant, according to documents required by the U.S. Environmental Protection Agency that outline worst-case scenarios.

    The LA Times today has a story headlined: "EPA Director Hangs Back on Ordering Mercury Studies: At issue is controlling power-plant pollution. Critics say the agency fears the findings." Some quotes:
    WASHINGTON Despite an earlier promise, the head of the Environmental Protection Agency hasn't yet ordered new studies to help resolve a controversy over controlling mercury emissions.

    The reason, said EPA Administrator Michael O. Leavitt, was that he had doubts about the assumptions the agency made in arriving at its conclusions. He said he was challenging the way the EPA determined how rapidly it could reduce pollution.

    How quickly the government can cut mercury pollution from power plants without causing economic harm is of great interest to the utility industry, public health officials and environmentalists, and has prompted divisions between EPA career staffers and political appointees.

    "This is a big decision and it's one that I very much want to be done properly," Leavitt said in a recent interview. The process, he added, would be "very open, inclusive and rigorous."

    Critics, inside and outside the EPA, said Leavitt's failure thus far to order the studies he promised suggested that the administration was still reluctant to do its own analysis for fear that the results would justify deeper and faster reductions than it favored.

    The Fort Wayne Journal Gazette ran this "open letter"/opinion piece today, presenting a number of conservationist thoughts/ideas for the new Governor-elect. Some quotes:
    Take the necessary steps to acquire Goose Pond, an 8,000-acre wetland in Greene County that the DNR has been trying to acquire without success for a number of years. The U.S. Fish and Wildlife Service is already engaged in restoring the marsh, which is expected to become a destination for hunters, birders and wildlife watchers.

    Do what at least a half dozen other states have done and develop a program that would increase access to private land for hunters and anglers. Numerous surveys show that a major reason given for the decline in hunting and fishing is not having a place to go. Landowners have turned to leasing access as a way of increasing income, but the unavoidable consequence shuts out those who cant afford to pay.

    In states that have access programs Colorado, Kansas, Michigan, the Dakotas, Wyoming to name a few the landowner still gets money through an incentive payment from the state and the sportsmen get more places to recreate.

    Ban canned hunting of whitetail deer. You will know this is the right thing to do because by now you will have completed steps 1 and 2.

    Posted by Marcia Oddi on Sunday, November 07, 2004
    Posted to Environment

    Saturday, November 06, 2004

    Indiana Courts - SD Ind. Judge Barker and Bloomington Law Prof Geyh on C-SPAN tonight

    C-SPAN's weekly program, America and the Courts, tonight will feature:

    ON AMERICA & THE COURTS - Judicial Independence
    Federal judges Sarah Evans Barker and Charles Clevert discuss judicial independence and the legislative branches. Professor Charles Geyh of Indiana University, Professor Roger Hartley of the University of Arizona, and Mary McQueen, Director of the National Center for State Courts, also participate in this National Association of Women Judges meeting.
    You can watch it this evening on your C-SPAN channel at 7:00 p.m. EST/Indianapolis time, or access it via your computer thereafter, via this link.

    [More] Judge Barker is now a member of the Hanover College Board of Trustees, according to this story in Hanover Today. Some quotes:

    U.S. District Court Judge Sarah Evans Barker has been elected to the Hanover College Board of Trustees. She will begin her term Oct. 16.

    Barker was appointed district court judge in 1984. She served as chief judge of the southern district of Indiana from 1994 to 2000. She began her work with the southern district as assistant U.S. attorney in 1972. She was named first assistant attorney in 1976. Between 1977 and 1981, she was an associate and partner at Bose McKinney and Evans law firm in Indianapolis. She was appointed U.S. attorney for the southern district in 1981.

    Posted by Marcia Oddi on Saturday, November 06, 2004
    Posted to Indiana Courts

    Indiana Courts - State Supreme Court names special judge to hear arguments over Posey courthouse

    "State Supreme Court names special judge to hear arguments over Posey courthouse" is the headline to this story today in the Evansville Star-Press. Some quotes:

    The Indiana Supreme Court has appointed a special judge to hear arguments in a dispute among Posey County officials on the county courthouse.

    Superior Court Judge Dean Sobecki of Daviess County, Ind., will preside over an order filed by one of his peers - Posey Circuit Court Judge James Redwine - who is seeking renovations and security upgrades to the 128-year-old building.

    Redwine filed the mandate June 2, claiming the aging courthouse lacks handicap accessibility, modern security features and sufficient space to file and store records.

    The mandate ordered the Posey County Commissioners and County Council to include funding to renovate the courthouse in its 2005 budget.

    Posted by Marcia Oddi on Saturday, November 06, 2004
    Posted to Indiana Courts

    Friday, November 05, 2004

    Indiana Decisions - Transfer list for week ending November 5, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending November 5, 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.

    Among the transfers denied was David R. Camm v. State of Indiana. On Aug. 10, 2004, the Indiana Court of Appeals ruled (see this ILB entry, 2nd case):

    Conclusion. Camm was unfairly prejudiced by the introduction of extensive evidence and argument regarding his poor character, where the evidence regarding his philandering was not reasonably related to any proper purpose under Indiana Evidence Rule 404(b), including proof of motive. We reverse his three convictions for murder. Reversed.
    The LouisvilleChannel.com, WLKY32 had late coverage of this story this afternoon, headlined "Supreme Court Won't Reinstate Camm's Conviction: Appellate Court Overturned Guilty Verdict In August."

    [Update 11/6/04] The Louisville Courier-Journal has lengthy coverage of this ruling today in a story headlined: "Indiana high court won't hear Camm case." Some quotes:

    INDIANAPOLIS The Indiana Supreme Court has refused to review a lower court's decision that overturned the murder convictions of former state trooper David Camm. The action makes it almost certain that Floyd County authorities will have to decide whether to retry Camm, who was convicted in 2002 of killing his wife and two children, or allow him to go free.

    The attorney general's office, which has handled the case for the state during the appeal, could ask the U.S. Supreme Court to review it. But that is highly unlikely, said Staci Schneider, a spokeswoman for Attorney General Steve Carter.

    For now, Camm remains in protective custody at the Indiana State Prison in Michigan City. But his attorney said yesterday that she planned to file a motion Monday to have him released. "I'm driving up to Michigan City Monday morning," said Katharine Liell, whose office is in Bloomington, "to drive David home."

    She acknowledged, however, that a decision by Floyd County Prosecutor Keith Henderson to refile charges against her client would delay his release. In that case, said Liell, whose office defended Camm during the appeal, she would seek his release on bond as soon as possible.

    Posted by Marcia Oddi on Friday, November 05, 2004
    Posted to Indiana Transfer Lists

    Indiana Decisions - Court of Appeals posts five

    George E. Goodwine v. J. William Goodwine, et al. (11/5/04 IndCtApp) [Trusts & Estates]
    Baker, Judge

    Appellant-plaintiff George E. Goodwine (Goodwine) appeals the trial courts judgment against him and in the favor of appellees-defendants J. William Goodwine and Edward Kristoff (collectively, the Trustees). Specifically, Goodwine raises approximately fourteen issues, which we distill into two contentions. Goodwine argues that the trial court erred in determining that the Trustees did not breach any common law or statutory duties by: (1) planting a percentage of the farmland owned by the Trust with a clover/oat rotation instead of a corn/soybean rotation; and (2) planning to build a new tool shed for the use of a tenant of the farmland. Finding that the trial court properly entered judgment in favor of the Trustees, we affirm. * * *

    The settlor intended to provide for current and future beneficiaries, safeguarding his legacy and his farmland. The Trustees have acted according to his intent and complied with the unambiguous Deed of Trust by employing a clover/oats rotation to protect and enhance the longevity of the soil, and by planning to construct a tool shed to help a current farmer tenant and to make the farmland more attractive to high-quality tenants in the future. Their actions have breached neither the spirit nor the letter of the trust instrument, nor any potentially applicable common law or statutory duties. There is no evidence in the record that they have in any way acted in bad faith or abused their discretion, and there is evidence in the record that all beneficiaries other than Goodwine have been happy with the Trustees. Therefore, the evidence supports the trial courts findings and the findings support its judgment. The judgment of the trial court is affirmed.
    KIRSCH, C.J., and ROBB, J., concur.

    Robert J. Eads v. Perry Township Fire Department, et al. (11/5/04 IndCtApp) [Worker's Compensation]
    Baker, Judge
    Appellant-plaintiff Robert Eads appeals from the Full Workers Compensation Boards (Board) decision in his case against appellees-defendants Perry Township Fire Department (Department), his employer, and Employers Security Insurance Company (ESI) awarding him no medical benefits for injuries he sustained while at work. Specifically, Eads raises three issues, but we find one dispositive: whether the Board erred in finding that Eadss application was barred by the applicable Statute of Limitations. Finding no error, we affirm. * * *

    The award of the Board is affirmed.
    KIRSCH, C.J., and ROBB, J., concur.

    Sean Strong v. State of Indiana (11/5/04 IndCtApp) [Criminal Law & Procedure]
    Bailey, Judge
    Case Summary. Appellant-Defendant Sean Strong (Strong) appeals his sixty-year sentence for murder. We remand for a new sentencing order.

    Issue. Strong raises two issues, which we consolidate and restate as whether he was denied his Sixth Amendment right to have a jury determine, beyond a reasonable doubt, all facts legally essential to his sentence when the trial court found certain aggravating circumstances and sentenced him to an enhanced term of sixty years. * * *

    For the foregoing reasons, we remand for a new sentencing order consistent with the dictates of Blakely. Remanded.
    SHARPNACK, J., and MAY, J., concur.

    [Note.] Strong v. State is an important Blakely decision and essential reading for those following this issue. Recommended companion reading is Bloomington attorney Michael Ausbrook's analysis, available here at his blog, INCourts. Some quotes from his entry:
    A unanimous panel of the Court of Appeals (Judges Bailey, Sharpnack, and May) reversed an enhanced sentence for Murder today in Strong v. State, Court of Appeals No. 49A02-0401-CR-25 (Ind. Ct. App. November 5, 2004). This really is the first full-blown Blakely decision in Indiana and it does a number of important things besides simply applying Blakely:
  • It rejects the State's waiver arguments.
  • It remands for resentencing without saying anything about a sentencing jury.
  • Although not explicitly, the opinion practically invites a mitigated sentence, because the aggravating circumstances have to be set aside and there is at least one mitigating circumstance.
  • Lori A. White v. Brian D. White (11/5/04 IndCtApp) [Family Law]
    Sullivan, Judge
    Lori White appeals from the trial courts determination that the lien held by her former husband, which arose out of their property settlement, is a consensual lien. The sole issue she presents for our review is whether the lien should instead be classified as a judicial lien. * * *

    Applying these definitions to the situation before us, we have a judgment lien as defined by the parties. Furthermore, its basis is a judgment against Lori created by the settlement agreement. At the time that the lien was created, the house was nonexempt property in the sense that the lien could be imposed upon that property and Brian could attach the property under the appropriate circumstances. Because a judicial lien is one obtained by judgment, the lien also qualifies as a judicial lien for purposes of Title 11 of the U.S. Code. Whether the bankruptcy court ultimately determines that the lien may be avoided such that the property is exempt for purposes of applying the bankruptcy provisions is a separate question. Needless to say, for purposes of Indiana law in classifying liens, a judgment lien is a judicial lien. The trial courts determination that the lien is a consensual lien is reversed.
    NAJAM, J., and BARNES, J., concur.

    John Glover v. State of Indiana (11/5/04 IndCtApp) [Criminal Law & Procedure]
    Barnes, Judge
    Case Summary. John Glover brings this interlocutory appeal challenging the denial of his motion to suppress the testimony of his wife, Bobbie Glover, in his trial for the murder of Tammy Gibbs. We reverse.

    Issue. We address one issue, which we restate as whether the trial court erroneously found that the spousal privilege did not apply to Bobbies testimony. * * *

    Glover filed a motion to suppress Bobbies testimony pursuant to the spousal privilege codified at [IC] 34-46-3-1. The trial court denied the motion after a hearing. Specifically, the court found that the only purpose of the Glovers marriage was to assist Bobbie, who immigrated to the United States from India in 1999, to remain in this country legally. The court concluded that under these circumstances, where the purpose of the marriage was to defraud the federal government, even though the parties were legally married, they were in no sense of the word . . . spouses, and the spousal privilege did not apply. Glover appeals. * * *

    In light of the nature of the more than one-hundred-year-old statutory privilege and its well-established exceptions, we decline the States request to follow federal law and create a fraudulent marriage exception to the spousal privilege. Such a creation is best left to the legislature.

    Furthermore, to the extent the State argues that the Glovers marriage was fraudulent because John and Bobbie intended to defraud the federal government to evade immigration laws, we point out that there is no dispute that the marriage is lawful under the laws of Kentucky, and by extension is lawful in Indiana. Where we are concerned with applying a state statute in a state court proceeding, the relevant consideration is whether that marriage is lawful according to state law. The fact that Bobbie was Glovers lawful wife put the seal on her lips and excluded her from being called as a witness against him unless one of the well-established exceptions to the privilege applied. State v. Chrismore, 274 N.W. 3, 5 (Iowa 1937) (holding that [w]hen the marriage ceremony is performed, no matter what the motive was or may be, the witness thenceforward becomes the lawful wife of defendant, and is prohibited under our statute from testifying against her husband, except where the offense is by the husband against her person.)

    Additionally, we believe accepting the States position would allow for the creation of numerous exceptions to the spousal privilege and create undue uncertainty in its application if courts were to routinely inquire into the quality of a marriage before determining whether the privilege applies. For this additional reason, we decline to judicially create a fraudulent marriage exception to the spousal privilege.

    Conclusion. The trial court erred when it found that the spousal privilege did not apply to Bobbies testimony and denied Glovers motion to suppress. We reverse. Reversed.
    NAJAM, J., and SULLIVAN, J., concur.
    _____
    Footnote: The spousal testimonial privilege differs from the statutory spousal privilege that we are addressing today. The spousal testimonial privilege can be invoked by either spouse to refuse to testify against the other whereas the statutory spousal privilege applies to communications between a husband and a wife.

    Posted by Marcia Oddi on Friday, November 05, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts five

    Details later ...

    Taco Bell Corp v. Continental Casualty (ND Ill.)

    Cigan, Corrine v. Chippewa Falls School District (WD Wis.)

    Butts, Celestine v. Aurora Health Care (ED Wis.)

    Matz, Robert v. Household Int'l Tax (ND Ill.)

    USA v. Rogers, Theodore D. (ND Ind., James T. Moody, Judge)

    Before CUDAHY, RIPPLE and WOOD, Circuit Judges.
    RIPPLE, Circuit Judge. Pursuant to a plea agreement,
    Theodore Rogers pleaded guilty to one count of possession
    with intent to distribute cocaine in violation of 21 U.S.C.
    841(a)(1). The plea agreement required him to testify at the
    trial of Winfred Owens. He later filed a motion to withdraw
    his guilty plea; the district court denied the motion. He now
    appeals that decision.

    Mr. Rogers did testify at Mr. Owens trial, and based in
    part on his testimony, Winfred Owens was convicted of
    multiple drug trafficking offenses in violation of 21 U.S.C.
    841(a)(1) and 843(b), and of 18 U.S.C. 1952. He appeals
    his conviction.

    For the reasons set forth in the following opinion, we affirm
    the district courts denial of Mr. Rogers motion to withdraw
    his plea, and we reverse the judgment of the district
    court with respect to Mr. Owens conviction and remand the
    case for further proceedings. * * *

    Conclusion. For the foregoing reasons, we affirm the district courts
    denial of Mr. Rogers motion to withdraw his guilty plea.
    With respect to Mr. Owens, we hold that there was sufficient
    evidence to support his convictions, but we reverse on
    all three counts because the in-court identification of Mr.
    Rogers improperly was admitted into evidence. Mr. Owens
    case is remanded to the district court for further proceedings.
    AFFIRMED in part; REVERSED and REMANDED in part.

    Posted by Marcia Oddi on Friday, November 05, 2004
    Posted to Indiana Decisions

    Indiana Law - Is the jury still out on District 46? Who is the jury?

    This will be the Indiana Law Blog's 20th entry on the Indiana House District 46 election dispute. (To find the others, enter "District 46" in quotes in the search box.) In that race, the Republican candidate, Jeffrey Lee, withdrew and was replaced by current State Representative Brooks LaPlante, who earlier had decided not to run for re-election. Democrats challenged and several court rulings followed (available here and here), culminating in a Court of Appeals ruling "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." (This quote is from an AP story summaried in this earlier ILB entry.) The AP story continued:

    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.

    Well, the election is over now, and LaPlante was defeated by over 700 votes. Will the Republicans appeal? That question was the subject of a story yesterday in the Terre Haute Tribune-Star by Howard Greninger. Some quotes:
    By the final count, Democrat Vern Tincher won the Indiana House District 46 seat by 734 votes in a race that revolved around absentee ballots. Yet, it's those same absentee ballots that could become a basis for a Republican recount challenge by their candidate, Brooks LaPlante. The state GOP has until noon Tuesday to determine if it will request a recount. One option could be to ask the House of Representatives to conduct its own review.

    If election finals hold statewide, Republicans would control the House 52 to 48.

    "We are considering all the options and are analyzing how the count was conducted, particularly on the absentee ballots," said James Bopp Jr., attorney for the Indiana Republican Party. "We think there is some significant discrepancies in there and possibly some illegalities. "Once we are done, we will let everyone know what we are going to do," Bopp said.

    Bopp said absentee ballots were the difference in the election. "The big problem was the delays and obstruction tactics of the Democrats meant many absentee voters were disenfranchised because they got a ballot with Lee's name on it, not LaPlante." Before a count of absentee ballots, Tincher led the race by 63 votes. After the absentee ballots were counted, Tincher had won by 734 votes. * * *

    "If the Republican caucus wants to challenge my majority of 734 votes, they won a couple of seats by about 150 votes" in House districts 64 and 31, Tincher said. "So, if they use the same rules in counting, and I would expect consistency, then if they challenge me, I would assume the Democrat caucus would challenge those two seats that won by about 150 votes."

    In addition, if there is a Republican challenge, the Indiana Democratic Party could ask the Indiana Court of Appeals or Supreme Court to continue a lawsuit the Democratic Party filed challenging LaPlante's eligibility on the ballot. Tincher said two trial courts issued rulings that Jeff Lee did not meet requirements of being physically removed from the district. "I think it is possible the Indiana Democratic Party could see favorable action in a higher court," Tincher said. * * *

    Any dispute will revolve around absentee ballots. Here's how those numbers break down. Tincher won with 11,533 votes to 10,799 votes for LaPlante. In Vigo, Tincher received 5,224 votes, plus 717 absentee, while LaPlante received 4,890 votes plus 315 absentee. That gave Tincher a 5,941 total compared to 5,205 for LaPlante.

    In Owen County, where 18 of 19 voting precincts rest in District 46, Tincher received 3,190 votes plus 572 absentee votes for a total 3,762. LaPlante received 3,184 votes plus 287 absentee for 3,471.

    In Clay County, LaPlante got 1,596 votes plus 114 absentee- ballot votes for a total 1,710 votes. Tincher tallied 1,129 votes plus 99 absentee for 1,228 votes. In Monroe County, Tincher got 530 votes plus 72 absentee for 602 total votes. LaPlante got 359 votes plus 54 absentee for 413 total votes.

    Re the "noon Tuesday" reference in the story above, according to IC 3-12-11-2:
    Sec. 2. (a) A candidate who desires:
    (1) a recount of votes cast for a nomination or election subject to this chapter; or
    (2) to contest a nomination subject to this chapter or the election of a state office other than governor or lieutenant governor;
    must file a verified petition with the election division not later than noon seven (7) days after election day.

    (b) A state or county chairman who is entitled to and desires to file a petition for a recount or contest under this chapter must file a verified petition with the election division not later than noon ten (10) days after election day.

    IC 3-12-11-21 provides in pertinent part that when a recount for a legislative office is complete, the secretary of state is required to deliver a certified statement of the results to :
    * * * the presiding officer of the house in which the successful candidate is to be seated.

    (c) The statement shall be referred by the presiding officer for such action as that house considers appropriate.
    Although there has been talk about resolving the issue in the Court of Appeals where the case is on hold at present, as noted in this ILB entry from Nov. 1st, titled "District 46 and the separation of powers," Art. 4, Sec. 10 of the Constitution of the State of Indiana provides that "Each House, when assembled, shall * * * judge the elections, qualifications, and returns of its own members * * *." A knowledgeable reader writes:
    [T]he issue of who is entitled to sit as a Representative can be raised only by a member of the House. Rep.-elect (apparently) Tincher will have a certificate of election in hand on November 16 and will be at least conditionally seated. If anyone challenges, its usually by a motion to appoint a committee to look into the matter. I think the procedure used to be that contested members would be asked to step aside and not take the oath. [Now, I believe,] contested members take the oath conditionally, subject to any determinations made by the House.
    [More] Before the election, it was thought by many that control of the House of Representatives might rest upon which way the District 46 election went. However, even with the apparent loss of Distrct 46, the House returns show it now at 52-48 Republican, making, it would appear, resort to a court appeal or House seating fight less pressing.

    Posted by Marcia Oddi on Friday, November 05, 2004
    Posted to Indiana Law

    Thursday, November 04, 2004

    Indiana Law - [Updated] New Governor means big changes in state administration

    A front-page story in today's Indianapolis Star details the work awaiting the new governor and his transition team before the January 10, 2005 inauguration of Gov. Mitch Daniels and Lt. Gov. Becky Skillman. The headline is: "State's new governor elects to dive right in: Daniels' staff, still celebrating Tuesday's win, must focus on filling 3 key positions quickly." Some quotes:

    State law requires that the governor-elect's team be given a state government office, equipment and phone service, plus $40,000, and requires the outgoing government to provide reports to ease the transition. Bill Oesterle, Daniels' campaign manager and a member of his transition team, said there are three hiring priorities: budget director, legislative liaison and personnel director. * * *

    Daniels -- who served two years as President Bush's budget director -- will need someone to immediately begin crafting what are expected to be tough budget decisions, Oesterle said. Daniels also wants a legislative liaison in place to work with Skillman in pushing his agenda through the legislature. That's a job voters made a lot easier Tuesday when they gave Daniels a Republican legislature.

    Heading the transition team -- which will be in charge of everything from recruiting to planning the inaugural ceremony and ball -- is Harry Gonso, an Indianapolis attorney and a star quarterback for Indiana University in 1967. * * * He's expecting to fill 20 to 40 top state positions between now and Jan. 10, with many more to be filled throughout 2005. Aides said Daniels could have more than 200 jobs to fill before his administration is fully in place. * * * Gonso said he scoured the library for books and articles on transitions and sought out Republicans who recalled the last transition in the party controlling the governor's office 16 years ago.

    "I asked for all kinds of advice," he said. "What things to do and what things to avoid." Among that advice, he said, was to carefully check the background of everyone before hiring, to avoid political embarrassments and to make sure everyone who signs up is loyal to the new administration.

    Bill Moreau was both transition director and the new chief of staff in 1988 when Evan Bayh became the first Democratic governor in 20 years. "It was certainly like trying to drink from the proverbial fire hose," he said. There was so much to do and so little time between election and inauguration, he added.

    One of the hardest tasks of forming a new government isn't just hiring the right people -- it's firing the ones already there. Moreau said that when Bayh took over from the administration of Gov. Robert D. Orr, the last Republican governor, only one of the many department and agency heads and executive assistants sent in a letter of resignation, effective the date of Bayh's inaugural.

    It came from his father, Donald W. Moreau Sr., who was Orr's commissioner of labor. The rest had to be told they could not stay in the new Democratic administration. * * *

    Tom New, who was chief of staff when Gov. Frank O'Bannon took over from his fellow Democrat Bayh in 1996, said the dismissals can seem harsh, but they're a necessity. "My feeling is we didn't make enough changes in 1996," he said. "People get comfortable in their roles. People don't think they owe their position to the (new) governor."

    After the 1996 election, he said, he and O'Bannon attended a National Governors Association training session for new administrations. The personnel advice he got from a veteran Republican chief of staff, New said, was blunt: "Fire them all." New said that before Tuesday's election, he'd already had people asking if he thought their jobs would be safe in a Republican administration. He told them no. "Not only will you lose your job, you should lose your job."

    Wednesday, Kernan met with his agency heads. Laughter could be heard, but afterward, people were blinking away tears as they left. The days of patronage are gone, however, so most of the more than 35,000 state employees cannot simply be dismissed when a new administration takes over.

    Updated 11/5/04] Today's Star includes this report:
    Gov.-elect Mitch Daniels delivered a letter to Gov. Joe Kernan Thursday regarding the upcoming transition of government that left some Democrats miffed.
    Details: Daniels thanked Kernan for promising to work cooperatively during the transition. But he also asked Kernan not to take steps that would impede the new administration from having "maximum flexibility" when it assumes office in two months.
    Excerpts: "During this interim, we request that there be no additional political appointments, no transfers of personnel from non-merit to merit positions, no new executive orders, no final regulations issued, and no changes to compensation or benefits for any individuals or for any employee group contracts or agreements."
    Reaction: Kernan is committed to a smooth transition, chief of staff Mary Downes said. But Kernan, "is still the governor and he has the responsibility of running the office day-to-day," Downes said. "I don't think we'll unequivocally say, 'Yes, we'll do everything' (that Daniels requested). But we'll take it under consideration and we'll keep them informed."
    [More] See also this Lesley Stedman Weidenbener piece today in the Louisville Courier-Journal, and this story today in the Fort Wayne Journal Gazette.

    Posted by Marcia Oddi on Thursday, November 04, 2004
    Posted to Indiana Law

    Indiana Courts - Indiana Supreme Court will host a Spirit and Place event in its Courtroom re-enacting aspects of the famous desegregation case, Brown v. Board of Education

    According to a press release just issued:

    COURT HOSTS SPIRIT AND PLACE EVENT ON BROWN V. BOARD OF EDUCATION DESEGREGATION CASE

    The Indiana Supreme Court will host a Spirit and Place event in its Courtroom re-enacting aspects of the famous desegregation case, Brown v. Board of Education, Chief Justice Randall T. Shepard announced today.

    About 100 students from three Central Indiana schools will take part in the event by role-playing various parts of Brown and the related desegregation cases. It will begin at 10 a.m. on Tuesday, Nov. 9, 2004 in the Courtroom on the third floor of the Indiana State House.

    May 17, 2004 was the 50th anniversary of the famous U.S. Supreme Court case, which banned segregation of schools by race.

    The event will be broadcast live on the Internet at www.IN.gov/judiciary/education. It is part of the ninth annual Sprit and Place Festival. Spirit and Place is Central Indianas annual civic festival of the arts, humanities, and religion. Produced by The Polis Center at IUPUI, the festival is a collaboration of dozens of partner organizations.

    The 2004 festival takes place November 5 - 21, 2004 throughout Central Indiana. This years theme is Building & Belonging, with 100 events inspired by this fruitful idea. For more information, visit: www.spiritandplace.org.

    Posted by Marcia Oddi on Thursday, November 04, 2004
    Posted to Indiana Courts

    Indiana Decisions - 7th Circuit posts four today

    Smith, Randy v. Northeastern IL Univ (ND Ill.)

    Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
    WILLIAMS, Circuit Judge. Plaintiffs Randy Smith, Victoria
    Guerrero, Ann Weaver and Elbert Lee Reeves filed suit
    against defendants Northeastern Illinois University (Northeastern),
    Gerald Leenheer, and Kevin Connolly. Smith,
    Reeves and Weaver, all African American, alleged that the
    defendants (Connolly and Leenheer are white) discriminated
    against them on account of their race by creating and
    tolerating a hostile work environment in violation of 42
    U.S.C. 1981 and Title VII of the Civil Rights Act of 1964,
    42 U.S.C. 2000e et seq. In addition, they, along with
    Guerrero, who is Latina, allege suffering racially motivated
    retaliation in violation of 1981 and Title VII. All four
    plaintiffs also claim that the defendants violated their
    rights under 42 U.S.C. 1983 and the First Amendment by
    depriving them of their ability to complain about their
    unfair treatment at defendants hands and by subjecting
    them to a hostile work environment or harassment when
    they exercised their First Amendment rights. * * *

    Weaver and Guerrero appeal the district courts grant of
    summary judgment on their hostile work environment and
    retaliation claims under Title VII. Smith and Reeves seek
    this courts review of the district courts denial of their motion
    for a new trial under Federal Rule of Civil Procedure 59.
    On appeal, plaintiffs do not pursue any claims against
    Connolly, so we treat him as no longer a party to this case.
    For the reasons given below, we affirm. * * *

    Davis, Cedell v. Holmes, Michael L. (ND Ill.)
    Before RIPPLE, WOOD, and EVANS, Circuit Judges.
    WOOD, Circuit Judge. A dispute between two intoxicated
    friends turned lethal when Cedell Davis stabbed Donovan
    (also known as David) Coleman as they watched football
    together one afternoon. Before, during, and after his trial,
    Davis implored his counsel to investigate a number of
    potential witnesses who would have supported his claim of
    self-defense, including the only sober eye-witness to the altercation.
    Notwithstanding these pleas, his attorneys never
    contacted any of the witnesses that Davis identified and
    called no defense witnesses at trial. After making his way
    through the Illinois courts, Davis filed a pro se petition for
    habeas corpus stating a claim of ineffective assistance of
    counsel based on his attorneys failure to investigate these
    witnesses.

    The district court rejected his claim as procedurally defaulted
    and further found that the Illinois courts had not
    unreasonably applied Strickland v. Washington, 466 U.S.
    668 (1984),when they concluded that his attorneys failure
    to contact these witnesses was reasonable and that he suffered
    no prejudice as a result. Because we cannot provide a
    meaningful review of Daviss habeas petition and the
    Illinois courts adjudication of his Strickland claim without
    more information regarding the content of these potential
    witnesses testimony, we vacate the district courts denial of
    Daviss habeas petition and remand for an evidentiary
    hearing on this issue. * * *

    Halprin, Robyn v. Prairie Single Fam (ND Ill.)
    Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
    POSNER, Circuit Judge. The district court dismissed this
    suit under the Fair Housing Act, 42 U.S.C. 3601 et seq., for
    failure to state a claim, specifically under sections 3604 and
    3617; there are also state law claims, but as is usual the
    district judge relinquished jurisdiction over them when he
    dismissed the federal claims before trial. The plaintiffs are
    a couple who own a home in a suburban subdivision. The
    principal defendant is the homeowners association that
    manages the subdivision and provides various services to
    the homeowners. The other defendants, with the exception
    of a corporation (and its president) that also provides
    services and is alleged to have acted in cahoots with the
    association in harassing the plaintiffs, are members of the
    association; that is, they are the plaintiffs neighbors.
    The complaintour only source of facts, because the suit
    was dismissed for failure to state a claimalleges the following:

    One of the plaintiffs is Jewish. The president of the association
    wrote H-town property on a wall of the plaintiffs
    property, H-town being short for Hymie Town, and he
    further vandalized the property by damaging trees and plants
    and cutting down strings of holiday lights. * * *

    USA v. Villegas, Joel (ND Ill.)
    Before COFFEY, RIPPLE and KANNE, Circuit Judges.
    RIPPLE, Circuit Judge. In November 2001, a grand jury
    returned a two-count indictment against Joel Villegas; the
    indictment charged Mr. Villegas with one count of possessing
    with intent to distribute cocaine in violation of 21
    U.S.C. 841(a) and with one count of carrying a firearm in
    relation to a drug trafficking offense in violation of 18 U.S.C.
    924(c). Mr. Villegas moved to suppress the evidence on
    which the indictment was based. After the district court
    denied the motion without an evidentiary hearing, Mr.
    Villegas entered an unconditional plea of guilty on both
    counts and was sentenced to 180 months imprisonment.
    Mr. Villegas now challenges aspects of his guilty plea and
    his sentence. We affirm. * * *

    Posted by Marcia Oddi on Thursday, November 04, 2004
    Posted to Indiana Decisions

    Environment - Well-known environmentalist to retire

    "Dedicated Dunes activist retiring from lifelong effort" was the title to this story [no longer available online] published Monday, Nov. 1 in the Gary Post-Tribune. Some quotes:

    MILLER For more than 40 years Charlotte Read has been a name to be reckoned with when it comes to preserving the sandy shoreline and hilly dunes of Lake Michigan. Just as timeless as the dunes and relentless as Lake Michigans water are her efforts through the Save the Dunes Council.

    However, Read, 75, will retire at the end of the year. She was honored for her dedication during the organizations annual meeting Sunday. Its been 30 years, Read said, Its time. It doesnt mean that Im losing interest in the issue. * * *

    For Read the rewards were the successful campaigns that added land to the Lakeshore boundaries and came in waves, with new land added in 1966, 1976, 1980, 1986 and 1992. She also was relieved that the Bailey nuclear power plant was thwarted.

    Even with the successes, Read sees plenty of work ahead, including adding more land to the protected Lakeshore boundaries and undertaking the challenges of the Marquette Greenway project, which was discussed during the meeting.

    [Update 11/6/04] The Munster Times has a story today that begins:
    The effort to save Indiana's Dunes is far from over, said one of Northwest Indiana's leading environmentalists who announced her retirement this week.

    Charlotte Read will step down from her 12-year tenure as assistant director of the Save the Dunes Council at the end of the year. She earlier served as the organization's executive director from 1974 to 1992.

    Many of the gains made in the council's half-century history are today challenged by development and by air and water pollution, Read said. The conflicts inherent in balancing use and preservation of the region's prime natural resource will need ongoing attention, she said.

    Read, 75, was one of a group of activists who lobbied for a national park along Indiana's Lake Michigan shore and spurred creation of Indiana Dunes National Lakeshore in 1966.

    The successful 1970s effort to block plans for a nuclear power plant at NIPSCO's Bailly generating station between Bethlehem Steel and the town of Dune Acres was a highlight of her Save the Dunes career, Read said.

    Posted by Marcia Oddi on Thursday, November 04, 2004
    Posted to Environment

    Indiana Decisions - Three decisions posted by Court of Appeals today

    Shane Daugherty v. Sherry Daugherty (11/4/04 IndCtApp) [Family Law]
    Hoffman, Senior Judge

    Respondent-Appellant Shane Daugherty (Husband) appeals the trial courts division of property in the dissolution of the marriage between Husband and Petitioner-Appellee Sherry Daugherty (Wife). We reverse and remand for action consistent with this opinion.

    Husband presents two issues which we consolidate and restate as one: whether the trial court erred by distributing the property of the parties contrary to the parties prenuptial agreement. * * *

    Based on the foregoing discussion and authorities, we conclude that the trial courts Findings of Fact 20, 35 and 39 were not supported by the evidence, and that the award of the judgment in favor of Wife in the amount of $20,920.69 was an abuse of the discretion of the trial court. Reversed and remanded for action consistent with this opinion.
    ROBB, J., and BAKER, J., concur.

    Chad Kelly & Shawn Tyree v. Terry Hamilton & Allstate Insurance Co. (11/4/04 IndCtApp) [Insurance]
    Sullivan, Judge
    Appellants-Plaintiffs, Chad Kelly and Shawn Tyree (collectively the Plaintiffs), challenge the trial courts grant of summary judgment in favor of Appellee-Garnishee Defendant, Allstate Insurance Company (Allstate). In challenging the propriety of the summary judgment, the Plaintiffs present two issues for our appellate review, which we restate as: (1) whether Allstate is collaterally estopped from claiming coverage defenses for the first time at the proceeding supplemental stage when it did not appear to defend its insured, Terri Hamilton; and (2) whether the Allstate policy covered the damages recovered by the Plaintiffs through the judgment against Allstates insured. * * *

    Here, Kaylee Rentals, as did the parents in Gonterman, placed express restrictions on Kellys use of the vehicle. Kellys subsequent grant of permission to Hamilton to use the car was outside the scope of his permission to use the car in the first place. Thus, we conclude that Hamilton was not driving with the permission of the owner of the rented Ford. As such, she was not driving an insured auto as defined in the Allstate policy. The trial court did not err in granting summary judgment in favor of Allstate. The judgment of the trial court is affirmed.
    NAJAM, J., and BARNES, J., concur.

    Michael L. Nevel v. State of Indiana (10/14/04 IndCtApp) [Criminal Law & Procedure]
    [Originally issued as NFP]
    Darden, Judge
    Michael L. Nevel appeals his convictions, after a jury trial, of auto theft and resisting law enforcement, both as class D felonies. We affirm in part and remand in part.

    ISSUES 1. Whether Nevel's convictions violate state double jeopardy principles. 2. Whether he is entitled to a new trial because of comments by the prosecutor in closing argument. * * *

    We affirm Nevel's convictions for auto theft and resisting law enforcement, both as class D felonies. We remand for the trial court to vacate the misdemeanor conviction.
    BAKER, J., and FRIEDLANDER, J., concur.

    Posted by Marcia Oddi on Thursday, November 04, 2004
    Posted to Indiana Decisions

    Law - Madison County Illinois no longer to be plaintiffs' attorney destination?

    "The election of a Republican to the Illinois Supreme Court on Tuesday was a disaster for the Madison County plaintiff's bar" begins this story today in the St. Louis Post-Dispatch. Some quotes:

    [Lloyd] Karmeier's victory cuts the Democratic majority on the court to 4-3. He will be the first Republican from Southern Illinois to serve on the state's highest court since 1969.

    [Longtime prosecutor Don Weber] called Karmeier's victory a "cataclysm" for personal-injury lawyers, and said the biggest impact would be in the area of forum shopping in civil cases.

    For decades, the Madison County court has attracted damage lawsuits from around the United States because of the county's reputation for generous verdicts.

    Weber said he expected defense attorneys to begin filing more motions to dismiss such out-of-state claims with the confidence that Karmeier will agree to hear their appeals.

    "The way the Supreme Court works, cases taken from the 5th District (for appeal) are taken largely because the Supreme Court judge from that district believes they should be taken," Weber said.

    He also said the 5th District appellate court, which hears appeals from Madison County, is too lenient in dealing with criminal cases.

    Posted by Marcia Oddi on Thursday, November 04, 2004
    Posted to General Law Related

    Wednesday, November 03, 2004

    Indiana Law - Some other election law stories today

    Indiana House District 46. Two stories in the Terre Haute Tribune-Star today about this race that has already led to four court decisions. This story is headlined "District 46 far from over: Tincher leads LaPlante by 500 votes - but absentee ballots still out." Another story: "District 46 legal issues raises questions in Clay County," begins:

    Nine hours after polls opened Tuesday, legal decisions handed down in the Indiana House District 46 race continued to raise questions.

    Members of the Clay County Election Board met with their attorney Eric Somheil to try to figure out exactly what the Indiana Court of Appeals wanted done with absentee ballots in the Clay County precincts within that district.

    Electoral college. An AP story today about the Indiana electoral college points out that Indiana electors, although selected at the parties' conventions, are not legally bound to vote for their party's candidate. Some quotes:
    The [U.S.] Constitution does not require electors to vote a specific way, but 29 states and the District of Columbia ask electors to vote according to their party's slate.

    Indiana, however, is not one of them. * * * No Indiana elector has ever withheld a vote or cast it for the opposing party, according to the Indiana secretary of state's office.

    George Juergens, a Indiana University professor emeritus of history who specializes in the presidency and the press, said allowing electors to switch votes was an 18th-century concept.

    "There was a concern about the masses of people, and some leaders wanted to be sure the elector could vote against the masses if he thought it was in the best interest of the nation," he said. "(Thomas) Jefferson in particular was very concerned about cities developing because he thought they would create voting mobs rather than informed electorates."

    Posted by Marcia Oddi on Wednesday, November 03, 2004
    Posted to Indiana Law

    Indiana Law - All three proposed constitutional amendments pass

    As reported here in the Indianapolis Star today:

    [ Property tax:] Hoosier voters on Tuesday approved changes to the Indiana Constitution that will give lawmakers unprecedented authority to rewrite property tax laws.

    State lawmakers had backed the change so the inventory tax could be legally abolished and other tax breaks for homeowners and businesses could withstand court challenges. * * *

    The amendment removes the requirement that homes, land, buildings, equipment and inventories be taxed on a "uniform and equal" basis. The so-called "uniformity clause" meant, for example, that homeowners shouldn't get tax breaks that are more favorable than those available to businesses. * * *

    Critics fear the proposed amendment's wording could pave the way for the General Assembly to shift more of the property tax burden onto businesses. This could be done by valuing homes and farms at a fraction of their market value in a process known as property classification.

    Here's a quick look at how other amendments on the ballot were faring Tuesday night:

    Succession: This amendment was a post-9/11 effort to create a smoother transfer of power if both the governor and lieutenant governor were unable to continue in office. The line of succession would be House speaker, Senate president pro tempore and state treasurer.

    Terms of office: This amendment would correct an anomaly by which some counties elect officials who don't take office until 14 to 16 months later. The changes would occur in the 2006 and 2008 county elections.

    Posted by Marcia Oddi on Wednesday, November 03, 2004
    Posted to Indiana Law

    Indiana Decisions - 7th Circuit posts five today

    USA v. Fish, Jeremy (ED Ill.)

    Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Jeremy Fish pled guilty to a charge
    of assault with a dangerous weapon and was sentenced to
    37 months imprisonment. In this appeal, he challenges pretrial
    rulings made by the district court that precluded his
    presentation of a defense based on the theory of entrapment
    by estoppel. Fish also appeals the district courts denial of
    his motion for a downward departure at sentencing. We find
    no merit to either of Fishs contentions and affirm the
    judgment and sentence of the district court.
    Smith, Herbert v. City of Hammond (ND Ind., Rudy Lozano, Judge)
    Before FLAUM, Chief Judge, and POSNER and ROVNER,
    Circuit Judges.
    POSNER, Circuit Judge. * * * We add unnecessarily that Judge Harkins policy is not arbitrary. The difference between cash bonds and surety
    bonds is, as we mentioned, that if the defendant has a cash
    bond and complies with its terms he has a shot at getting his
    money back, but if he has a surety bond he doesnt get the
    premium back, typically, as in this case, 10 percent of the
    face amount of the bond. Lake County Clerks Office v. Smith,
    766 N.E.2d 707, 709-10 (Ind. 2002); Holly J. Joiner, Note,
    Private Police: Defending the Power of Professional Bail
    Bondsmen, 32 Ind. L. Rev. 1413, 1417 (1999). If the defendant
    is a substantial flight risk, the judge, as an alternative
    to increasing the amount of bail and thus the amount of a
    cash bond, may require the posting of a surety bond, to get
    the bondsmans assessment of the risk (which will determine
    the premium) and also his aid in assuring compliance
    with the terms of bail, since the bondsman will have to pay
    if they are violated. But this is a judgment for
    the judge to makenot the bondsman by suing the judge.
    It is, moreover, a discretionary judgment, as we noted
    earlier.

    The denial of the motion for a preliminary injunction is
    affirmed, and in view of the plainly meritless character of
    the underlying suit we suggest that the district judge dismiss
    it without further ado. If Smith persists in this hopeless
    litigation, heand his lawyerare courting sanctions.
    AFFIRMED.

    Herron, Gary v. DaimlerChrysler Corp (SD Ind., Sara Evans Barker, Judge)
    Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
    MANION, Circuit Judge. Gary Herron sued his former
    employer, DaimlerChrysler Corporation (Daimler-
    Chrysler) under Title VII of the Civil Rights Act of 1964, 42
    U.S.C. 2000e, et seq., and 42 U.S.C. 1981, alleging race
    discrimination, retaliation, racial harassment, and constructive
    discharge. The district court granted Daimler Chryslers
    motion for summary judgment. * * *

    Gary Herron was an employee who was able to do some
    aspects of his job quite well. Unfortunately, he also was an
    employee whose interaction with his subordinates, peers,
    and supervisors was unacceptable. It was Herrons confrontational
    and disrespectful attitude, and not his race, that
    created his problems at DaimlerChrysler. Because Herron
    failed to present sufficient evidence of race discrimination,
    retaliation, race harassment, or constructive discharge, the
    district court properly granted DaimlerChrysler summary
    judgment. For these and the foregoing reasons, we AFFIRM.

    USA v. Jeffers, Garland (ND Ind., Allen Sharp, Judge)
    Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. A jury convicted Garland Jeffers
    in 1975 of engaging in a continuing criminal enterprise
    (CCE), and the district court ordered him to serve a prison
    term of life. In the nearly 30 years since, Jeffers has been
    trying without success to obtain relief from that conviction
    and sentence. Unfortunately for Jeffers, his present effort
    fares no better than his previous attempts. The district
    court dismissed for want of jurisdiction Jeffers motion to
    correct his sentence pursuant to the applicable version of
    Federal Rule of Criminal Procedure 35(a). We affirm that
    ruling.

    USA v. Zuniga-Lazaro, Sergi
    (WD Wis.)
    Before MANION, ROVNER, and WOOD, Circuit Judges.
    ROVNER, Circuit Judge. Sergio Zuniga-Lazaro, a citizen
    of Mexico, pleaded guilty to being present in the United
    States without the permission of the Attorney General after
    previously having been deported. The district court ordered
    him to serve a prison term of 57 months, a sentence at the
    top of the range specified by the Sentencing Guidelines.
    Zuniga-Lazaro appeals, contending that the district court
    may have denied his request for a downward departure because
    it misunderstood the nature of one of his prior convictions
    and that the court erred in assigning criminal
    history points to that and certain other prior convictions.
    We have no jurisdiction to review the discretionary denial
    of Zuniga-Lazaros departure motion; and although the
    court did err in assigning criminal history points to one of
    his prior convictions, we are satisfied that the error had no
    impact on the sentencing decision. We therefore affirm the
    sentence.

    Posted by Marcia Oddi on Wednesday, November 03, 2004
    Posted to Indiana Decisions

    Indiana Courts - Judges retained or reelected

    Reports today of Indiana judges retained or relected include the following.

    Indiana Court of Appeals. The Indianapolis Star reports:

    Judge John T. Sharpnack on Tuesday won another 10-year term on the Indiana Court of Appeals bench. With nearly three-fourths of the statewide vote counted, 68 percent of Hoosier voters answered "yes" to a retention question asking whether he should continue in office. No appointed appellate judge in Indiana has ever been defeated in a retention election.
    But I can confirm that hundreds of people searched the internet to obtain information about Judge Sharpnack before going to the polls. My website provides me with a list of the search words that pulled up entires from my blog (the source of the request is not identified). For weeks before the election and then in the hundreds this Monday and Tuesday, people's searches involved "Judge Sharpnack".

    Lake County. The Munster Times reports today, in a story headlined "Voters retain seven judges: Danikolas kept on bench, despite county bar group recommendation to the contrary.":

    Despite the recommendation from Lake County lawyers that voters kick Lake Superior Court Civil Division Judge James Danikolas off the bench, voters retained him Tuesday.

    Also retained were six other judges: Circuit Court Judge Lorenzo Arredondo; Superior Court judges William E. Davis, John R. Pera, Robert A. Pete and Diane Kavadias Schneider; and Criminal Court Judge Thomas P. Stefaniak.

    Those receiving more than 50 percent of the vote win six new years in office. The losers are replaced by new gubernatorial appointees.

    In a Lake County bar association survey released last month, 60 percent of the lawyers who practiced before Danikolas said he should be voted off the bench. The bar association last recommended voters not retain a judge in 2000, when the group told voters not to retain Lake Criminal Court Judge Joan Kouros.

    Delaware Circuit Judge.The Muncie Star-Press reports:
    MUNCIE - In one of Delaware County's most bitterly contested campaigns, Delaware Circuit Court 1 Judge Marianne Vorhees defeated Republican attorney Jeffrey Arnold in Tuesday's election. * * *

    The judicial race was marked by a couple of high-profile clashes in late summer and early fall.

    In September, a local union official distributed a letter criticizing Arnold's status as a conscientious objector in the Vietnam War era. The man denied having circulated the letter at the request of Vorhees's campaign, but Vorhees did not disavow the issue.

    In October, The Star Press reported that Vorhees's bailiff, former sheriff Steve Aul, had met with the victim in long-dormant stalking case. The woman secretly tape recorded Aul's comments, in which he encouraged her to go public with her complaints about the handling of the 2001 case, in which Arnold had been deputy prosecutor. * * *

    Hamilton County. The Indianapolis Star reports today: "Democratic judge's bid fails in GOP stronghold: Kernan appointee had campaigned for election to seat on judicial bench; Westfield chooses to become a city." Some quotes:
    NOBLESVILLE, Ind. -- A Democratic judge's bid to win election proved to be a task too difficult to achieve Tuesday in the state's most Republican county.

    Bernard L. "Buddy" Pylitt had hoped to become the first Hamilton County Democrat in more than 40 years to be elected as judge, but returns available at 11:30 p.m. indicated the voters had chosen his opponent, Republican Dan Pfleging, in resounding fashion. Pfleging, who had a significant lead, is the county's magistrate. * * *

    Democratic Gov. Joe Kernan appointed Pylitt in January after longtime Republican judge Jerry Barr resigned. Pylitt became just the third Democrat to serve as judge in Hamilton County and the first since 1958.

    "While I'm disappointed, it's been a great year," Pylitt said. "It's too bad the people of Hamilton County didn't look at my experience and just pulled the Republican lever. It looks like that's what happened."

    Posted by Marcia Oddi on Wednesday, November 03, 2004
    Posted to Indiana Courts

    Indiana Decisions - Court of Appeals posts two today

    Kevin Ware v. State of Indiana (11/3/04 IndCtApp) [Criminal Law & Procedure]
    Riley, Judge

    Appellant-Defendant, Kevin Ware (Ware), appeals his convictions for sexual misconduct with a minor as a Class B felony, Ind. Code 35-42-4-9(a)(1); and sexual misconduct with a minor as a Class C felony, I.C. 35-42-4-9(b)(1). * * *

    Based on the foregoing, we conclude that the State presented sufficient evidence to sustain Wares convictions. Further, we find that Ware is not entitled to a new trial because of the erroneously-admitted evidence of extra-jurisdictional acts. As to Wares sentence, however, we affirm in part and reverse in part, concluding that although Wares sentence is not inappropriate, the restitution costs imposed by the trial court constitute fundamental error. We therefore remand with instructions to the trial court to determine the cost of any counseling S.H. received before the time of sentencing as a result of Wares crimes.
    Affirmed in part, reversed in part, and remanded.
    CRONE, J., and VAIDIK, J., concur.

    Alan Wickliff v. State of Indiana (11/3/04 IndCtApp) [Criminal Law & Procedure]
    Opinion on Rehearing
    Robb, Judge
    Alan Wickliff petitions for rehearing on Wickliff v. State (Ind. Ct. App., July 28, 2004). In that memorandum decision, we held that Wickliffs enhanced and consecutive sentences totaling twenty-three years were not inappropriate in light of the nature of his offense and his character. Wickliff entered a plea of guilty to operating a vehicle while intoxicated resulting in death with a prior offense within five years, a Class B felony, and possession of marijuana in excess of thirty grams and possession of marijuana with a prior conviction, both Class D felonies. On rehearing, pursuant to the recent United States Supreme Court case Blakely v. Washington, 124 S. Ct. 2531 (2004), Wickliff contends that his sentence violates the Sixth and Fourteenth Amendments because he was provided no notice of the aggravating circumstances and none were submitted to a jury or proved beyond a reasonable doubt. * * *

    As to Wickliffs criminal history as an aggravating circumstance [the Court here cites Caron v. State:] [T]he multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely.

    As to the aggravating factor that a sentence less than an enhanced sentence would depreciate the seriousness of the crime, the trial court specifically noted it was based upon Wickliffs own testimony at his sentencing hearing regarding the nature and level of his addiction to and abuse of alcohol, prescription drugs, and marijuana. Because these facts were admitted by Wickliff, they, too, are exempt from the Apprendi/Blakely rule. Whether or not Indianas sentencing scheme runs afoul of the Sixth Amendment, Wickliffs sentence would not be affected because even a single valid aggravating circumstance is sufficient to justify enhancement of a sentence. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Here, there were two valid aggravating circumstances identified by the court justifying enhancement of Wickliffs sentence.

    Petition for rehearing granted; Wickliffs sentence is affirmed.
    SHARPNACK, J., and DARDEN, J., concur.

    Posted by Marcia Oddi on Wednesday, November 03, 2004
    Posted to Indiana Decisions

    Tuesday, November 02, 2004

    Indiana Law - Gaps in Indiana election law?

    "Judgment Day" is the headline to this story about the disputed Indiana House District 46 race that appears in the Terre Haute Tribune-Star today. Some quotes:

    "This is definitely the worst election I have been through because we did not know day to day who was on the ballot in [House] District 46," Mansard said. "The second worst election was when write-in voting was allowed in the early 1990s and we were forced to work through the night until 5:30 a.m. the next morning looking over ballots for write-in candidates."

    With confusion over the ballot, the Vigo County Election Board was forced to spend $35,600 to obtain new ballots and reprogram the county's optical scan voting machines, Mansard said. The county staged a public testing of its automated tabulating equipment Monday in the Vigo County Courthouse. * * *

    "Election administration is a very exacting and complicated procedure that is always stressful. Then to add to that stress, not knowing from day to day whose name is to be on the ballot in the 46th District and trying to plan for every eventuality has been a terrible dilemma," Mansard said.

    Mansard served as county clerk from 1989 to 1996. She then served as chief deputy clerk under her husband, Bill Mansard, who served as county clerk from 1997 until his death on Oct. 31, 2003. Pat Mansard was then appointed to fill out his term in a Democrat party caucus. She seeks re-election today, unopposed.

    Mansard said she would like the Indiana General Assembly to make election law more comprehensive "that doesn't allow for this kind of chaotic activity in administering elections."

    The clerk is referring to gaps in state election law, contested in [Jeff] Lee's removal from the ballot. State law covers candidate withdrawals 30 days before an election or at least three months before an election, yet is not precise in directions for withdrawals at other times.

    Posted by Marcia Oddi on Tuesday, November 02, 2004
    Posted to Indiana Law

    Indiana Decisions - 7th Circuit posts three today

    USA v. Arnold, Terrell* (ND Ind., Rudy Lozano, Judge)

    Before CUDAHY, RIPPLE, and WOOD, Circuit Judges.
    WOOD, Circuit Judge. Terrell Arnold, Jr., pleaded guilty to possession of a firearm by a felon under 18 U.S.C. 922(g)(1) pursuant to a conditional plea agreement. Under the plea agreement, he reserved his right to challenge on appeal the district courts denial of his motion to suppress under the Fourth Amendment evidence seized during the search of his car. Arnold contends that the police officer at the scene, Officer Shawn Ford, exceeded the scope of a protective search when after a traffic stop he pulled down the armrest in the back seat, which opened into the trunk, and found a loaded revolver. Arnold also argues that the officers actions cannot alternatively be characterized as part of a valid inventory search. Because we conclude that the search did not exceed the bounds of a protective search, we affirm the district courts judgment. * * *
    _____
    *This decision was initially released on October 4, 2004, as an unpublished order. By the courts own motion, it is being reissued as a published opinion.
    Commonwealth Insur v. Titan Tire Corp (CD Ill.)
    Before MANION, ROVNER, and WOOD, Circuit Judges.
    MANION, Circuit Judge. Following a $55 million settlement of a Texas case involving eight deaths allegedly caused by a defective tire, the two tire companies involved sued each other, claiming breach of an indemnity agreement. The claims were eventually tried in the Central District of Illinois, which had diversity jurisdiction over the matter. Pirelli Tire, LLC won a jury verdict for the underlying trial expenses and attorneys fees against Titan Tire Corporation in the amount of $259,775.98, which included interest. On appeal, Titan challenges a key jury instruction ruling by the district court as well as several other district court rulings that affected the trial proceedings. We affirm in part and reverse in part.
    Yanez-Garcia, Ismael v. Ashcroft, John (On Petitions for Review of Orders of the Board of Immigration Appeals)
    Before KANNE, ROVNER, and EVANS, Circuit Judges.
    ROVNER, Circuit Judge. Ismael Yanez-Garcia and Nir Masok are permanent resident aliens, each of whom has pleaded guilty in Illinois state court to possession of cocaine. The Board of Immigration Appeals concluded that this offense qualified as a drug trafficking crime, and therefore as an aggravated felony, rendering Yanez and Masok ineligible for cancellation of removal. Each of them filed a petition for review, asking us to overturn the BIAs conclusion that a single possession offense can qualify as a drug trafficking crime. This calls for us to address the meaning of drug trafficking crime, which is defined as any felony punishable under federal drug laws. Specifically, we are asked to decide whether the term applies to drug crimes that are felonies under state law but only misdemeanors under federal law. However, the jurisdiction-stripping provisions of the Immigration and Nationality Act make it impossible for us to do so on direct review. We must therefore transfer this case to the district court for consideration as a petition for habeas corpus. * * *

    The parties shall confer and submit a joint statement within 10 days identifying the appropriate district to which these cases should be transferred.

    Posted by Marcia Oddi on Tuesday, November 02, 2004
    Posted to Indiana Decisions

    Law - More news about Chief Justice Rehnquist's illness

    Jan Crawford Greenburg of the Chicago Tribune reports, in a story today headlined "Cancer to keep justice off bench indefinitely," that:

    Chief Justice William Rehnquist said Monday that he was receiving radiation and chemotherapy treatments for his thyroid cancer and would not be returning to the Supreme Court as soon as he had planned, indicating he may have one of the more aggressive forms of the disease and raising questions about his future on the court.

    Rehnquist said in a written statement that his doctors had told him his initial plan to return to the court Monday was "too optimistic." He said he would work on court matters at his home and stay in close contact with the other justices, law clerks and the court's staff. He gave no indication of when he might be able to return to the bench.

    Posted by Marcia Oddi on Tuesday, November 02, 2004
    Posted to General Law Related

    Indiana Courts - Courthouse stories today

    "First step of Vigo County Courthouse's $8.5M renovation to begin Saturday" is the headline to this story in the Terre Haute Tribune-Star. It begins:

    Work is expected to start Saturday on the removal of about 65 tons of documents, shelves and file cabinets from the fifth floor of the Vigo County Courthouse.

    It's the first step in an $8.5 million renovation of the interior of the 19th century structure.

    The fifth floor has housed records since the 1880s, with some records dating back to the 1830s. Vigo County commissioners last week signed a contract with First Financial Bank to lease the former Terre Haute Engraving building at 600 Wabash Ave.

    And the health problems at the Morgan County Courthouse in Martinsville may soon be under control, according to this story in the Indianapolis Star with the headline "County OKs courthouse fixes: Commissioners accepting bids for 17 repairs." Some quotes:
    Morgan County workers will stay in temporary quarters inside the administration building for a couple more months as county leaders attempt to clear the air in the courthouse.

    County Commissioners agreed Monday to seek bids for a laundry list of repairs to eliminate the foul air that has made employees sick inside the courthouse.

    "I had originally hoped to have it all done by Christmas," said County Commissioner Norman Voyles. "But that just won't be possible now because of all the bids we will need to get. It will take until some time after the first of the year."

    Voyles provided a list of 17 alterations, including cleaning and replacing heat pumps, ducts and air filters and repairing damaged walls and ceiling tiles.

    Posted by Marcia Oddi on Tuesday, November 02, 2004
    Posted to Indiana Courts

    Indiana Law - Indiana's two sets of electoral college representatives await returns

    This AP story, headlined "Hoosier Electoral College members stand ready," appears today in the Louisville Courier-Journal. A quote:

    BLOOMINGTON, Ind. Twenty-two Indiana voters will be watching today's presidential election with an interest most other people don't share because, depending on who wins, they could get to vote for president again.

    The 22 11 Democrats and 11 Republicans are Indiana's representatives in the Electoral College. The half who belong to the party whose candidate wins will cast the state's 11 electoral votes once the secretary of state has certified the election results, likely in December.

    Electors one from each congressional district and one for each of the state's two U.S. senators are usually chosen at each party's state convention.

    Posted by Marcia Oddi on Tuesday, November 02, 2004
    Posted to Indiana Law

    Law- U.S. Supreme Court to hear domestic violence case

    "Court Will Rule on Town's Liability in Family Violence" is the headline to this story today by Charles Lane in the Washington Post. Some quotes:

    The Supreme Court announced yesterday that it will decide whether victims of domestic violence have a constitutional right to sue local governments that fail to protect them from abusers. Without comment or recorded dissent, the court said it would hear an appeal from a Colorado town accused of refusing to enforce a restraining order against a violent father who eventually killed his three children.

    The town, Castle Rock, seeks to overturn a federal appeals court ruling that found it liable because it had not given the children's mother adequate notice of its non-enforcement or a chance to plead her case.

    Castle Rock, supported by the International Municipal Lawyers Association and the National League of Cities, contends the Supreme Court must overturn that ruling to prevent a "potentially devastating" flood of lawsuits that "could bankrupt municipal governments . . . given the inevitability of less-than-perfect enforcement."

    Attorneys for the mother had urged the court to leave the ruling alone, saying that it "reflect[ed] a very fact-specific issue that is unlikely to recur frequently."

    The case is a sequel to one of the most emotion-laden cases in recent Supreme Court history, 1989's DeShaney v. Winnebago County, in which the justices ruled, 6 to 3, that a brain-damaged Wisconsin boy, Joshua DeShaney, and his mother could not sue local authorities who knew that the boy was being beaten by his father but did not stop the beatings. * * *

    In the case the court agreed to hear yesterday, Castle Rock, Colo. v. Gonzales, No. 04-278, Jessica Gonzales is suing Castle Rock for allegedly failing to enforce a restraining order that barred her estranged husband, Simon Gonzales, from visiting their three children except at specified times. * * *

    Earlier this year, the Denver-based U.S. Court of Appeals for the 10th Circuit, sitting as a full 11-member panel, ruled that Jessica Gonzales can press a constitutional claim against Castle Rock in federal court.

    In a 6 to 5 ruling, the appeals court acknowledged that the Supreme Court's ruling in DeShaney bars any claim based on a right to be protected by local authorities. But the 10th Circuit said the restraining order against her husband gave Jessica Gonzales a strong enough expectation of government protection that she had a due-process right at least to be told in advance if the town was not going to enforce it.

    Linda Greenhouse of the NY Times also has good coverage of this grant today. Some quotes:
    The lower courts have confronted the question numerous times in recent years and have produced conflicting answers. In the case the justices accepted, the United States Court of Appeals for the 10th Circuit, in Denver, voted 6 to 5 to permit the woman's lawsuit, against the town of Castle Rock, Colo., to proceed to trial. The federal district court in Denver had dismissed the suit, in which the plaintiff, Jessica Gonzales, is seeking $30 million in compensatory damages and millions more in punitive damages.

    Colorado law makes it mandatory for the police to provide protection once a protective order is issued. "A peace officer shall use every reasonable means to enforce a protection order," the state law provides. In addition, the law requires the police to make an arrest if they have probable cause to believe that such an order has been violated. Many other states have similar laws.

    The appeals court's majority reasoned that the law gave Colorado residents a vested right to receive a particular government service, police protection, that cannot be withheld without procedural safeguards intended to prevent the government from acting in an arbitrary way.

    The case will require the Supreme Court to revisit a doctrine articulated by Chief Justice William H. Rehnquist in a well-known case from 1989, in which a county social services department in Wisconsin was found not to have breached a constitutional duty when it returned a young boy to an abusive father and then failed to monitor his safety. That decision, DeShaney v. Winnebago County, established the rule that the government is not ordinarily obliged to protect people from harm at the hands of their fellow private citizens.

    The DeShaney opinion was based on a branch of constitutional analysis known as "substantive due process." The 14th Amendment bars the states from depriving "any person of life, liberty, or property" without due process, and the substantive due process question asks whether the challenged government action has violated any of those three guarantees. "Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors," Chief Justice Rehnquist said in his opinion.

    The 14th Amendment also has a procedural component: even if the state has a permissible reason for impinging on the amendment's substantive protections, it must use due process proper procedures in doing so. In the DeShaney case, Chief Justice Rehnquist said the question of whether the county had used proper procedures in its care for the child had not been properly presented to the court. Consequently, the ruling has been interpreted by some lower courts as not foreclosing a procedural ruling in a future case.

    That was the approach the 10th Circuit took in the new case, Town of Castle Rock v. Gonzales, No. 04-278. The majority said Ms. Gonzales had presented a plausible case that the police had failed to follow proper procedure in disregarding her repeated requests for help after her husband had kidnapped the three girls - ages 7, 9 and 10 - from the yard of their house on the afternoon of June 22, 1999.

    Check here for links to the lower court opinions in Castle Rock, CO v. Gonzales, Jessica, et al.

    Posted by Marcia Oddi on Tuesday, November 02, 2004
    Posted to General Law Related

    Monday, November 01, 2004

    Indiana Law - District 46 and the separation of powers

    An attorney with long legislative experience writes to say:

    I believe there will be no more HD 46 court proceedings (or at least there shouldn't be). Article 4, Section 10 places resolution of any more controversy about this election in the Indiana House of Representatives.
    Article 4, section 10 provides:
    Section 10. Each House, when assembled, shall choose its own officers, the President of the Senate excepted; judge the elections, qualifications, and returns of its own members; determine its rules of proceeding, and sit upon its own adjournment. But neither House shall, without the consent of the other, adjourn for more than three days, nor to any place other than that in which it may be sitting.

    Posted by Marcia Oddi on Monday, November 01, 2004
    Posted to Indiana Law

    Indiana Law - Holy Cross Village locked in tax dispute: St. Joseph County denies bid for exempt status, citing income

    The South Bend Tribune has a very long and really interesting story today on the issue of whether/when real estate owned by a religious institution is subject to the state property tax. Some quotes:

    SOUTH BEND -- Long ago, the brothers of Holy Cross knew they were sitting on a lucrative piece of property.

    They had 38 acres of vacant property just north of Holy Cross College worth millions of dollars.

    Challenged by retirements in the ranks, rising health care costs and increasing demand for their services, the brothers looked for a way to cash in and support retired brothers and the religious order's overall mission.

    The answer became Holy Cross Village at Notre Dame: a tidy, peaceful subdivision of villas, duplexes, four-plexes and apartments that would be doted on by the brothers.

    Focusing on senior citizens and retirees, the village is similar to other developments at colleges and universities around the nation.

    Better yet, the property was tax-exempt. So the dwellings should be tax-free, too, the brothers surmised.

    They were apparently wrong.

    Last year, the St. Joseph County Property Tax Assessment Board of Appeals denied the brothers' request for a tax exemption for the village, saying the development is "income-producing."

    The brothers received a $52,000 property tax bill last year. They may see a similar or even larger tax bill this year.

    County officials questioned whether the brothers' development truly fell under the "charitable or educational" category they checked off on their tax-exemption application. * * *

    The issue now sits before the Indiana Board of Tax Review, and it could be a precedent-setting case. No hearing date has been set.

    Attorneys for the brothers argue the village is tax-exempt because it's listed in the 2002 official Catholic directory, and because of two recent court decisions that defend the tax-exempt status of such dwellings.

    One of the cases overturned the denial of a tax exemption by the same St. Joseph County appeals board. * * *

    Posted by Marcia Oddi on Monday, November 01, 2004
    Posted to Indiana Law

    Indiana Law - Commentary on District 46 election dispute

    A column I just read by Peter Ciancone of the Terre Haue Tribune-Star contains some interesting observations that begin (scroll down about half-way through his column):

    The oddest thing about the legal brawl over Indiana House District 46 is how little it seems to have been noticed outside the area. [my emphasis] Not only could this one seat be the deciding influence over which party controls the Indiana House, but it's a genuinely interesting situation that illustrates just how gray this old black-and-white world can often be.

    At the end of a seemingly endless series of hearings in four different courts -- it has been suggested that somebody involved violate a Terre Haute city ordinance so we can get city court involved, too -- the long and short of it is this: The Indiana Court of Appeals isn't going to deal with the questions until an undetermined point after the election.

    What this may mean is clear as mud, unless you talk to the attorneys representing the two sides, of course. Republicans cheer the decisions as the right move to allow the voters to decide the issue, not the courts. Democrats say the whole thing is simply a maneuver by Republicans to get a losing candidate off the ballot. * * *

    Posted by Marcia Oddi on Monday, November 01, 2004
    Posted to Indiana Law

    Law - For Sartorial Style, D.C.'s Power Brokers Find Tailored Suits Befit Their Needs

    Law? Well, kind of. Many of the men mentioned in this Washington Post article today are lawyers. Some quotes:

    Ken Duberstein, uber-lobbyist and former chief of staff for President Ronald Reagan, swept into a second-floor room at the Jefferson Hotel, resplendent in monogrammed cuffs and Hermes tie, looking for the perfect suit.

    The search for this exquisite instrument began discreetly off an elevator reached through the hotel's restaurant. Upstairs, in less than a half-hour, Duberstein ordered a hand-cut, handmade custom suit from Simon Cundey, managing director of Henry Poole & Co., one of the founding tailors on London's Savile Row.

    Cundey tended to 15 customers over two days last month, almost all based on references or word of mouth. Most were lawyers, foreign diplomats and other accomplished men in middle age who recently slipped into the hotel for timed appointments of no more than 40 minutes, like a low-key, high-powered lunch at a private club.

    If Washington's uniform is the suit, the ultimate expression of power is the hand-cut, handsewn, custom suit. Among Washington aristocracy, few admit publicly to the extravagance. But they're flattered when peers notice a perfect fit, a smooth line, a good fabric, and they make recommendations confidently, like introducing a friend to a special fraternity. * * *

    In the competitive world of custom tailoring, in which tailors charge $2,500 and more and get snippy about their competitors, the stereotype of the rumpled politician seems to have been folded up and stuffed in the back of a closet.

    "In Washington, things have to be well-suited, literally and figuratively," said Duberstein, clad in a navy chalk-striped suit and a crisp blue shirt with white collar. "This gives you the elegance, the style, the conservative dress that speaks volumes about where you've been and what you're all about." * * *

    Washingtonians are quick to claim their sartorial conservatism. This isn't Wall Street. No Washingtonians made the final cut this year for Esquire magazine's best dressed men in the world (politicos who did make it included San Francisco Mayor Gavin Newsom and the just-reelected Afghanistan president and fashion plate, Hamid Karzai). * * *

    Over the years, Henry Poole & Co. has collected about 200 customers in Washington, Cundey said. Some come to the Jefferson to choose fabrics. Others meet him for trunk shows and fittings in New York twice a year. Henry Poole suits, worn by tastemakers from Napoleon Bonaparte to Winston Churchill, start at $3,600. * * *

    Photographs of Sauro's well-known clients decorate his shop. Among them are former presidents Richard M. Nixon, Reagan and George H.W. Bush, and President Bush. One recent photo shows Sauro in the White House private residence, measuring the current president before altering one of his suits.

    Men in my day didn't really pay much attention to what they wore," said Sauro, who still does alterations. "Now, they take better care of their bodies."

    Ambassador Randall L. Tobias, appointed by President Bush to coordinate federal efforts to combat HIV/AIDS, was originally fitted by Henry Poole & Co. more than a decade ago and rarely has to try suits on because he stays in shape.

    "If my suits start not fitting, then I know I'm gaining weight," said Tobias, a former chief executive of pharmaceutical giant Eli Lilly who ordered three suits in 15 minutes at the Jefferson Hotel.

    "I've become very comfortable with the particular design of suit that I like to wear, and every suit is identical," said Tobias, whose gray suit was so well-cut the tools of his craft -- wallet, business cards, PDA -- were invisible. "When I open the jacket, there's a pocket for my BlackBerry and there's a pocket for my cell phone. It's just easier."

    Mr. Tobias, of Indianapolis, is pictured in the story.

    Posted by Marcia Oddi on Monday, November 01, 2004
    Posted to General Law Related

    Law - Justices Too Tightlipped on Their Health?

    "Justices Too Tightlipped on Their Health?" is the question posed today in this article by Charles Lane in the Washington Post. Some quotes:

    The tradition was born in the days before the court played a central role in policymaking. But now, when the court has a role in everything from whether race can be considered in college admissions to the outcome of the 2000 presidential election, some are saying that tradition has to change.

    Posted by Marcia Oddi on Monday, November 01, 2004
    Posted to General Law Related

    Indiana Decisions - One new decision posted today by Court of Appeals

    K.S. v. State of Indiana (11/1/04 IndCtApp) [Opinion on Rehearing]
    Barnes, Judge

    The State has filed a petition for rehearing requesting that we reconsider our decision in K.S. v. State, 807 N.E.2d 769 (Ind. Ct. App. 2004). We grant the petition to acknowledge the States contentions, but we reaffirm the result reached in our first opinion. * * * We grant the States petition for rehearing but reaffirm our original decision, subject to the above comments.
    KIRSCH, C.J., concurs.

    FRIEDLANDER, J., concurs in part and dissents.
    I agree with the decision to grant the States petition for rehearing, but not for the purpose of clarifying our original decision to reverse the delinquency finding. Rather, I would grant rehearing for the purposes of reversing our earlier decision and affirming the delinquency adjudication in all respects. For the reasons set out in a recent case authored by this writer, I believe the challenge raised here by K.S. was to the juvenile courts jurisdiction over K.S.s particular case. See M.B. v. State, No. 49A02-0401-JV-94 (Ind. Ct. App. September 17, 2004). As explained in M.B., the failure to challenge this jurisdictional element at the earliest opportunity waives the issue for appellate review. I would reverse our earlier decision and affirm the juvenile court in all respects.

    Posted by Marcia Oddi on Monday, November 01, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts three

    Mamedov, Jannet v. Ashcroft, John D. (On Petitions for Review of an Order of the Board of Immigration Appeals)

    Before POSNER, KANNE, and WOOD, Circuit Judges.
    POSNER, Circuit Judge. The Mamedov family was ordered removed after its claim for asylum was rejected. The family comes from Turkmenistan, one of the formerly Soviet republics in central Asia, like the better known Kazakhstan and Uzbekistan. The overwhelming majority of its people are Turkmens of the Muslim faith. Jews are distinctly unpopular, and only about a thousand remain. Ahmed Mamedovs father was a Turkmen, presumably Muslim although this is not certain, but Mamedovs mother was Jewish and he was raised as a Jew. * * * At their asylum hearing the Mamedovs submitted affidavits from seven refugees from Turkmenistan who are in mixed marriages and who have been granted asylum in the U.S. The affidavits describe firings and beatings. * * *

    As in a number of recent cases, the opinion by the immigration judge, whose denial of asylum the Board of Immigration Appeals affirmed without issuing its own opinion, is unreasoned. [cites omitted] But here we note a further problem that we had not heretofore been aware of. Immigration judges characteristically
    issue oral rather than written opinionsthat we knew and while it is not an ideal practice, it is common enough even among federal district judges and we do not wish to suggest that it is irregular. The wrinkle is that no copy, either paper or electronic, of the opinion is given to either the parties or the immigration judge until and unless the alien files a notice of appeal to the Board of Immigration Appeals.

    The copy of the opinion that appears in the appendix to the petitioners brief in this court contains handwritten corrections, evidently by the judge. The copy is not dated. The notice of appeal had to be and was filed within 30 days of the rendition of the immigration judges oral opinion and order, but we do not know how long after that the judge edited the opinion. Most of his changes are purely technical, but where the transcribed opinion states that it is unclear that the attack [by the police on Mamedov] was based solely on the fact that the respondents mother possessed a Jewish nationality, the immigration judge wrote in, after solely, or in [sic] even partially.

    That was a substantive change, and there is no indication that the immigration judge was merely recalling a passage from his oral opinion that had somehow not been transcribed. Rewriting an already issued opinion when the author later
    discovers that there is going to be an appeal invites criticism similar to that leveled against the use of nunc pro tunc orders to rewrite history. * * *

    For these reasons [many not listed in this ILB summary], the Boards order is set aside and the case remanded.

    USA v. Jaffe, Sherman (ND Ill.)
    Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
    EVANS, Circuit Judge. With personal and financial problems mounting, attorney Sherman Jaffe admittedly showed poor judgment when he financed the purchase of a Chicago property with a fraudulently obtained mortgage loan of more than $60,000 for a property worth just $25,000. The key question in this case is whether Jaffe, who specialized in real estate law for some 30 years and had a real estate brokers license, merely showed bad judgment by blindly taking the advice of a client, Theresa Holt, or whether his mistake was knowingly participating in Holts scheme to defraud a mortgage lender. Because we find sufficient evidence to support the jurys conclusion that Jaffe knew what he was getting into, we affirm his conviction.
    Sartor, Carolyn D. v. Spherion Corporation (ND Ill.)
    Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Carolyn Sartor, an African-American woman, filed suit against Spherion, her former employer, alleging intentional discrimination on the basis of sex and race. The district court granted summary judgment in favor of Spherion. * * *

    Sartor has failed to bring forward evidence that a similarly-situated employee was treated more favorably than she. As a result, she has failed to establish a prima facie case of intentional discrimination on the basis of sex or race. The decision of the district court granting summary judgment to Spherion is therefore AFFIRMED.

    Posted by Marcia Oddi on Monday, November 01, 2004
    Posted to Indiana Decisions