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Friday, December 31, 2004

Indiana Government - Daniels names Indianapolis man to fill INDOT spot

Governor-elect Daniels today appointed Thomas A. Sharp as Commissioner of the Indiana Department of Transportation. Here is the brief Indianapolis Star story posted this afternoon. Here is the Daniels press release.

Here is the updated ILB organization chart for the new administration.

[Update 1/1/05] Today's Indianapolis Star has an expanded story about the Sharp appointment on its front page.

Posted by Marcia Oddi on Friday, December 31, 2004
Posted to Indiana Government

Law - Helping to explain why the term is "public servant"

Remember the entry Dec. 21st quoting a Louisville Courier Journal article about their Attorney General's ruling that public officials must actually try to locate records requested by the public rather than simply ignoring requests? A quote from the LCJ:

Public agencies cannot simply claim records do not exist and they must make a realistic effort to search for them in response to requests under the Kentucky Open Records Law, the attorney general's office said in an opinion released Monday.

Agencies cannot require those requests be made on specific forms. So long as requests include the legible name, a signature and a description of the records, they must be honored, the opinion said.

Well, topping that is this story today from the LA Times, reporting on a California Court of Appeals ruling that "city council members must actually listen when their constituents make official appeals before them." Some quotes from the story:
It all began with the Blue Zebra, a strip club in East Los Angeles.

The owner wanted dancers to keep gyrating past the 2 a.m. closing time. The city's zoning administrator gave his assent. Neighbors objected. And the matter wound up on appeal before the Los Angeles City Council.

When the Blue Zebra's attorney, Roger Jon Diamond, and other interested parties addressed the council, most members paid little attention, as shown on a videotape that Diamond made.

In a sharply worded, six-page decision published Thursday, the state's 2nd District Court of Appeal ruled that the behavior of council members violated the Blue Zebra's right to be heard and ordered the council to hold a new hearing.

"A picture is worth a thousand words," the three-judge panel concluded. "A fundamental principle of due process is 'He who decides must hear.' The inattentiveness of council members during the hearing prevented the council from satisfying that principle." * * *

Diamond's complaint is a common one about Los Angeles City Council members, who until a few years ago even sat with their backs to the public.

Though they now position their comfy leather chairs to face the hard wooden benches set out for the public, many members use their thrice-weekly meetings to read their mail, catch up with one another, make travel arrangements on their laptops or pen a few lines of poetry. * * *

The decision applies to council members only when they are acting in a judicial capacity; when they are passing laws or handing out proclamations, they can be as rude as they please.

The judges stated, "We do not presume to tell the City Council how it must conduct itself as a legislative body" but noted that when making appeals, constituents have a right to "courteous treatment."

The 12/30/04 decision, Lacy Street Hospitality Service v. City of LA, is available here.

Posted by Marcia Oddi on Friday, December 31, 2004
Posted to General Law Related

Indiana Courts - New jury rules draw comment

Two pieces today on various of the changes in Indiana jury rules that will take effect January 1, 2005.

"Jurors given green light to gab: Rule change allows discussions before deliberation" is the headline to this story today in the Munster Times. Some quotes:

Denying jurors the opportunity to sort through evidence with each other while it is still fresh in their minds does not make a lot of sense to Clay County Circuit Court Judge Ernest Yelton, who pushed for a change that will take place today.

Jurors in state criminal and civil cases now will be allowed to discuss evidence prior to deliberating, he said, as long as they are all present and don't arrive at a verdict until all the evidence is in. * * *

The proposal was approved this past fall by the Indiana Supreme Court after failing to win approval with 30 other jury changes that took effect at the beginning of 2003, Yelton said. The changes, which opened the door for jurors to take notes and ask questions during trials, grew out of a two-year study.

Making juries ananymous" is the headline to an editorial today in the Fort Wayne Journal Gazette. Some quotes:
An Indiana Supreme Court rule that takes effect next week goes too far in protecting juror identity. The justices may have meant well when writing it, but the rule to forever seal juror identities places a shroud on a system that works best when all of the participants are open to inspection from the outside. * * *

The juror privacy provision does not restrict information obtained in open court. However, in Allen County and some other counties, jurors are referred to publicly by number, not name, thus further muddling public access. * * *

The new rules were designed to protect jurors from harassment. Juror safety is vital to the judicial system, but not to the subordination of the public’s greater interests.

Why should anyone care about this issue? The new jury privacy decree affects journalists, historians, advocates, researchers and anyone else who may want to ask jurors how a decision was reached. It is conceivable that jury tampering or a previously unknown connection between a juror and key player may not be revealed until an outside investigator lifts the veil. Undoing private deceit brings about reform and keeps down public cynicism and apathy.

The ruling illustrates an astonishing lack of prudence on the state Supreme Court’s behalf for shoving the court’s machinery into the shadows where only the chosen few get to question efficiency and equity. Jurors may be private citizens, but they dispense justice – a public act with societal consequences.

No matter how good the intention, the jury privacy rule has an undesirable consequence: A cloak now covers a system that thrives best when transparent.

Hoosiers would be best served if the legislative and judicial branches work together on issues of public access to the courts.

This is not the first time the Journal Gazette has written about this rule change. An ILB entry from April 6, 2004 titled "Juror Secrecy in Indiana" quotes from a Journal Gazette editorial of that date. An ILB entry on the following day, April 7th, discusses the rule changes in detail and attempts to add context.

Posted by Marcia Oddi on Friday, December 31, 2004
Posted to Indiana Courts

Indiana Law - Last call for 2005 Indiana Law Blog Wish List suggestions

On Dec. 20th, I published a request for help in putting together a 2005 Indiana Law Blog wish list -- what the ILB would like to see for Indiana in the New Year. I included a copy of last year's list. Take a look. So far, I have received NO responses . . .

Posted by Marcia Oddi on Friday, December 31, 2004
Posted to Indiana Law

Indiana Government - Commentary on diversity in Daniels' appointments

Yesterday this Indiana Law Blog entry included quotes from a story in the Fort Wayne Journal Gazette on the paucity of women-appointees to high-level positions in the new Daniels' administration. Today the Journal Gazette has an editorial titled "Daniels and Diversity." Some quotes:

If initial appointments made by the governor-elect are any indication, state government in the next four years will look mostly like Mitch Daniels himself – white and male. Of 22 major appointments announced so far, only four are women, only two are black. There are no Hispanics. For a state with 6.2 million residents – 51 percent female, 9 percent black and 4 percent Hispanic – the dearth of minority and female appointments is troubling. * * *

The previous administrations, to be sure, were lacking in minority representation, but there was no shortage of talented, dynamic women. In addition to Lt. Gov. Kathy Davis, women headed the state budget office, the Bureau of Motor Vehicles, Department of Local Government Finance, Department of Environmental Management, Family and Social Services Administration and Department of Correction, and served as Kernan’s chief of staff.

Daniels’ appointments, by contrast, have even prompted questions about the authority of the few women named so far. Some are wondering, for example, how much of a role Fort Wayne’s Pat Miller will have as CEO of the state’s Economic Development Commission now that Indianapolis businessman Mickey Maurer has been named as its president.

Posted by Marcia Oddi on Friday, December 31, 2004
Posted to Indiana Government

Indiana Government - East Chicago transition is abrupt

East Chicago has a new mayor as of the election on Tuesday, Dec. 28. George Pabey readily defeated long-time mayor Robert Pastrick in a special court-ordered election following evidence of widespread corruption in the mayoral primary. (Type "Pabey" in the search box to retrieve numerous background ILB entries on this.)

A story in the Munster Times yesterday reported:

EAST CHICAGO | Fresh off Tuesday's special election victory and four days before his scheduled swearing in, East Chicago mayor-elect George Pabey took control of the city this morning without advance notice.

Pabey interrupted a scheduled 9:15 a.m. meeting of the East Chicago Board of Works to inform its members they should not call the meeting to order. Then attorney Carmen Fernandez, by virtue of being a Notary Public, gave Pabey the oath of office. East Chicago's new mayor then proceeded to fire a number of outgoing mayor Robert Pastrick's top aides and directed them to clear out their desks and leave the premises.

Pabey's attorney, Ned Ruff, said Special Judge Steven E. King's ruling gave the victor in Tuesday's general election the power to assume office upon the Lake County Board of Elections and Registration's certification of the voter tally. That certification took place Tuesday night.

Here are some quotes from a story today in the Munster Times describing the East Chicago transition in power:

EAST CHICAGO | After 32 years in office, former Mayor Robert Pastrick said he was "embarrassed" by the way he and top aides were unceremoniously driven from their offices.

After unexpectedly taking the oath of office Wednesday morning [Pabey's inaugural ceremony is set for this coming Sunday], new Mayor George Pabey interrupted a meeting of department heads at the mayor's office adjacent to City Hall, informed them they were fired and told them to leave. Pastrick, who had yet to arrive at his office, was called and told not to come into until later in the afternoon to clear out his office.

Although surprised at not being allowed to finished out the week, Pastrick wasn't holding it against Pabey. "George has been a gentleman and has shown me respect," Pastrick said.

However, Pastrick said some Pabey appointees have been "mean minded," but didn't name any specific instances. Pastrick said he felt sorry for those people who lost their jobs, saying they were very capable employees who may have deserved more consideration.

In the waning days of the administration, Pabey had complained about new vendor contracts and board appointments for key Pastrick allies. "I tried to protect some people," Pastrick said, adding that he believed the employees could not legally be fired without a valid reason.

Both stories are by Times correspondent Jim Masters.

Posted by Marcia Oddi on Friday, December 31, 2004
Posted to Indiana Government

Thursday, December 30, 2004

Indiana Decisions - Activist's trespass conviction reversed

"Activist's trespass conviction reversed" is the headline to a story today by Seth Slabaugh in the Muncie StarPress. The story reports on the Court of Appeals decision in Carol J. Blakney v. State of Indiana (12/23/04 IndCtApp), reported here last week in the ILB. [The Blakney decision is a companion to Abel A. Alves v. State of Indiana (10/12/04 IndCtApp), summarized in this ILB entry from October.] Some quotes from the beginning of today's StarPress story:

MUNCIE - The Indiana Court of Appeals has reversed the criminal trespassing conviction of environmental/animal rights advocate Carol Blakney.

Blakney and her husband, Ball State history professor Abel Alves, were convicted by a jury nearly a year ago of trespassing at the Seldom Rest confined-hog-feeding operation.

"I still don't feel 100 percent good about this because of what happened to Abel as a result of my activism," Blakney said Wednesday.

"Until they convicted us, we really didn't believe anyone was taking this seriously. It has taken us time to find out these people mean business."

Blakney called a prior ruling by the appellate court affirming her husband's conviction "bizarre."

[Update 12/31/04] Here is the AP report today on the story. A quote:
A neighbor of the farm's owners, William and Kaye Whitehead, testified that on Oct. 12, 2002, he saw Blakney behind the wheel of a car parked along a Delaware County road and Alves standing on a gate on which was posted a "No Trespassing" sign.

In its October ruling upholding Alves' conviction, the court found that while there was no evidence he opened or climbed over the gate, a "jury could have reasonably inferred that at least part of his body entered the air space" above the farm.

In reversing Blakney's conviction, appellate Judge Nancy Vaidik wrote that evidence showed Blakney did not enter the Whiteheads' property beyond the "No Trespassing" sign. Vaidak wrote that there was "insufficient" evidence for her conviction.

Blakney had filed a complaint in August 2002 against Seldom Rest with the Indiana Department of Environmental Management. That complaint led the state to accuse the Whiteheads of housing 150 hogs in an unpermitted barn and allowing manure from the barn to run into a ditch. The Whiteheads corrected the violations.

Kaye Whitehead, who is the Republican Party chairwoman in Delaware County, declined to comment on the reversal of Blakney's conviction.

But Judi Calhoun, the Delaware County deputy prosecutor who handled the case against Blakney and Alves, said the ruling erodes the rights of property owners to keep out trespassers.

The court's opinion said that if the Whiteheads did not want people to enter their farm between a county road and a "No Trespassing" sign posted on a gate 30 or 40 feet from the road, they should have posted the sign closer to the road.

"This means I no longer control my property if my sign is a few feet off the boundary," Calhoun said.

Posted by Marcia Oddi on Thursday, December 30, 2004
Posted to Ind. App.Ct. Decisions

Indiana Decisions - Three from Court of Appeals

Jose Zambrana v. Javier Armenta (12/30/04 IndCtApp) [Torts]
Friedlander, Judge

On November 10, 2003, after a two-day bench trial, the trial court found Jose Zambrana negligent for injuries sustained by Javier Armenta as the result of a shooting outside a bar Zambrana owned. The trial court assessed compensatory damages against Zambrana in the amount of $850,000.00. Zambrana presents several issues for review:
1. Did the trial court err in finding Zambrana liable for Armenta’s injuries?
2. Did the trial court err in its apportionment of fault under Indiana’s Comparative Fault Act?
3. Were the damages assessed against Zambrana excessive?
We affirm. * * *
DARDEN, J., and BAKER, J., concur.
State of Indiana v. Darrell Brown (12/30/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
Appellant-Plaintiff, the State of Indiana, appeals the trial court’s dismissal of Count I, intimidation, Ind. Code § 35-45-2-1, an act which would be a Class D felony if committed by an adult, as charged to Appellee-Defendant, D.B. We reverse and remand.

The State raises one issue on appeal, which we restate as follows: whether the trial court’s dismissal of the intimidation charge against D.B. on jurisdictional grounds was erroneous when the charge was connected to the carjacking charge already pending against the juvenile defendant. * * *

Based on the foregoing, we find that the trial court erred by dismissing the intimidation charge against D.B. on jurisdictional grounds when the charge was connected to the carjacking charge already pending against the juvenile defendant pursuant to I.C. § 31-30-1-4(a)(12). We reverse and remand to the trial court for further proceedings in accordance with this opinion.
CRONE, J., and ROBB, J., concur.

Kiel Brothers Oil Company v. Indiana Department of Environmental Management (12/30/04 IndCtApp) [Statutory Construction]
Bailey, Judge
Case Summary. Appellant-Plaintiff Kiel Brothers Oil Company, Incorporated (“Lessee”) appeals the trial court’s judgment in favor of Appellees-Defendants the Indiana Department of Environmental Management (“IDEM”) and the Office of the Indiana Attorney General (“Attorney General”). We affirm.

Issue. Lessee raises one issue, which we restate as whether the trial court erred by affirming the judgment of the Office of Environmental Adjudication (“OEA”), which concluded that Lessee was not entitled to third-party indemnification pursuant to Indiana Code Section 13-23-9-3. * * *

Pursuant to Indiana Code Section 13-23-9-3, to receive money from the ELTF, Lessee must submit a request for indemnification of a third party. Here, the alleged third party, i.e., Lessor, was a first-party claimant pursuant to Indiana Code Section 13-23-9-2, involving the same parties, contamination, and remediation expenses. Lessor cannot simultaneously be a first-party claimant and an “outside party” to the underlying circumstances of the present dispute. Because Lessor was a first-party claimant, it is not a third party for purposes of Indiana Code Section 13-23-9-3 and, thus, we find no error in the trial court’s judgment.

Moreover, we note that, pursuant to the lease agreement, Lessee paid the annual registration fees for the UST’s to the ELTF. During the leasehold period, Lessor did not pay any fees to the ELTF. Thus, for the three UST’s that are the subject of this dispute, the ELTF received only one annual registration fee, per UST in question, from Lessee. As such, the ELTF should only be responsible for reimbursing either Lessor or Lessee—i.e., the owner or the operator—for the remediation costs of the petroleum contamination.

For the foregoing reasons, we affirm the trial court’s judgment in favor of IDEM and the ELTF. Affirmed.
SHARPNACK, J., and MAY, J., concur.

Posted by Marcia Oddi on Thursday, December 30, 2004
Posted to Ind. App.Ct. Decisions

Indiana Decisions - 7th Circuit posts one today

Int'l Union Eng 139 v. J.H. Findorff & Son (ED Wis.)

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * Local 139 asserted that operating engineers, rather than laborers, should do any of the demolition work that required the use of skid-steer loaders. Findorff disagreed, and the dispute proceeded to arbitration. After hearing testimony about how skid-steer loaders are used, and which workers operate them at Findorff, arbitrator Neil Gundermann ruled in Findorff’s favor. * * *

The district court vacated the award. As the judge saw matters, the arbitrator had neglected the collective bargaining agreement’s plain language. * * *

The district judge did not doubt that Arbitrator Gundermann was construing this collective bargaining agreement rather than supplying a rule that he preferred to the parties’ agreement. Instead the judge applied a “plain-meaning exception” to the normal rule that an arbitrator’s power to decide includes the power to err. Apart from what the Supreme Court has had to say about the propriety of such an exception is the fact that what may seem “plain” to a judge is not necessarily plain to persons with greater experience in the business that the agreement is designed to cover. Arbitrators, often chosen because of their expertise in the industry, may see nuances that escape generalist judges. Persons steeped in the specialized language of a trade, or the business norms against which the language was written, often eschew “plain meaning” in favor of context, while generalists use a more text-bound approach because that is easier and less error- prone for outsiders. See generally Frederick Schauer, The Practice and Problems of Plain Meaning, 45 Vand. L. Rev. 715 (1992); Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231. * * *

Arbitrator Gundermann treated the skid-steer loader as a tool useful to many crafts rather than a job for one craft; that tracks how the parties themselves behaved. * * *

Using “plain meaning” to trump the understanding and practice of both parties to an agreement would do neither side a favor. Some practical leavening was needed; that’s why the parties gave the task to an arbitrator. * * *

The judgment is reversed, and the case is remanded for entry of a judgment enforcing the arbitrator’s award.

Posted by Marcia Oddi on Thursday, December 30, 2004
Posted to Ind. (7th Cir.) Decisions

Indiana Law - New laws take effect Saturday

A number of Indiana papers today are running this AP story by Mike Smith. The Indianapolis Star's headline is: "New laws take effect Saturday: 1 tightens food safety in eateries, day cares, schools; another targets 'predatory lending.'"

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

Indiana Government - More on most recent Daniels' appointees

Insurance Commissioner. Updating our report from yesterday (scroll down three) of Gov.-elect Daniels' appointment of Harold Calloway as insurance commissioner is this expanded story today in the Indianapolis Star.

The Evansville Courier&Press headlines its story today "Daniels names Evansville businessman to head Indiana Insurance Department."

The Fort Wayne Journal Gazette story by Niki Kelly is headlined "Daniels appoints black insurance chief." Some quotes:

Republican Gov.-elect Mitch Daniels diversified his emerging administration Wednesday by appointing a black man as commissioner of the Department of Insurance – his first minority selection. * * *

Except for Calloway, all Daniels’ announcements have involved white Hoosiers. Daniels had begun to take some heat on radio and in newspaper columns for the lack of diversity.

To be fair, though, Daniels’ white appointees so far have replaced only one black person currently working for Gov. Joe Kernan in a high-ranking position – the Indiana State Police superintendent.

On the other hand, five white women so far have lost their jobs to white men in the Daniels’ administration, including leaders of the Bureau of Motor Vehicles, Family and Social Services Administration and State Budget Agency.

Excise Police. In addition, the Star reports today that:
Gov.-elect Mitch Daniels asked Indiana State Excise Police Superintendent Alex Huskey to continue serving in that role, and Huskey agreed.

"Alex was highly recommended to us from folks inside and outside state government," Daniels said. "He is committed to helping Hoosiers and improving the efficiency and effectiveness of Indiana law enforcement."

Posted by Marcia Oddi on Thursday, December 30, 2004
Posted to Indiana Government

Wednesday, December 29, 2004

Indiana Government - More on dealing with language differences in courts and government agencies

Yesterday we posted an entry quoting from an Evansville Courier&Press story titled "Interpreters' new legal requirements present another challenge in driver's license quest." Today the C&P has several related stories.

"Cultural differences complicate police work," is the title to this story by Bryan Corbin and Maureen Hayden. Some quotes:

While language is the biggest and most obvious hindrance to Hispanic immigrants navigating local courts, cultural barriers also confound. Vanderburgh County courts interpreter Simon Leon encounters that constantly.

"Here, our system is based on the idea that you are innocent until proven guilty,'' Leon said. "In Mexico, if you're arrested, you are guilty until you can prove yourself innocent."

Misunderstandings with serious consequences can arise from simple traffic violations. When a police officer stops a car in Mexico, the custom is for the driver to walk to the policeman's car, the opposite of the U.S. practice.

A second important story from the same pair talks about translation of court proceedings. Some quotes:
Leon is not an attorney, but once or twice a week he works in a Vanderburgh County courtroom making sure scores of criminal defendants understand their legal rights. It's no easy task. Leon's job is to translate court proceedings for the growing number of Spanish-speaking immigrants streaming through the local legal system. * * *

For the last 18 months, the 72-year-old retired Protestant missionary has played a key role in the county's criminal justice system.

The Gary, Ind., native spends every Monday and every other Wednesday in the county's Misdemeanor Court. He is on-call for criminal trials and hearings in Superior and Circuit courts. He accompanies police, prosecutors, defense attorneys and probation officers to defendant interviews as needed. And he routinely attends the court-ordered "traffic school" for drunken drivers when Spanish-speaking offenders are sentenced there. * * *

Both the U.S. Constitution and the Civil Rights Act of 1964 obligate states to provide comprehensive language services to people who can't speak English, said U.S. District Judge Richard Young, who sits on the federal bench in Evansville.

"When you have persons in your courtroom who can't fully comprehend or participate ... it jeopardizes basic legal rights that we Americans value." Though the federal courts long have required use of qualified court interpreters, it is not an easy requirement to meet, Young said. * * *

Creating a cadre of qualified interpreters is central to correcting the problem, according to a Commission on Race and Gender Fairness formed by the Indiana Supreme Court. As a result, the court started a certification process for interpreters and began offering training late last year.

"Indiana 'ill-prepared' for influx of Hispanics, report finds" is the headline to a third related story by the same Hayden/Corbin pair today. A quote from the beginning of the story:
Three years ago, Vanderburgh County Superior Court Magistrate Jill Marcum took part in an Indiana Supreme Court Commission on Race and Gender Fairness, which traveled the state asking how to make Indiana’s legal system more fair and just. The most frequent complaint they heard: the lack of qualified court interpreters.

The commission heard stories of defendants who couldn’t speak English and were denied full and equal access to justice. In courtrooms across the state, defendants unable to understand court proceedings were forced to rely on family members or friends, untrained in legal language, to interpret for them. Some told commission members of shady interpreters who extorted money from defendants or defrauded them with phony credentials.

See also this ILB entry from Dec. 17th on the Indiana Court interpreter program.

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Indiana Government

Indiana Government - Details of state computer purchasing scandal

Jennifer Whitson of the Evansville Courier&Press has reviewed the federal court documents and has a very detailed account of the felony charges released Tuesday. (Scroll down six entries for the ILB report earlier today.) Here is a quote located well into the lengthy C&P story today:

The Internal Revenue Service, Indiana State Police and FBI initiated an investigation and in December raided the Indianapolis office of Indiana Higher Education Telecommunication System.

In Solomon's cubicle, authorities found a USB external hard drive hidden in the floor, according to court documents. On it were several e-mails between Solomon, Heuring and Heuring's wife, Jamie.

In the e-mails, Solomon complains about the ongoing investigation and worries about losing his job, according to court documents. He writes that he has hated his job since 1999 and has been saving his boss' e-mails, shredding important documents and forging signatures. But he tells his friend he's not worried about jail time.

"I'm upset about the possibility of me losing my job ... but at least I'm not going to jail like many of the other folks," Solomon wrote to Heuring in an e-mail dated Dec. 5, 2000.

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Indiana Government

Indiana Government - Evansville man named new insurance head

The Indianapolis Star website is reporting this afternoon:

Gov.-elect Mitch Daniels today named an Evansville insurance agent to be the new commissioner of the Department of Insurance. Harold Calloway, 58, owns an insurance agency, which he started in 1985. * * * Calloway is Daniels' first minority appointment.
Here is the updated ILB organization chart for the new administration.

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Indiana Government

Indiana Decisions - Four posted today by Court of Appeals

Sherman Culvahouse v. State of Indiana (12/29/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

Appellant-Petitioner Sherman Culvahouse (“Culvahouse”) appeals the denial of his petition for post-conviction relief. We affirm.

Culvahouse raises two issues, which we consolidate as whether the post-conviction court erred in concluding that Culvahouse did not receive ineffective assistance of trial and appellate counsel. * * *

Here, Culvahouse committed arson in an urban area at a time when most residents of the area would not have been awake. Together with Culvahouse’s extensive criminal history, we cannot say that Culvahouse’s maximum twenty year sentence was clearly, plainly, and obviously unreasonable in light of the nature of the offense and Culvahouse’s character. Accordingly, Culvahouse has not demonstrated prejudice from appellate counsel’s decision not to address his sentence on direct appeal. Affirmed.
SHARPNACK, J., and MAY, J., concur.

State of Indiana v. Jason I. Felker (12/29/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
The State appeals the grant of Jason Felker’s motion to suppress. The State raises one issue on appeal, which we restate as whether the trial court correctly determined the information on which the State’s request for a search warrant was based was obtained illegally and therefore could not be the basis for probable cause required for issuance of a search warrant. We affirm. * * *

In light of all the circumstances surrounding the Trooper’s encounter with Felker, we cannot say the trial court erred to the extent it determined the Trooper’s conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. The Trooper’s actions therefore violated Felker’s constitutional protections against unreasonable search and seizure and the evidence thereby obtained could not serve as the basis for a search warrant.
We accordingly affirm the grant of Felker’s motion to suppress.
BAILEY, J., and SHARPNACK, J., concur.

Robert Davis v. State of Indiana (12/29/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-petitioner Robert Davis appeals the denial of his petition for post-conviction relief, claiming that both his trial and appellate counsel were ineffective for failing to safeguard his right not to be punished twice for the same offense in violation of double jeopardy principles. In particular, Davis argues that the filing of criminal charges against him that arose from the acts that triggered a civil forfeiture proceeding subjected him to double jeopardy. Davis claims that his trial counsel was ineffective for failing to object to this issue at trial, and he further contends that his appellate counsel was ineffective for not raising the ineffectiveness of trial counsel in the direct appeal.

We conclude that the criminal proceedings that were concluded after the State had received a judgment in the forfeiture action did not amount to a violation of double jeopardy principles. Thus, we find that Davis did not receive the ineffective assistance of either trial or appellate counsel, and we affirm the denial of his petition for post-conviction relief. * * *

State of Indiana v. Charles Jones (12/29/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-respondent State of Indiana appeals the post-conviction court’s grant of appellee-respondent Charlie M. Jones’s petition for post-conviction relief. In particular, the State contends that the post-conviction court erred in vacating Jones’s habitual offender status after Jones successfully vacated one of his underlying felony convictions because: (1) rather than being found by a verdict to be a habitual offender, Jones admitted to the status in a guilty plea; and (2) the vacation of the prior felony conviction does not negate the fact that at the time Jones admitted his status, the convictions existed. Finding no error, we affirm. * * *

Our review of the statutory language and our supreme court’s interpretation thereof leads us to conclude that the post-conviction court here properly granted Jones’s petition. Although the State contends that Olinger and Coble should not apply here because the defendants in those cases were convicted based upon a verdict, as opposed to Jones, who pleaded guilty, as discussed above, there is no support for the State’s contention that we should treat the two types of defendants differently. The habitual offender statute states plainly that “a conviction does not count for purposes of this subsection if . . . it has been set aside.” I.C. § 35-50-2-8(b)(1). That Jones’s 1991 felony conviction was vacated after the habitual determination is of no moment inasmuch as the Coble court concluded that the timing of the vacation of the underlying predicate offense is not a relevant part of the inquiry. Rather, we must merely examine whether, in fact, a conviction that initially supported the habitual offender determination has been set aside. In this case, it has been. The post-conviction court, therefore, properly granted Jones’s petition. The judgment of the post-conviction court is affirmed.

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Ind. App.Ct. Decisions

Environment - Recent stories

"Daniels' environmental selection draws praise" is the headline to a story today in the South Bend Tribune. A quote:

Recent agency issues have included wetlands protections, overflows from city sewers and proposed air-quality rules on carcinogenic releases.

But environmental activists and industry sources alike have criticized the agency for its slow response issuing pollution permits, drafting rules and ensuring compliance. Environmentalists complain, for example, that some cities and industries have operated for years on expired pollution discharge permits.

Daniels has promised faster and more consistent decisions by IDEM, while at the same time saying that high environmental standards will prevail.

The Fort Wayne Journal Gazette has an editorial today on the new IDEM Commissioner.

"Dow Chemical Is Told to Curtail Pesticide Sales" is the headline to a story today in the Washington Post. The lead:

The Environmental Protection Agency told Dow Chemical Co. this week it can no longer sell a controversial pesticide [Dursban] used to protect new homes from termites as of Friday, ending speculation that the administration might extend a phaseout deadline the two parties negotiated four years ago.
A NY Times story yesterday was headlined "Pentagon Is Pressing to Bypass Environmental Laws for War Games and Arms Testing."

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Environment

Indiana Decisions - 7th Circuit posts three today

Fogel, Richard L. v. Gordon & Glickson (ND Ill.)

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The cross-appeals in this diversity
suit present issues of fraud (under the common law of
Illinois) and arbitrability and a request by the defendants for
sanctions for the filing of a frivolous suit, along with
jurisdictional issues. The district court dismissed the suit for
failure to state a claim, enjoined arbitration, but denied
sanctions. The only sources of facts are the complaint and
contracts appended to it. * * * The notice of
appeal was not premature. But to challenge the amended
judgment, and thus the injunction, Fogel would have had to
file a new notice of appeal, and he failed to do so. So the
appeal from the injunction must be DISMISSED for want of
appellate jurisdiction, and so we do not address the issue of
res judicata. The dismissal of the fraud suit and the denial
of sanctions are AFFIRMED.
Mei, Wei Cong v. Ashcroft, John D. (On Petitions for Review of Orders
of the Board of Immigration Appeals)
Before POSNER, KANNE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Wei Cong Mei has petitioned us for
review of two orders by the Board of Immigration Appeals,
one ordering him removed from this country and the other,
which need not be discussed separately, denying his motion
to reconsider the first order. The principal issue we consider
is the meaning of “crimes involving moral turpitude” in
immigration law and generally.

Simtion, Raducu v. Ashcroft, John (Petition for Review of an Order
of the Board of Immigration Appeals)

Before POSNER, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. After weaving a procedural web
that dates back to 1992, Raducu Simtion now seeks review
of an August 2002 decision of the Board of Immigration
Appeals (“BIA”). But we lack jurisdiction to review that
decision because Simtion did not timely file his petition for
review. Instead, he filed with the BIA a “motion to reopen,”
which the BIA denied in April 2003. Simtion’s May 2003
petition for review is timely to challenge only the BIA’s refusal
to reopen. To the extent Simtion is seeking untimely
review of the August 2002 decision, we dismiss his petition,
and to the extent Simtion is seeking review of his motion to
reopen, we deny the petition.

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Ind. (7th Cir.) Decisions

Indiana Law - Hammond mayor denies local paper access to police records

Yesterday the Munster Times reported:

HAMMOND | Mayor Thomas McDermott Jr.'s chief of staff Monday said The Times will have to wait three weeks to receive routine reports from the city's police department.

Chief of Staff Marty Wielgos cited no legal reason why the records would not be released in a timely manner or why release of information is not subject to Indiana's Open Records Law.

He said other media may be provided information in a timely manner and that Hammond residents can turn to such media for current information.

Wielgos said access to police information is being withheld because there is a strained relationship between the mayor's office and The Times.

He also said, "Some of those other entities -- based on their relationships with the Police Department -- will get their information one way. Others who don't have as good of a relationship with the Police Department may have to wait a little longer."

The Times has been denied access to daily Hammond crime reports since Dec. 21, when McDermott ordered all requests for information -- including police reports -- to receive approval from his office.

McDermott has declined to discuss the policy, and did so again Monday. His edict came shortly after the newspaper published a news story on his request for a pay increase. In an editorial, the newspaper opposed the pay increase, citing a tax crisis in Hammond.

In today's paper The Times reports:
INDIANAPOLIS | At least two legal experts in public records law on Tuesday said Hammond Mayor Thomas McDermott Jr. has no authority to withhold routine police records from The Times for any longer than 24 hours.

Steve Key, counsel for the Hoosier State Press Association, said the public records law is extremely clear that information on police activity must be made available to all who request it. Key said no official has the discretion to decide who gets public information later than others, as McDermott has ordered for The Times.

"The mayor does not have the ability to withhold this information from anyone," Key said. "The law doesn't allow for information release to be based on relationships or on who the public officer likes or doesn't like."

Key said he's certain the state's public access counselor will rule against the mayor in an advisory opinion. If McDermott ignores that ruling, the only option is a lawsuit, he said. The real loss comes for the public, which is denied information needed for self-protection, he said. * * *

The issue now has received national attention through Editor & Publisher, a journal that covers the newspaper industry.

In August, The Times and seven other newspapers conducted a test of access to public information in all 92 Indiana counties. Newspaper employees presenting themselves as the public requested the same crime logs and incident reports that McDermott has restricted.

When the test found that county sheriff offices routinely broke open records law, the state's public access counselor said more legal training was necessary to help public officials and employees understand the law. Most officials relent when the counselor's office sends out an advisory opinion, she said at the time.

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Indiana Law

Indiana Government - Yet another scandal story

Another scandal story today, this one on the front page of the Indianapolis Star, headlined "Official overbilled state for equipment, police say: Amid lax oversight, affidavit says, engineer may have triple-billed for computer gear." Again, the cause looks to include poor supervision. And again, as with many of the other recent scandals, including the BMV, the Lottery and PERF, the entities involved were not subject to the laws and review procedures of normal state agencies. Generally one of the reasons behind the creation of these quasi-publics is to "avoid red tape" -- meaning restrictions on personnel, purchasing and contracting, etc. ... The Star story today concludes:

The Solomon case is the latest in a series of incidents raising concerns about the state's ability to oversee spending, especially by groups that operate with no direct oversight from state government officials.

Earlier, the Public Employees' Retirement Fund unknowingly hired a convicted identity thief to help run the state pension fund.

In addition, the former leader of Indiana Web Academy, part of the Intelenet Commission, is under investigation for misspending.

And there have been significant fraud cases in the Bureau of Motor Vehicles and the Family and Social Services Administration.

[Note, however, that the FSSA is not a quasi-public; it is/was just, perhaps, too large.]

The Star also has an editorial today making the point that state ethics reform should include the legislative branch:

But why exempt the legislature? Legislators can now immediately jump from lawmaking to lobbying. They also can accept an unlimited number of gifts and meals from lobbyists. There isn't even a limit on the value of such gifts.
See also yesterday's entry on state ethics (the second half of the entry).

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Indiana Government

Indiana Law - More on Provisions Taking Effect on Jan. 1, 2005

An entry here on Monday discussed how to locate 2004 laws that take effect Jan. 1, 2005. My answer was to look at the effective dates in the 2004 "Enrolled Act Summary."

A reader has written to advise me that the complete answer may be more complicated:

Delayed effective dates have become more problematic in recent years, particularly effective dates a year or more after the General Assembly has adjourned.
The reason, as the writer explains, is the possible "piggybacking" of amendments to a specific section, each to take effect at a different time in the future:
For example, if you amend an existing Code section effective, JULY 1, 2008, all versions of the section are printed in the Indiana Code. Then the question arises how to treat a subsequent amendment to the same Code section that the author wants to be effective before the previous JULY 1, 2008 amendment. It becomes very messy (particularly when there are several versions of a Code section that become effective on different dates) and leads to errors as to which version of the Code section should be used for amendment (which as you know, sometimes must be done in a matter of minutes). There are also problems with how to show or amend a Code section that is repealed with a delayed effective date.
Some of you may recall seeing examples of the problem the writer is referencing -- two or three versions of a section reproduced in the Indiana Code, one right after another, with notes saying things like "This version is in effect until ...; This version takes effect ...," etc.

How to resolve this? The route the General Assembly appears to have selected is to, in effect, use an "internal" effective date. As the writer continues:

[Y]ou will now see embedded in more Code sections sentences such as "This subsection applies after December 31, 2004" or "This section expires January 1, 2005." Sometimes these applicability clauses can even be found down at the subdivision, clause, or item level.
What is the immediate importance of these changes? Simply looking at the dates in the "Enrolled Act Summary" may not work any more; my answer on Monday was incomplete. For instance, a section that "takes effect" July 1, 2004, may not "apply" until January 1. 2005 because of an internal effective date.

Those of you eager to know more about this fairly technical matter are directed to the "Effective Dates" discussion in the Indiana General Assembly's 1999 bill drafting manual, which included this suggestion:

(9) Delayed Effective Dates. Avoid providing for an effective date beyond July 1 of the year following the year of enactment. Instead, it may be more practical to insert dates of application in the Indiana Code.

Posted by Marcia Oddi on Wednesday, December 29, 2004
Posted to Indiana Law

Tuesday, December 28, 2004

Indiana Decisions - One Court of Appeals, One Tax Court ruling posted today

Lana K. & Leon A. Oxley v. Christoper Lenn, et al. (12/28/04 IndCtApp) [Legal Malpractice]
Sharpnack, Judge

[The Oxleys] appeal the trial court’s grant of summary judgment to their former attorney, Christian Lenn, and his law firm, Raibley & Lenn, LLP (collectively, “Lenn”). The Oxleys raise two issues, which we consolidate and restate as whether the trial court erred by granting summary judgment to Lenn in the Oxleys’ legal malpractice case. We reverse and remand. [More coming]

Hoosier Energy Rural Electric Cooperative, Inc., et al. v. Department of Local Government Finance (12/23/04 IndTaxCt) [Property Tax] Fisher, J
The sole issue before the Court is whether the State Board erred in not assessing the Petitioners’ property on a consolidated basis during the years at issue. * * *

Indiana Code § 6-1.1-8 is completely silent with respect to the filing of consolidated returns by public utilities, as are the administrative regulations applicable to public utility assessment. See Ind. Admin. Code tit. 50, r. 5.1-6 (1996). This Court has often said that what a statute or regulation does not say is just as important as what it does say. See LeSea Broad. Corp. v. State Bd. of Tax Comm’rs, 525 N.E.2d 637, 639 (Ind. Tax Ct. 1988). See also Western Select Prop. v. State Bd. of Tax Comm’rs, 639 N.E.2d 1068, 1073 (Ind. Tax Ct. 1994) (stating that rules of statutory construction also apply to administrative rules and regulations). This leads the Court to the conclusion that the statutes and regulations relating to public utility assessment were drafted with the intent that public utilities cannot file consolidated returns.

As mentioned earlier, the Petitioners’ entire argument is based on the fact that because three other public utilities were allowed to file consolidated returns, the Petitioners, likewise, are entitled to such a filing. The fact that those other public utilities filed consolidated returns, however, will be of no consequence to the treatment the Petitioners seek. Indeed, there is no sound reason to give the Petitioners the benefit of the State Board’s misinterpretation and misapplication of the law simply because someone else may have previously benefited from the same mistake; to do so would only exacerbate the inequity for everyone else.

CONCLUSION. For the foregoing reasons, this Court hereby AFFIRMS the State Board’s final determinations in this case.

Posted by Marcia Oddi on Tuesday, December 28, 2004
Posted to Ind. App.Ct. Decisions

Indiana Decisions - 7th Circuit posts three today

Allstate Insur Co v. Tozer, John (SD Ind., Tim A. Baker, Magistrate Judge)

Before FLAUM, Chief Judge, and CUDAHY and POSNER, Circuit Judges.
FLAUM, Chief Judge. This is a declaratory judgment
action brought by Plaintiff-appellant Allstate Insurance
Company (“Allstate”). Allstate seeks a declaration that the
claims of Kristina and Nicholas Keltner for negligent infliction
of emotional distress caused by witnessing their
brother’s death are subject to the same limit of liability applicable
to the brother’s injuries. The district court granted
summary judgment in favor of the insureds, and Allstate
appealed. For the reasons stated herein, we reverse. * * *

We need not resolve the exact contours of Indiana’s estoppel
doctrine, however, because defendants’ argument
fails for an independent reason. An insurer seeking to avoid
a claim of estoppel by its insured has two options: “(1) file
a declaratory judgment action for a judicial determination
of its obligations under the policy; or (2) hire independent
counsel and defend its insured under a reservation of
rights.” Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223,
1227 (Ind. Ct. App. 1999). Allstate chose the first option by
filing this lawsuit. Its failure to exercise the second option
does not, therefore, estop it from arguing that the policy
limit has been exhausted. Stated alternatively, Allstate
prevented any prejudice to the insureds by filing this suit
and clarifying its legal obligations. See Terre Haute First
Nat’l Bank v. Pac. Employers Ins. Co
., 634 N.E.2d 1336,
1338 (Ind. Ct. App. 1993) (insured asserting estoppel must
establish prejudice). Moreover, this is not a case in which
prejudice may be presumed from the lengthy period of time
between the insurer’s realization that it has a defense to
coverage and its communication of that defense to the insured.
Cf. Manta, 714 N.E.2d at 1282. Allstate is therefore
free to argue that its policy limits have been exhausted.

III. Conclusion
The doctrine of estoppel does not prevent Allstate from
asserting that Nicholas’s and Kristina’s emotional distress
claims are subject to the “each person” limit of liability
applicable to their brother’s bodily injuries. Since we conclude
that Indiana law would accept plaintiff’s position, we
REVERSE and REMAND with instructions to enter summary
judgment in favor of Allstate.

Fidelity & Deposit v. Rotec Industries Inc (ND Ill.)
Before FLAUM, Chief Judge, and CUDAHY and POSNER,
Circuit Judges.
POSNER, Circuit Judge. The appeal in this diversity suit
governed by Illinois law requires us to examine a doctrine
of contract law known as “divisibility.” * * *

But what if, as the plaintiffs argued unsuccessfully to the
district court, the contract was divisible into two parts and
the first, having been fully executed by Atkinson, had not
been rejected when Atkinson rejected its executory contracts?
Then it would be as if there were two separate
contracts, one performed, one executory, with only the
second having been rejected in bankruptcy and the first
having passed to the plaintiffs in the sale to them of
Atkinson’s contract rights. * * *

No trial is necessary here in any event, if only because
Atkinson has failed to indicate what if any evidence it might
wish to present at a trial, beyond the documents constituting
the contract, that would bear on the issue of divisibility. All
the pertinent evidence is thus before us and as it supports
only one conclusion—that of indivisibility—there is no
occasion for a trial. The judgment in Rotec’s favor is

Sutter Insurance Co v. Applied Systems Inc (ND Ill.)
Before BAUER, POSNER, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. This is a diversity suit, governed by
Illinois law, for breach of contract. (Certain other claims
have dropped out.) The plaintiff, Sutter, is an insurance
company that purchased the “Diamond System,” a computer
software program, from the defendant, Applied, which
designs and sells business applications software. Sutter had
to replace its existing software because the provider had
announced that it would soon cease providing updates. The
district judge, after a bench trial, rejected Sutter’s claims but
also Applied’s counterclaim; only Sutter has appealed. * * *

But this is not to say that the district judge’s ruling was
necessarily wrong. Some of the evidence that we have referred
to in support of Sutter’s interpretation was contested
and the judge did not indicate which side he believed.
Although the language of the contract and the economic
setting favor Sutter, there may conceivably be enough contrary
evidence, depending on the resolution of the conflicts
in it, to support the judge’s decision. However, because his
findings do not trace a clear path from the evidence to the
judgment, we are constrained to vacate the judgment and
remand the case for further proceedings. * * * On
remand the judge can if he wishes conduct a further evidentiary
hearing. And since the total amount of money at stake
in this case is modest by the standards of modern federal
litigation, maybe this opinion will provide sufficient
guidance to enable the parties to settle the case.

Posted by Marcia Oddi on Tuesday, December 28, 2004
Posted to Ind. (7th Cir.) Decisions

Economic development - New Castle casket store marks a change in funeral industry

"New Castle casket store marks a change in funeral industry" is the heading to an interesting story today in the Muncie Star-Press. Some quotes:

Owner Tony Beck knows that his Indiana Casket and Monument Sales store isn't a typical downtown business, but already the novelty of a shop that sells caskets, headstones and urns has turned heads in New Castle.

And he likes that.

But more importantly, he says, is the fact that grieving families now have a choice of where to buy some of the most expensive supplies for a funeral.

Up until 1994, all caskets were bought and sold at funeral homes. It was one-stop shopping and a convenience for survivors, but the Federal Trade Commission said it also gave funeral home directors a monopoly on the business. That's why the commission changed the rules.

Now caskets and urns can be bought online, even from discount stores like Costco and the Internet auction site eBay. They also can be purchased from a retail store like the one in New Castle.

"When a family loses someone and is in grief, shopping is the last thing on their mind," Beck said, "but the savings on a casket can pay for a monument." * * *

A funeral ranks as one of the three most expensive events in a person's life, after the purchase of a home and paying for a wedding. Studies by the National Funeral Directors Association have pinpointed the price of an average funeral at more than $5,000, though even that fee doesn't include the price of a cemetery plot, monument or vault.

Beck said the lettering painted on the front windows of his business tells the story - 30 to 50 percent savings.

Funeral home directors weren't happy with the FTC's ruling 10 years ago, and Beck said most aren't friendly when he delivers a casket to their door. By law a funeral home can't turn away a casket from a third-party retailer, even if they sell the same model.

More about caskets. The Batesville Casket Company, headquartered in Batesville, Indiana, "is a subsidiary of Hillenbrand Industries and is the leading manufacturer of metal and hardwood burial caskets. We are also a leading provider of cremation urns and caskets, as well as related support services."

Here is an ad for a company called buycaskets.com, self-described as an authorized Batesville Casket dealer, selling caskets nationwide over the internet, with "guaranteed free next day delivery." Here is a Costco ad. It cautions: "Currently caskets can only be purchased from and shipped to addresses in the following states: Arizona, California, Colorado, Florida, Illinois, Indiana, Massachusetts, Michigan, New Jersey, New York, Ohio, Oregon and Washington."

Here are some more articles about Indiana casket manufacturers:

  • From an article on IU's Kelly School of Business list of Indiana's top entrepreneurial firms: "C.J. Boots Casket Co. of Anderson in four years has found a successful niche in the manufacturing and distribution of customized wood caskets. Boots learned of the demand for his product after taking over the job of building wood caskets for members of his German Baptist Church. He sees Indiana-based Batesville Casket Co. as his primary competition."

  • From Inside Indiana Business (story includes a video): "Back in the 70’s and 80’s oversize caskets were hard to get and poorly made. Special size caskets were made by hand, and without much regard to quality or integrity.

    "In 1985, in Lynn, Indiana, Forrest Davis quit his job as a welder in a casket factory and began Goliath Casket, Inc. He and his wife Mary, saw the need to produce a quality oversize casket. The company started in an old converted hog barn by offering just two sizes and one color. From those beginnings, the company expanded rapidly to a full range of sizes starting at 29” wide, up to 52” wide, and up to 8 feet long."

  • From Cincinnati.com, a story last June 17, 2003 titled "Old company high-tech player: Casket maker renowned for Web activities." Some quotes:
    AURORA, Ind. - This historic river town will never be mistaken for a high-tech mecca, but it lays claim to being one of the most innovative suppliers in the funeral industry.

    Family-owned Aurora Casket Co., which has called Aurora home since 1890, has been recognized as an industry leader for adopting Web-based initiatives aimed at its funeral home customers and the families they serve. * * *

    Because Aurora is privately held, Barrott said the company can invest in new technology without the pressures for return on investment that its larger, publicly held rivals face.

    Aurora employs about 900 people, including 500 in Aurora. It was started in 1890 by John Backman, with 30 employees making wooden caskets by hand.

    An interesting fact I noticed in reading about several of these Indiana casket manufacturers is that only within the past few years have they added hardwood caskets to their lines, or gone back to including them. Recall yesterday's entry (2nd item) about Indiana's hardwood industry.

    Posted by Marcia Oddi on Tuesday, December 28, 2004
    Posted to Indiana economic development

    Indiana Law - More on LCJ Meth series

    The third part of the Louisville Courier-Journal series on Indiana and Kentucky's problems in dealing with the meth crisis appears here today. (Scroll down 3 entries for links to the earlier stories.) Headlined "Tighter ingredient controls can curb meth production: Drug courts called vital in treating addiction," today's story reports:

    Kentucky and Indiana lawmakers expect to consider legislation next year that would tighten the sale of ingredients used to make meth and increase treatment for addicts.

    Central to both states' plans are bills designed to severely limit the sale of cold and allergy drugs that contain pseudoephedrine, a key ingredient for making methamphetamine.

    The legislation in both states will be based at least in part on an Oklahoma law that directs retailers to keep cold and allergy drugs that contain pseudoephedrine behind counters, requires customers to sign a log and limits how much can be bought in a month, lawmakers said.

    Oklahoma pharmacies will not sell a person more than nine grams of pseudoephedrine in a product within a 30-day period. * * *

    Indiana appears to be ahead of Kentucky, having formed a task force that recently issued an array of recommendations for legislation to be introduced next month in the General Assembly.

    Indiana state Rep. Trent Van Haaften, D-Mount Vernon, the legislative member of the task force, said success in his state could spur surrounding states to react.

    "If Illinois sees that it works in Indiana, that could provide an example for both Illinois and Kentucky, and Ohio and Michigan for that matter," he said.

    Oklahoma believes its law immediately cut the number of meth labs that needed to be dismantled, said Robert Lee, deputy inspector of the Oklahoma State Bureau of Investigation.

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

    Indiana Government - Stories today

    "Interpreters' new legal requirements present another challenge in driver's license quest" is the headline to this story today by Roberta Heiman in the Evansville Courier&Press. Some quotes:

    On a typical Tuesday or Friday, there might be as many as eight to 10 non-English speaking applicants, said Branch Manager MeLissa Williams, herself an American Indian of the East Branch Cherokee tribe.

    She said it can be difficult for the immigrants to understand all the requirements in the licensing process. And if they aren't accompanied by friends or relatives fluent in English, it can be difficult finding interpreters and translators for them.

    It will become even more difficult on Jan. 1, when new requirements go into effect. The new rules by the Indiana Bureau of Motor Vehicles will no longer allow a friend or relative to serve as the interpreter for driver's license applicants.

    Interpreters will have to be representatives of a government entity, educational institution or cultural or religious institution, bureau spokesman Dan Henkel said.

    The story notes that immigrants seeking driver's licenses "come to this city from South America mostly, but also from Russia, China, Iran, Africa; all over the world" and continues by listing the requirements the translators will have to meet:
  • Have a full criminal background check by Indiana State Police.

  • Submit an audio-cassette recording of their ability to speak both languages. Or, if they're translating documents rather than interpreting orally, submit examples of their ability to translate documents.

  • Submit a resume, and include references from organizations that have used their services.

  • Agree to have their transactions at the license branch recorded, upon request by the state agency.

    "This may seem like a lot of hoops, but we think they're necessary," Henkel said, explaining that it's an attempt to "make sure those who are helping our customers conduct their transactions are doing so accurately and ethically. The need for the policy is clear," he added.

  • Ethics is the focus of a story by Mary Beth Schneider in the Indianapolis Star today. The headline: "Bosma wants state's ethics to be stronger: Speaker will sponsor bill with Daniels' limits on conduct by those in the executive branch." Some quotes:
    The Indianapolis Republican said he plans to be the chief sponsor of the bill containing Gov.-elect Mitch Daniels' campaign promises to raise the ethical bar for state employees -- and find new ways to hold accountable those who don't meet that test.

    "I think it sends a positive message about the attitude of the new leadership in the House about the need to build public confidence in state government," Bosma said.

    That confidence has been shaken by scandals in several agencies in the past couple of years:

    • A convicted identity thief was unwittingly hired by the state's pension fund.

    • A former social services manager is awaiting trial for allegedly taking part in schemes that bilked the state of a half-million dollars.

    • Four employees of the Bureau of Motor Vehicles were convicted in a scheme that officials said involved taking bribes to issue fraudulent driver's licenses and state identifications to foreign nationals.

    • A security officer for the Hoosier Lottery was arrested and accused of leaking information that let two friends get a winning $1 million scratch-off ticket. * * *

    But Daniels also wants to go further [than Kernan's recent efforts], banning all employees from lobbying state government for one year after they leave, prohibiting agency heads and anyone involved in purchasing from soliciting political contributions, prohibiting lobbyists from serving on state boards and commissions and increasing penalties for wrongdoers.

    Penalties would include revoking pensions from public employees convicted of wrongdoing, adopting new bribery laws, automatic lifetime bans from public service for employees and vendors who cheat the state and increased criminal penalties for official misconduct.

    Barclay said one essential element of Daniels' plan is creating the position of "inspector general." Daniels on Wednesday named David Thomas, the Clay County prosecutor, in that role as the state's chief government watchdog. * * *

    Julia Vaughn, policy director for the citizens' lobbying group Common Cause/Indiana, said she applauds Daniels' program. "We think it's great that he's putting an emphasis on ethics," she said. "But that doesn't stop on the second floor." One floor up from the Statehouse's second floor and the governor's office is the legislature, and that, Vaughn said, is where most of the intense lobbying goes on.

    "When you compare the lobbying that goes on in the legislative branch, (the executive branch) pales in comparison," she said. "There are significant changes needed."

    She said this should include a cooling-off period of at least a year before a legislator can join the ranks of lobbyists, a ban or limit on gifts to legislators and more frequent reporting of lobbying activities.

    The legislature has resisted such changes, with bills to slow the revolving door between the legislature and the lobby not even getting a committee hearing, much less a vote. Legislators argue that their ability to land a better paying job should not be restricted.

    A thought: Better supervision might be as effective as the threat of draconian penalties in preventing the types of executive branch abuses detailed in this story, as well as those problems reported in other stories such as employees apparently entering into state contracts on their own, with no or ineffective review procedures.

    Posted by Marcia Oddi on Tuesday, December 28, 2004
    Posted to Indiana Government

    Law - Disarray Plagues Federal Sentencing

    Check the front page of the Wall Street Journal this morning (paid subscription required) for an important story headlined: "In Wake of Ruling, Disarray Plagues Federal Sentencing: Supreme Court's June Verdict Leaves Judges Confused; Some Issue Two Decisions." The lead:

    At Manhattan's federal courthouse, Judge Shira Scheindlin has had a new policy since August: She doesn't sentence any defendants unless they ask for it. Three floors down, Judge Jed Rakoff has a different but equally unusual policy: He gives every defendant two sentences, based on two different sets of rules.

    Posted by Marcia Oddi on Tuesday, December 28, 2004
    Posted to General Law Related

    Monday, December 27, 2004

    Environment - Recent stories

    An AP story today reports "Dozens of Indiana bird species diminishing." Some quotes:

    More than two dozen bird species are listed as endangered in Indiana, and the populations of 13 others were diminishing, studies say.

    A Stanford University study published this month concluded that 10 percent of all bird species are on track to disappear within 100 years, and an additional 15 percent are in trouble because of habitat loss, climate change, introduced predators and other factors.

    The Audubon Society reported this fall that 85 percent of U.S. grassland birds — many found in Indiana — are declining. * * *

    Their numbers were depleted as nesting habitats disappeared into row crops, subdivisions and roads — a problem often being repeated in their wintering grounds.

    "The fact that we're losing birds is an indicator of declining environmental quality," said Don Whitehead, a retired Indiana University professor and bird biologist. "We are tied to that same environment."

    The Bluffton News-Banner has a story about the federal buyouts of a number of the town's homes, located in a floodplain, damaged by the 2003 flood. Some quotes:
    Instead of wondering when, if ever, big flood loss relief would come, the relief has been paid and the city could end up with about $125,000 on hand for its flood buffer picnic park in the east part of the older residential city. * * *

    Over a week ago the city’s environmental contractor, EMS Inc. (Environmental Management Services) was reported to have been filing its notice to the Indiana Department of Environmental Management (IDEM) on intent to demolish, including environmental removal plans, chiefly on the limited amount of asbestos indicated by the EMS studies.

    Allowing a required two-week waiting period from that notice filing to the actual demolition, the city set out Jan. 3 to Frauhiger as the first day any actual demolishing could take place, although salvage removals could be started right away. * * *

    The huge difference from Christmas-New Years a year ago is that last year at this time, there was disappointment because the state-predicted buyouts by Christmas of 2003 were not taking place on that state timetable.

    Actually, as most know, the breakthrough did not come until May and the money until July 9, 2004, the one-year anniversary of the greatest flooding day in the Great Flood of 2003.

    On that July 9, 2004, date, the state turned over a check for $490,559 -- the first payment toward the committed total of $684,926 federal hazard mitigation money for a buyouts program from FEMA (Federal Emergency Managements Agency.)

    With a subsequent check for $80,759 as the state has tracked the 75 percent federal commitment on actual buyouts and related costs, the federal sums to Bluffton have totalled $571,745 thus far, and all the 17 homeowners in the priority flood zone area have been paid in full for their homes -- paid on basis of averaged out appraisals. * * *

    The entire program, including buyouts, demolitions, clearings and new park launching , will be just under $1 million, with a little under $700,000 in federal funding or it.

    Posted by Marcia Oddi on Monday, December 27, 2004
    Posted to Environment

    Indiana Law - Meth: a rising blight

    The Louisville Courier-Journal is running a 3-part series, collectively titled "METH: a rising blight." Yesterday's main story was headlined "Meth's surge leaves a trail of misery in Kentucky and Indiana." Some quotes:

    Despite years of warnings, Kentucky and Indiana were caught largely unprepared when methamphetamine began its ruinous sweep through both states.

    Eleven other states updated their laws as early as 2001 to prevent addicts from buying enough cold and allergy medications to make meth by distilling out the chemical pseudoephedrine. But Kentucky and Indiana failed to do likewise, allowing the spread of makeshift meth labs in garages, fields, hotel rooms and nearly anywhere.

    Kentucky and Indiana instead focused on toughening the penalties for possession and manufacturing of the drug and possession of pseudoephedrine. That strategy did not slow the drug's onslaught, and now both states expect to address the problem in their legislative sessions next year. * * *

    Lawmakers and officials in both states said they have not been ignoring the meth problem, but rather they thought enacting stiff penalties for making meth would be enough. In Kentucky, a conviction brings a 10-year minimum sentence.

    But critics said the states should have followed the early lead of Missouri, Oklahoma and others that found that restricting meth's ingredients was the single most effective solution.

    Today's lead story is headlined "Court ruling constricts fight: All ingredients needed to convict." The reference is to a Kentucky ruling:
    Caught in May 1999 outside a Somerset Wal-Mart with 288 "Equate" antihistamine tablets — and most other ingredients to make meth — Ronald Kotila seemed like he already had one foot in prison.

    "I don't know of anyone who's ever had a cold that bad," prosecutor Christopher Brown told a Pulaski Circuit Court jury seven months later, on Jan.6, 2000, before it convicted Kotila of manufacturing methamphetamine and other offenses.

    The evidence included two lithium batteries, six cans of starting fluid, one glass vial, a black cooking pot and three pieces of hose — as well as more than two grams of the finished product — found in his maroon Buick. Kotila was sentenced to 25 years in prison.

    But by a 5-2 vote, the Kentucky Supreme Court reversed his conviction, saying the law did not apply to him because he did not have a crucial ingredient in the meth-making recipe: anhydrous ammonia.

    The court ruled in June 2003 that the law creating a charge of manufacturing meth meant defendants had to have all of "the chemicals or equipment," not just some of them.

    Prosecutors say the ruling has crippled their ability to punish people who make meth — a felony that carries a 10-to-20-year sentence. The law still allows them to be arrested if they are caught making the drug. * * *

    At least a half-dozen other convictions have been reversed by the Court of Appeals and Supreme Court because of the Kotila ruling, according to records of those courts.

    And prosecutors say that savvy meth manufacturers are exploiting the ruling by not assembling the ingredients in one location until they are ready to cook up a batch. * * *

    Kentucky also is the only state that allows a prosecution for manufacturing meth based on mere possession of the chemicals and equipment necessary to make it; other states penalize that as "attempted manufacturing," which carries a lesser penalty.

    In Indiana, the manufacturing process must have begun to sustain a conviction for manufacturing meth, although runners caught with some of the necessary chemicals may be charged with conspiring to make the drug, which carries the same penalty, said Deputy Prosecutor Jeremy Mull, who prosecutes drug cases in Clark County, Ind.

    Another story focuses on the environmental impact of meth labs. The headline: "Meth labs are perilous, can scar environment
    Cleanup costs sap state resources."

    Posted by Marcia Oddi on Monday, December 27, 2004
    Posted to Indiana Law

    Economic Development - Chicago Steelmaking: Dead but Not Forgotten; Plus More

    "Chicago Steelmaking: Dead but Not Forgotten - Activists Want to Turn Old Plant Into a Museum" is the headline to an interesting story found today, not in a Chicago paper, but in the Washington Post. Some quotes:

    CHICAGO -- The stretch of southeast Chicago along Lake Michigan was built on steel. In its heyday, about 200,000 people were employed here in the steel mills and other industries related to steel production and shipping. Immigrants from Poland, Ukraine and other European countries flocked to the area, along with waves of Mexican workers and African Americans from the South, all drawn by the promise of grueling but well-paying mill jobs. * * *

    Today, Chicago's steel industry is gone. There are still mills operating along the lakeshore in northwest Indiana, but the giants of Chicago steel have all closed their doors, from the folding of Wisconsin Steel in 1980 to the 2001 closure of the Acme Steel Coke Plant, which baked coal into coke, the fuel used to melt iron ore to make steel.

    Now the vacant Acme plant, whose components were built between 1905 and 1930, is the last major Chicago steel industry structure left standing. Wisconsin Steel, U.S. Steel and the other major plants were demolished and sold for scrap metal. That was to be Acme's fate as well, until a group of preservationists, environmentalists, former steelworkers and historians stepped in to save the structure.

    "Hardwoods give state many jobs" is the headline to a story today fronting the business section of the Indianapolis Star. It begins:
    Indiana's sprawling corn and soybean fields have nothing on its forests, a new study of Hoosier agriculture shows. Employment and wages in the state's sawmills, furniture factories and other sectors of the hardwood industry rival those of the farms, grain elevators and food manufacturers that drive the most visible aspect of agriculture, according to an interim report released this month by BioCrossroads, a life sciences economic development nonprofit.

    Last year, one in 15 Hoosier workers -- 190,000 -- made a living from agriculture, the report says. One-fourth of those work with hardwoods. And the nearly $1.4 billion they earned in wages was virtually identical to the total salaries paid to state workers in the past fiscal year.

    Not only is hardwood big, but it's surviving the onslaught of Chinese exports better than Carolina residential furniture makers, the study found.

    "Very few people understand how important the hardwood industry is to Indiana," said author Ron Meeusen, BioCrossroads special projects director. "It's one of our jewels. Nobody can ship our forests to China." * * *

    "Ag really ought to be part and parcel of rural economic development," said Meeusen, formerly chief of research and development of plant genetics and biotechnology at Indianapolis-based Dow AgroSciences

    The Hoosier hardwood industry is scattered across the state, although virtually none of it is in Central Indiana. Most activity centers in southern Indiana's forests of oak, hickory, cherry and walnut. A secondary pocket is in northern counties, including the Mishawaka area.

    Potential for hardwoods is so great that half of the six recommendations for helping agriculture will focus on the industry, Meeusen said. When released in January, the detailed hardwood recommendations will promote global marketing and branding as well as improving forests and manufacturing technology.

    "Daniels' economic development plan will soon be tested" is the headline to this story today, also in the Indianapolis Star. A quote:
    But it's not just the legislative package that Daniels said is key to turning around the state's economy. On par with that effort, he said, is his promise to improve the efficiency and operation of state government -- making sure, for instance, that state workers respond quickly to businesses considering a move to Indiana or expansion at their current plants.

    "The single biggest change that we can make throughout state government is to reform and reshape it and to fasten the attention of all state employees on economic growth. . . . More money in the pockets of Hoosiers is the goal of every member of our administration," Daniels said. "It is the most important thing we can do."

    In the coming months, however, the package of bills Daniels takes to lawmakers will be among the factors that generate the most attention and help determine how his first year in office is graded.

    "He needs to have one or two notable successes that are his own initiatives," said Bill Blomquist, a political scientist at Indiana University-Purdue University Indianapolis. "It doesn't have to be everything. But when we're sitting around at the end of April sorting out the winners and losers, he can stay off that losers list by having (successes) he can point to."

    An accompanying story surveys the "Incoming governor's ideas for adding jobs."

    Posted by Marcia Oddi on Monday, December 27, 2004
    Posted to Indiana economic development

    Indiana Law - Provisions taking effect on Jan. 1, 2005

    "ILB fan Chad Bouchard" writes today to ask:

    Have you seen anything in print about laws taking effect this January first? Do you happen to know of a good shortcut resource for sorting out when last session’s bills are implemented?
    I have not yet seen any stories about laws taking effect January 1, 2005 -- I would expect to see them in the coming weekend's papers.

    As for a good shortcut resource for telling when the last session's bills take effect, I usually turn to the "Enrolled Act Summary" prepared by legislative staff as each session draws to an end. It is not finalized until the disposition of all that session's enrolled acts is known.

    The General Assembly (in theory anyway) has these summaries available in the archives section of its website. However, when I tried today I found the site's links were bad. So I have posted a copy of last session's (the 2004) summary here on the ILB site.

    The first page of the summary is worth studying. Among the points it makes that may be useful for someone who does not often follow legislation is that the date a bill "becomes a law" is very often not the same as the date the law "takes effect." And various sections of a bill may take effect at different times.

    A quick glance through the summary shows only these provisions taking effect Jan. 1st - although my eyes may have missed some.

    SEA 278 (PL19) - eff. 01/01/2005: Collection of information by the department of state revenue

    SEA 296 (PL20) - eff. 01/01/2005: Property tax deductions

    HEA 1229 (PL73), SECTIONS 1 through 4, 33, 46, 47 - eff. 01/01/2005: Home loan practices

    HEA 1273 (PL51), SECTION 5, 12 - eff. 01/01/2005: ICHIA amendments

    HEA 1365 (PL81) SECTIONS 20-22, 24 - eff. 01/01/2005: State and local administration

    To access any of these laws in Enrolled Act form, use this link.

    Posted by Marcia Oddi on Monday, December 27, 2004
    Posted to Indiana Law

    Indiana Decisions - 7th Circuit posts two today

    Munro, Patrick J. v. Golden Rule (ED Wis.)

    Before BAUER, EASTERBROOK and KANNE, Circuit Judges.
    BAUER, Circuit Judge. At all times relevant to this action,
    Plaintiffs-Appellants Patrick and Claudette Munro were
    covered by a health insurance policy issued by Defendant-
    Appellee Golden Rule Insurance Company. From March 1999
    through March 2002, Claudette Munro incurred medical
    bills in connection with a series of hospital visits. Golden
    Rule paid $289,650.91 of these bills but contested inpatient
    expenses totaling $3,885.01, arguing that they were not
    covered under the terms of the policy. The Munros filed an
    action against Golden Rule in the Milwaukee County Circuit
    Court to compel payment, alleging bad-faith breach of
    contract. Golden Rule removed the case to federal court, citing
    diversity of citizenship. While the case was pending,
    Golden Rule resolved the billing dispute and paid the outstanding
    charges of $3,885.01. The Munros responded by
    dismissing their breach of contract claim, but they continued
    to press their claim of bad faith. The district court granted
    summary judgment in favor of Golden Rule, and the Munros
    now appeal. * * *

    Even when
    attorney fees are taken into account, the Munros are
    $71,670.00 short of the threshold for federal jurisdiction. To
    find that subject matter jurisdiction exists would render
    meaningless the amount-in-controversy rule. Therefore, the
    judgment of the district court is VACATED, and we REMAND
    with instructions to dismiss for lack of subject matter

    USA v. Smith, Corey A. (ND Ind., William C. Lee, Judge)
    Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Corey Smith and two codefendants
    were charged with one count of distributing and
    one count of conspiring to distribute crack cocaine. See 21
    U.S.C. §§ 841(a)(1), (b)(1)(B), 846. One of the codefendants,
    Alonzo Grant, made a deal with the government
    and testified against the other two. After a jury trial at
    which Grant’s testimony played a crucial role, Smith was
    convicted of both counts, and the third codefendant, Travis
    Black, was acquitted of both counts. Smith initially argued
    in his brief that the government failed to disclose all
    of the terms of its deal with Grant, and that the nondisclosure
    violated his due process rights. See Giglio v.
    United States
    , 405 U.S. 150, 154-55 (1972); Brady v.
    , 373 U.S. 83, 87 (1963). At oral argument,
    however, Smith’s counsel withdrew that argument, concluding
    that Smith should raise it in a collateral attack and
    further develop the record. See 28 U.S.C. § 2255. Smith’s
    remaining arguments on appeal are that there was insufficient
    evidence to convict him and that he was sentenced in
    violation of Blakely v. Washington, 124 S. Ct. 2531 (2004),
    and United States v. Booker, 375 F.3d 508 (7th Cir. 2004),
    cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004)
    (No. 04-104). We affirm in part and vacate and remand in
    part. * * *

    Smith also argues on appeal that his sentence violates the
    Sixth Amendment because it includes a two-level sentencing
    enhancement that was based on facts neither admitted
    by Smith nor found by a jury. See Blakely, 124 S. Ct. 2531;
    Booker, 375 F.3d 508. Smith testified at trial that he was
    not involved in the drug sale and that the reason he went to
    the park twice was to plan a basketball game with Grant.
    At sentencing the district court imposed an enhancement
    for obstruction of justice because it concluded that Smith
    committed perjury with his testimony. Under Blakely and
    Booker, an increase in the defendant’s sentence may not be
    based solely on a judge’s findings of fact, so we vacate the
    enhancement and remand for resentencing.

    Thus we AFFIRM the judgment of conviction but VACATE
    the sentence and remand for resentencing.

    Posted by Marcia Oddi on Monday, December 27, 2004
    Posted to Ind. (7th Cir.) Decisions

    Indiana Government - Locals bemoan loss of state's tax chief

    This interesting story from today's Munster Times is headlined: "Locals bemoan loss of state's tax chief: Even GOP officials laud Democratic government finance commissioner." Some quotes:

    CROWN POINT | Both Lake County Democrats and Republicans bemoan the likely replacement of the state's top tax official when Gov.-elect Mitch Daniels takes office in January.

    Like other state department heads, Beth Henkel, commissioner of the Indiana Department of Local Government Finance, has penned her resignation letter and is preparing to box up her Indianapolis office.

    "I am currently accepting a limited number of fabulous job offers. That's what my husband tells anyone who asks," Henkel said, laughing.

    But county officials hope Daniels will reject her resignation letter and retain Henkel, the woman who led the county through much of the state's controversial 2002 property reassessment. * * *

    "I'm a good Republican," said St. John Township Assessor Hank Adams. "But she is by far the hardest working and most knowledgeable person we have ever had in that post. I'd hate to see her go.

    "I wish the new governor would reconsider this one. She's better than all the rest of the (former state commissioners) put together. It's so unusual that you find such a hard worker in a political job like that."

    At a recent county Board of Commissioners' meeting Henkel attended, she received a standing ovation. * * *

    "We will miss her a lot, and I am deeply concerned about what this means for the taxpayers of Lake County," Treasurer Peggy Holinga Katona said. "I'm a little nervous about this because (Henkel) has been here since day one. She really did spend an awful lot of time up here with us."

    Henkel downplayed the significance of her role.

    "The new commissioner will have to rely a great deal on my good staff," said the Indianapolis resident and mother of three. "I would be more concerned if changes were made with them."

    Marc Lotter, spokesman for Daniels' transition team, said no decision has been announced on who will head the Department of Local Government Finance after the governor-elect takes office.

    Posted by Marcia Oddi on Monday, December 27, 2004
    Posted to Indiana Government

    Sunday, December 26, 2004

    Indiana Government - Recent stories

    Niki Kelly of the Fort Wayne Journal Gazette has a major story today titled "Budget top priority for legislature: Gambling, daylight-saving time, education prominent on agenda." The " five major items Hoosiers should keep their eye on this session" include, per the story: the budget crunch, gaming revenue, daylight-saving time, school financing, and Daniels' relationship with the GOP house. A second story, focusing on the concerns of NE Indiana legislators, is available here.

    The Indianapolis Star has a story today headlined "State troopers cheer choice of new boss: Officers organizations endorse Paul Whitesell as new superintendent."

    The Star's Sunday Behind Closed Doors column leads with a piece headlined "Minorities still missing from Daniels' new team," that reads:

    Last week, Gov.-elect Mitch Daniels named five more men to key positions, including inspector general, Indiana State Police superintendent and Department of Environmental Management commissioner. He's made at least 20 top appointments, and so far, none has been black or Hispanic. A few have been women.

    There are still some big jobs left to fill. He needs to pick leaders for the teachers pension fund, the departments of correction, workforce development, insurance, labor, revenue and transportation.

    The appointments so far seem to contrast with his campaign, which included an outreach effort to minority voters that was far more impressive than efforts of other Republican candidates.

    I'd say, very few women. The ILB's newly updated organization chart of the new Daniels' administration is now available.

    A story today in the Gary Post Tribune underlines something that has been said to me several times over the past months:

    Disappointed with the previous state administration, some environmentalists are cautiously optimistic about the incoming governor. They hope Gov.-elect Mitch Daniels follows through on his plan to make the state’s environmental department more agile and responsive. And so far, they say, Daniels seems interested in hearing what they think.

    Members of Daniels’ transition team met early this month with leaders of several environmental organizations and asked for their comments.

    “I’m impressed with his efforts to reach out to the environmental community,” said Bowden Quinn, a Sierra Club organizer who formerly headed the Grand Calumet Task Force. Gov. Joe Kernan’s administration “didn’t seem to be interested in what we have to say,” he said. * * *

    “Environmental protection and economic growth are not antagonistic goals, and absolute blind pursuit of either is a mistake,” Daniels said during his campaign. He also told the Hoosier Environmental Council, in response to a questionnaire, that he wants a more responsive IDEM. “The agency must move faster — the correct answer may well be 'no,’ but citizens deserve to have that answer quickly,” Daniels said. * * *

    Many IDEM permits for discharges into streams and lakes are outdated — some by more than 10 or 20 years. In the meantime, companies or municipalities are operating under the old permit limits. “Maybe running things in a more businesslike atmosphere wouldn’t let a permit be expired for 224 months,” [environmentalist Tom] Anderson said. “Getting permits current would help both parties.”

    Finally, for now, remember that you can get a quick summary of all entries about the new administration and upcoming legislative session by clicking on the category Indiana Government in the right column.

    Posted by Marcia Oddi on Sunday, December 26, 2004
    Posted to Indiana Government

    Saturday, December 25, 2004

    Environment - South Bend Airport lacks stormwater permit

    "Airport lacks stormwater permit" was the headline to this interesting story yesterday in the South Bend Tribune. Some quotes:

    SOUTH BEND -- Despite increasing scrutiny of environmental issues with the nation's airports, South Bend Regional Airport doesn't have a required stormwater discharge permit to dispose of potentially hazardous chemicals.

    The Indiana Department of Environmental Management said there's no evidence that airport officials have ever applied for the permit, which is required of the state's airports every five years.

    "We have a lot of airports in our database, but South Bend is not among them," said Cyndi Wagner, chief of IDEM's wet weather section.

    The airport has 30 days to apply for a permit under IDEM's stormwater management program, a process that began Wednesday, airport director John Schalliol said. * * *

    Schalliol said he "first became aware" the state considers groundwater to be public waters during Wagner's presentation in October, at the Aviation Association of Indiana's annual conference.

    "That started me thinking about our situation here at the airport, and that was the genesis for the study ... " Schalliol said.

    Wagner said airports have been covered under the state's general permit rules for industrial discharges since 1992.

    IDEM's general permits require airport officials to test stormwater discharges every year, have a pollution control plan in place and submit annual reports showing how the plan is being implemented.

    Airports fall under the state's industrial stormwater discharge rules, Wagner said, because of activities like painting, maintenance, fueling and deicing that involve hazardous chemicals. Airports must devise plans so "waters of the state" aren't harmed, she said.

    The situation with South Bend Regional is perplexing, Wagner said, because her section does plenty of "outreach" with various trades it regulates, including the aviation industry.

    Posted by Marcia Oddi on Saturday, December 25, 2004
    Posted to Environment

    Environment - Dairy farms (and CAFOs) in the midwest

    AGRICULTURE IN THE 21ST CENTURY: Wisconsin dairy feels squeeze - 'Cheeseheads' find it hard to compete with big factory farm operations out West. That is the headline to a lengthy story this week in the Chicago Tribune about the decline of mid-size dairy farms. Some quotes:

    Wisconsin has lost nearly four dairy farms a day in recent years. Almost a third of Wisconsin's dairy farmers shut down from 1997 through 2002, with the number dropping from 24,065 to 16,866.

    The Deitelhoff farm also is part of another endangered group: midsize farms.

    According to the most recent Census of Agriculture, published every five years by the U.S. Department of Agriculture and released last summer, the number of tiny farms and very large farms is growing. But midsize farms are on the wane.

    In traditional dairy states such as Wisconsin, Pennsylvania and New York, the farms remain relatively small compared to those out West. As a result, the nexus of America's dairy industry is shifting to such places as New Mexico and Idaho with cheap land and fewer people to complain about the smells wafting from a 5,000-cow dairy farm.

    Wisconsin still leads the nation in the number of dairy farms, though California is No. 1 in milk production. Wisconsin is clinging to the title of the nation's top cheesemaker, with California closing in fast. Wisconsin residents so identify with the dairy industry that they refer to themselves as "cheeseheads" and voted overwhelmingly that the quarter honoring the state include a dairy cow and a hunk of cheese.

    While the number of farms plummeted in Wisconsin, the total number of milk cows declined by only 9 percent, indicating that dairy farms are getting bigger. But Wisconsin still lags far behind emerging dairy states in the West. In 2002, for instance, Wisconsin's dairy farms averaged 74 cows; that same year, New Mexico dairy farms had an average of 836 cows.

    To combat the trend, state officials created a program to encourage dairy farmers to expand or to find a niche such as organic, and the state is emphasizing the quality of Wisconsin's dairy products over its Western rivals. But some argue that the state isn't doing nearly enough.

    "Wisconsin and Minnesota basically have these invisible signs saying `No Large Dairies Need Apply,'" said Mary Ledman, a dairy industry analyst who grew up on a 50-cow dairy farm in Wisconsin. Noting that other states such as South Dakota and Iowa are welcoming large-scale dairies, she said, "You don't see that kind of welcome wagon in the Upper Midwest, and as a result, we are exporting our dairy industry elsewhere."

    Ledman said opponents of large-scale dairies are ignoring the reality of the business. Traditional small dairy farms like the one she grew up on are so inefficient and antiquated that they can't compete; as a result, she said, most children of dairy farmers have found work elsewhere.

    "Minnesota and Wisconsin need to decide whether they want a dairy industry," she added. "And if they do, they have to realize that it's not going to look like their daddy's dairy industry." * * *

    But Tony Ends, a vegetable farmer in southern Wisconsin, said the state should focus on distinguishing the quality of its dairy products because it doesn't have the space, weather or resources to compete with Western states to produce the cheapest milk. The big dairies, he said, simply create a glut of milk that is driving down the price.

    "The price of milk is what is driving farmers out of business," said Ends, who along with his neighbors is fighting to close a mega-dairy in his neighborhood because of health, environmental and animal-welfare concerns. "Wisconsin will never outproduce California. What Wisconsin needs to do is distinguish itself with specialty cheese and quality."

    Just north of the Illinois border, in the tiny town of Brodhead, Dan and Mary Monson represent the new face of Wisconsin dairy farms. They operate a dairy that is as much factory as farm, a meticulous, high-tech operation with 1,500 cows and 20 full-time employees. Those with experience at milking start at $2,000 a month for a 54-hour work week. * * *

    The cows at Spring Grove Dairy spend their days in long metal barns on concrete floors with fresh sawdust and shredded tires as bedding. A computer keeps close tabs on how much milk each cow is producing via a computer chip around each animal's neck.

    The manure is regularly flushed out of the barns into clay-lined lagoons behind the barns, and the liquid manure is later injected into the soil of surrounding farmland as fertilizer.

    While Monson said his "ag neighbors" have been supportive, he acknowledged that some others have griped about the smell. But he points out that his family, which includes four children, lives on the property, and he argues that his farm has done more good than harm to the community. * * *

    Overall, the Agriculture Department's five-year census provides a much bleaker picture of what is happening on American farms than a November USDA report that trumpeted record farm incomes for the second year in a row. But even an author of a farm income report said recent high prices for everything from soybeans to milk will give farmers only a temporary "breather" from the pressures of consolidation.

    "It's not going to change the outcome in the long run," said Roger Strickland, a USDA analyst, adding that the high prices eventually will come down. "It might slow it down a little. The thing that is driving consolidation is cost efficiency. The smaller guys are dropping out because they can't compete."

    Some argue that what is happening in agriculture is little different from what is happening elsewhere in the U.S. economy, with midsize groceries and hardware stores being replaced by mega-stores such as Wal-Mart and Home Depot.

    "The general picture is just that the economies of scale keep increasing," said Bruce Gardner, an agricultural economist at the University of Maryland. "The size of a farm that makes the most sense is larger than it used to be."

    Technological advances and changes to the structure of farms have driven the changes, Gardner said. As an example, he cited the advent of "contract" farming in which farmers raise pigs on contract for a meatpacking company rather than owning the animals themselves. The result has been larger hog farms and fewer hog farmers, a 37 percent drop from 1997 to 2002, according to the census.

    But others contend that consolidation all along the food chain, from seed companies to meatpackers, has hurt the ability of midsize farmers to compete. In the pork business, for instance, it's easier and cheaper for a meatpacker to contract all its hogs from one huge farm rather than buy them from 10 smaller farms.

    The critics also argue that U.S. farm subsidies favor industrial agriculture at the expense of smaller farms.

    "The fix was in to concentrate agriculture," said Tom Lyson, a professor of development sociology at Cornell University, who said the loss of midsize farms devastates rural communities. "It's the Wal-Marting of agriculture."

    An Indiana blog I read regularly, bigeastern, from North Judson attorney Marty Lucas, contained a thoughtful entry this week, written from the viewpoint of a small town Indiana attorney, that I believe is relevant here. I'm going to reproduce it in full below because it appears there is no way to link to individual entries in Marty's blog:
    CAFOs - 'the smell of money'? I attended a continuing legal education program in Indianapolis on Monday -- topic: Zoning and Land Use. A good program, put on by NBI, but the pervasively pro-development viewpoint of the legal profession always troubles me. One of the speakers (and a good one too) made a comment that I found particularly telling on the subject of CAFOs.

    The speaker described the odor emanating from these facilities as the smell of money and commented that people living in rural areas should expect to smell that smell, and shouldn't complain that it interferes with 'having a cookout'. I have a couple of major problems with this point of view:

    (1) It's condescending, even exploitative, to rural people. The person making such a comment almost invariably lives in an 'exclusive' (meaning expensive) suburb, and there is no way they would tolerate the 'smell of money' at their own home; and,
    (2) CAFOs aren't an established fixture of the rural landscape, they are a new concept, so the point that we ought to expect to smell them in rural areas is factually inaccurate.
    While it's true that an old-fashioned hog or horse barn would sometimes create a strong odor (mostly in spring, right after the thaw), this would be a seasonal, and generally short lived event. I grew up on a cattle farm; cattle in reasonable numbers roaming about in a field simply do not smell bad. I always found them kind of handsome looking out there, and reasonably clean creatures too given half a chance.

    We've been having cookouts, going fishing, and taking walks out here in the country for generations. Yes, at times there is a little smell of 'nature's fertilizer', but typically from a manure wagon not a 200,000 gallon pit. I want to be able to plan a cookout with guests, go for a hike, or simply open my window without smelling the wastes of 50,000 hogs.

    What gives the CAFO owner the right to trash his neighbors' property, and ruin their quality of life? Perhaps it is the 'smell of money' for the CAFO owner, but until they start sending me a check adequate to compensate for my loss, then it's the smell of lost money to me and the rest of the neighborhood. People choose to live in the country so they can breath fresh, sweet air, and drink pure water, and get together for a nice cookout on a fine summer day. Here's an idea -- put your CAFO in the 'burbs and you can smell the money and shop at Wal-Mart at the same time!

    If CAFOs are coming, then the odor and manure disposal issues have got to be solved. Simply driving into town in a BMW and telling me that I should learn to like it doesn't work. You want to run a business, it's on you to do so without hurting others, even 'rubes' that live out in the sticks.

    Oh, and just once, I'd like a CLE to include an attorney that isn't a tassle-loafer wearin' lap-dog for corporate interests. Just for variety.

    "CAFOs" are concentrated animal feeding operations. If you type "CAFO" in the search box in the right column, you will retrieve links to a number of other, related ILB entries.

    As reported in a quote from the ILB entry Dec. 23rd about the newly-appointed IDEM Commissioner, "[Thomas] Easterly will have to address widespread problems with bacterial pollution in waterways, from septic systems, wastewater treatment plants and livestock operations."

    Posted by Marcia Oddi on Saturday, December 25, 2004
    Posted to Environment

    Law - Illinois Attorney General creates public records counselor

    "Illinois A.G. Creates 'Public-Access Counselor' Position" was the headline of this report Thursday in Editor&Publisher. Some quotes:

    CHICAGO Illinois Attorney General Lisa Madigan has appointed the state's first "public-access counselor," who will work to promote compliance with state public-records and open-meetings laws.

    Assistant Attorney General Terry Mutchler was named to the newly created position inside the attorney general's office. The public-access counselor will resolve sunshine-law disputes and educate public officials on access issues, Madigan said in a press release.

    "It is critical that both the public and public officials understand these laws and that all public officials know their obligations under these laws," Madigan said. "Open and honest government depends on the full participation of citizens in their government and the free exchange of information between government and it citizens." * * *

    "This may be the biggest step toward government accountability in the state's history," said Phil Kadner, a columnist for the Daily Southtown in Chicago. "News media organizations and citizen watchdog groups believe that a public access counselor, by documenting complaints and unresolved problems, will ultimately be able to make a case for improving the existing laws and toughening the enforcement provisions."

    Madigan, who is in her first term, made improving public access to government documents and meetings an issue in her campaign. Several other states, including neighboring Indiana, have formal government positions responsible for sunshine-law compliance.

    This story recalls the Dec. 21 ILB entry about the Kentucky Attorney General's ruling that: "Public agencies cannot simply claim records do not exist and they must make a realistic effort to search for them in response to requests under the Kentucky Open Records Law."

    Here is the link to the Indiana Public Access Counselor website. The site makes available copies of each advisory opinion issued by the Counselor. Here are the links to those issued in 2004. The most recent are at the end of the list. I took a look at some of the most recent opinions this morning and one fact stands out immeidately. In answer to almost every complaint is the statement: "The agency did not receive the request that is the subject of your complaint." A word to the wise -- use certified mail or hand deliver and get a time-stamped receipt.

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

    Friday, December 24, 2004

    Environment - Recent Stories

    "MSD praised on erosion control: Audit says agency still must do more" is the headline of a recent story in the Louisville Courier-Journal. Some quotes:

    The Metropolitan Sewer District is doing a good job enforcing an ordinance designed to keep mud from choking the life out of area waterways, but there's still work to be done, according to an agency audit. * * *

    As part of the federal Clean Water Act, communities are required to limit erosion, which can cover and kill aquatic life, contributes to conditions that make water unsafe for swimming or drinking, clogs storm drains and fills marinas and river channels.

    MSD four years ago concluded that local streams "are dying," in part because of sediment. And in 2001, the former Jefferson County government approved an erosion-control ordinance to deal with Kentucky's most widespread water-pollution problem: sediment in waterways. In Jefferson County, much of the mud comes from building sites.

    The audit that MSD released this week follows a Courier-Journal review earlier this year [access the ILB entry here, from 10/24/04] that found the agency often takes longer to act on erosion-control enforcement cases than called for, and that the agency has been reluctant to issue fines.

    "New Rules Issued for National Forests: Some Environmental Protections Eased" was the headline to this story Thursday in the Washington Post. The lead:
    The Bush administration issued comprehensive new rules yesterday for managing the national forests, jettisoning some environmental protections that date to Ronald Reagan's administration and putting in place the biggest change in forest-use policies in nearly three decades.

    The regulations affect recreation, endangered-species protections and livestock grazing, among other things, on all 192 million acres of the country's 155 national forests. Sally Collins, associate chief of the U.S. Forest Service, said the changes will replace a bureaucratic planning process with a more corporate management approach that will allow officials to respond to changing ecological and social conditions.

    The new rules give economic activity equal priority with preserving the ecological health of the forests in making management decisions and in potentially liberalizing caps on how much timber can be taken from a forest.

    The NY Times story, also published yesterday, reports:
    The Bush administration issued broad new rules Wednesday overhauling the guidelines for managing the nation's 155 national forests and making it easier for regional forest managers to decide whether to allow logging, drilling or off-road vehicles.

    The long-awaited rules relax longstanding provisions on environmental reviews and the protection of wildlife on 191 million acres of national forest and grasslands. They also cut back on requirements for public participation in forest planning decisions.

    Forest Service officials said the rules were intended to give local foresters more flexibility to respond to scientific advances and threats like intensifying wildfires and invasive species. They say the regulations will also speed up decisions, ending what some public and private foresters see as a legal and regulatory gridlock that has delayed forest plans for years because of litigation and requirements for time-consuming studies. * * *

    The original 1976 law on forest management was intended to ensure that regional managers showed environmental sensitivity in decisions on how the national forests would be used. During the 1990's, the Clinton administration sought major revisions in the rules governing how the act was carried out. But the Clinton-era regulation was not completed in time to take effect before President Bush assumed office.

    The new rules incorporate an approach that has gained favor in private industries from electronics to medical device manufacturing. The practice, used by companies like Apple Computer, allows businesses to set their own environmental goals and practices and then subjects them to an outside audit that judges their success.

    These procedures are called environmental management systems. When the Forest Service started investigating these systems, said Fred Norbury, a deputy associate chief at the Forest Service, "what we discovered to our surprise is that the U.S. is a little behind the rest of the world and we in government are a little behind the curve."

    In the case of the Forest Service, the supervisors of the individual forests and grasslands will shape forest management plans, and the effects of those will be subject to independent audits.

    The auditors the Forest Service chooses could range from other Forest Service employees to outsiders, said Sally Collins, an associate chief at the Forest Service. She said the auditors could come from an environmental group or an industry group like timber "or a ski area, local citizens or a private contractor."

    Posted by Marcia Oddi on Friday, December 24, 2004
    Posted to Environment

    Thursday, December 23, 2004

    Indiana Decisions - Four today from Court of Appeals

    Carol J. Blakney v. State of Indiana (12/23/04 IndCtApp) [Criminal Law & Procedure]
    Vaidik, Judge

    Carol J. Blakney appeals her conviction for criminal trespass. Because the evidence shows that Blakney did not enter the real property of another beyond a posted “No Trespassing” sign and that she did not knowingly or intentionally aid, induce, or cause another person to do so, we find that the evidence is insufficient to support her conviction. Accordingly, we reverse. * * *

    [Note: This sounds familiar because on 10/12/04 a different panel decided the case of the husband changed with trespassing. This is the wife. In Oct. the Muncie Star-Press coverage was headlined "Hog-farm trespass conviction upheld."]

    To convict Blakney of trespass as charged in this case, the State must have proved that Blakney, who did not have a contractual interest in the property, knowingly or intentionally entered the Whiteheads’ real property located on County Road 650 South after having been denied entry by the Whiteheads or the Whiteheads’ agent. Ind. Code § 35-43-2-2(a)(1). A person has been “denied entry” under subsection (a)(1) when the person has been denied entry by means of “posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public.” I.C. § 35-43-2-2(b)(2). * * *

    Here, the evidence shows that Blakney was seated behind the wheel of the Honda, which was parked in the grass between County Road 650 South and the “No Trespassing” sign on the gate. Although the “No Trespassing” sign was visible from the road, we nevertheless find that a person is not denied entry to another’s real property within the meaning of Indiana Code § 35-43-2-2(b)(2) until he or she actually enters the property beyond the notice. Although a person may be able to see the notice from afar, that person is still left without information to discern where the property protected by the notice actually begins. To eliminate such confusion, we hold that the denial of entry becomes effective at the point where the notice is actually posted and not at some indeterminate point in front of the notice. If the Whiteheads did not want people to enter their real property between County Road 650 South and the “No Trespassing” sign on the gate, then they should have posted the sign closer to County Road 650 South. Because the evidence shows that the Honda, in which Blakney was seated, was parked in front of the “No Trespassing” sign and that Blakney did not proceed past the sign, Blakney was not denied entry to the Whiteheads’ real property. Therefore, she did not commit the offense of criminal trespass.

    However, this does not end our inquiry into the sufficiency of the evidence because the State also argues that Blakney’s conviction can be sustained under an accomplice liability theory. * * *

    Here, the evidence simply shows that when Adams arrived on the scene, Blakney was seated behind the wheel of the Honda and Alves was standing on the gate. This Court affirmed Alves’ conviction for criminal trespass on appeal because “[w]hile there was no evidence Alves had opened or climbed over the gate and walked past the ‘No Trespassing’ sign, the jury could have reasonably inferred that at least part of his body entered the airspace above the Whiteheads’ property.” Alves, 816 N.E.2d at 66. Because the evidence shows that Alves did not open or climb over the gate, the evidence is insufficient to prove that Blakney knew Alves would enter the airspace above the Whiteheads’ property with part of his body. Accordingly, the evidence is insufficient to prove that Blakney knowingly or intentionally aided, induced, or caused Alves to commit the offense of criminal trespass. Because the evidence is insufficient to support Blakney’s conviction for criminal trespass under either a principal or accomplice liability theory, we must reverse her conviction. Reversed.
    RILEY, J., and CRONE, J., concur.

    In Re the Paternity of D.E.W.(K.) & S.M.W. (12/23/04 IndCtApp) [Family Law]
    Najam, Judge
    [Issue] Whether the trial court committed reversible error when it did not make specific findings and conclusions pursuant to Indiana Trial Rule 52. We affirm. * * *

    The trial court has a duty to determine whether a modification of existing support and custody arrangements is in the best interests of the children, and its decision to grant Mother’s motion to correct error and to hold a new hearing comports with that duty. Accordingly, we hold that the trial court did not abuse its discretion when it granted Mother’s motion to correct error. In addition, the trial court’s failure to issue findings in accordance with Trial Rule 59(J) is not reversible error because its rationale is readily apparent from its ruling. Affirmed.
    SULLIVAN, J., and BARNES, J., concur.

    Jason Patrick v. State of Indiana (12/23/04 IndCtApp) [Criminal Law & Procedure]
    Najam, Judge
    In February 2004, Jason Patrick pleaded guilty to Murder; Battery, as a Class B felony; and Criminal Confinement, as a Class C felony. Following a sentencing hearing, the trial court identified mitigating and aggravating circumstances and sentenced Patrick to the maximum term of ninety-three years. Patrick now appeals and raises a single dispositive issue for review: whether his sentence violates the Sixth Amendment under Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied. We reverse and remand. * * *

    As we have discussed, the trial court identified five aggravating factors: (1) Patrick’s criminal history; (2) his probationary status at the time he committed the instant offense; (3) the victim’s age (relevant to murder only); (4) the likelihood that he will re-offend; and (5) the nature and circumstances of the crimes. Of those aggravators, the court explained that Patrick’s criminal history was “insignificant.” Indeed, Patrick has only one misdemeanor conviction. The court also stated that the two “overriding” aggravating factors were the likelihood that Patrick will commit more crimes and the nature and circumstances of his offenses. Those two aggravators are improper, and the sentencing statement shows that this is not a case in which the invalid aggravating circumstances played a relatively unimportant role in the trial court’s decision. * * *

    Reversed and remanded.
    VAIDIK, J., concurs in part with separate opinion.
    KIRSCH, C.J., concurs in part and dissents in part with separate opinion.

    VAIDIK, Judge, concurring in part.
    I concur in result. I part ways with the majority’s conclusion that Blakely is not implicated as to the aggravator that Patrick was on probation at the time he committed the instant offense. The majority reaches this conclusion, pursuant to Bledsoe, by finding that this aggravator is derivative of Patrick’s criminal history. * * * Therefore, I think that the aggravator at issue here—that Patrick was on probation at the time of the offense—is a “fact” that must be admitted by Patrick or that a jury must find beyond a reasonable doubt.

    KIRSCH, Chief Judge, concurring in part and dissenting in part .
    I fully agree with the holding of the majority that the decision of the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied, implicates Indiana’s sentencing scheme, but I believe that the Patrick failed to preserve the issue for appellate review by failing to object at the time of sentencing. I, therefore, respectfully dissent and would affirm the decision of the trial court in all respects.

    James Alexander v. State of Indiana (12/23/04 IndCtApp) [Criminal Law & Procedure]
    Bailey, Judge
    Appellant-Defendant James S. Alexander (“Alexander”) appeals his conviction for the murder of his wife, Mary Bland (“Wife”). We reverse and remand for possible retrial. * * *

    [Issues] Whether the trial court abused its discretion by excluding the testimony of an expert witness; and Whether the trial court abused its discretion by instructing the jury. * * *

    [H]ere, Doctor Coons was the sole witness prepared to testify that Alexander was legally insane at the time that he committed the offense. He was also the only expert witness with an opinion contrary to the three court-appointed experts on the issue of Alexander’s sanity at the time of Wife’s murder and, therefore, the only viable witness to support Alexander’s insanity defense. As such, the erroneous exclusion of Doctor Coons as a witness was not harmless. Accordingly, the trial court committed reversible error when it excluded his testimony. * * *

    Alexander further argues that the trial court abused its discretion by instructing the jury. Our resolution of the exclusion of a witness issue obviates the need to address the appropriateness of the trial court’s jury instructions. However, because this issue may reappear, we will address it here. * * *

    In the present case, Alexander asserts that the trial court improperly instructed the jury regarding the intent element of murder by giving State’s Instruction Two. Alexander also asserts that the trial court abused its discretion by refusing to give an instruction on the penal consequences of a “not guilty by reason of insanity” verdict, i.e., Instruction Nine, because the State misled the jury that such a verdict was tantamount to a finding of “not guilty.” We separately address each of these arguments. * * *

    For the foregoing reasons, we reverse Alexander’s murder conviction and remand for possible retrial. Reversed and remanded.
    SHARPNACK, J., and MAY, J., concur.

    Posted by Marcia Oddi on Thursday, December 23, 2004
    Posted to Ind. App.Ct. Decisions

    Indiana Decisions - Supreme Court posts one

    In the Matter of Anonymous (12/23/04 IndSCt) [Attorney Disciplinary]
    Per Curiam

    In this attorney discipline case, the Disciplinary Commission has charged the respondent lawyer with communicating about the subject of a representation with a party the lawyer knew was represented by another lawyer and thereby using a method of obtaining evidence that violated the legal rights of the party. We agree that the respondent committed these violations and we write today to detail the basis of our conclusion. * * *

    The respondent and the Commission agree that the respondent should be privately reprimanded for his misconduct. Ordinarily, we would require a more stringent sanction for misconduct such as this, where an attorney uses improper means to secure or attempt to secure an advantage during litigation. However, we are influenced here by significant factors in mitigation, most notably the fact that, once the respondent learned of counsel’s objection to the affidavit, the respondent promptly withdrew it and the motion to sever. Other mitigating factors include the respondent’s cooperation with the Commission, that fact that his actions were not motivated by his own personal gain (but rather his effort zealously to represent his client), and the fact that the respondent has no prior history of disciplinary action. In light of these mitigating factors and the agreed resolution, we conclude that a private reprimand is not inappropriate in this case.

    Posted by Marcia Oddi on Thursday, December 23, 2004
    Posted to Ind. Sup.Ct. Decisions

    Indiana Decisions - 7th Circuit posts one

    American States v. Capital Assoc of Jackson County (SD ill)

    Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
    EASTERBROOK, Circuit Judge. According to a complaint
    filed in state court, Capital Associates of Jackson County
    sent an unsolicited advertisement to the fax machine of JC
    Hauling Company, thus violating 47 U.S.C. §227(b)(1)(C).
    JC Hauling launched a class action on behalf of all recipients
    of Capital Associates’ junk faxes. Capital Associates
    tendered the defense to American States Insurance Co.,
    which had issued a policy covering “advertising injury,”
    among other harms. American States, which has undertaken
    the defense under a reservation of rights, filed this
    federal suit seeking a declaratory judgment that the policy
    does not call for either defense or indemnity. * * *

    American States contended that sending unsolicited advertising
    by fax does not cause “advertising injury” and that,
    if it does, the recipient’s loss is “expected or intended from
    the standpoint of the insured.” But the district judge held
    that an unsolicited fax invades the recipient’s “privacy” and
    that American States therefore must defend its insured.
    The judge did not discuss the policy’s exclusion of expected
    or intended consequences and left several items dangling. * * *

    Ours is the first federal
    appellate decision on the subject, and for reasons already
    given we hold that an advertising-injury clause of the kind
    in American States’ policy does not cover the normal
    consequences of junk advertising faxes.
    For completeness we add that the property-damage clause
    in the policy is no more useful to Capital Associates; junk
    faxes use up the recipients’ ink and paper, but senders
    anticipate that consequence. Senders may be uncertain
    whether particular faxes violate §227(b)(1)(C) but all senders
    know exactly how faxes deplete recipients’ consumables.
    That activates the policy’s intentional-tort exception (which
    applies to the property-damage coverage though not the
    advertising-injury coverage): it forecloses coverage when the
    recipient’s loss is “expected or intended from the standpoint
    of the insured.” Because every junk fax invades the recipient’s
    property interest in consumables, this normal outcome
    is not covered.

    So clear is this that American States need not provide a
    defense to the suit, even though Illinois (whose law applies)
    requires insurers to defend when coverage is a close issue,
    whether or not the policy would provide indemnity. See,
    e.g., Aetna Casualty & Surety Co. v. Prestige Casualty Co.,
    195 Ill. App. 3d 660, 553 N.E. 2d 39 (1st Dist. 1990). This
    issue is not close. REVERSED

    Posted by Marcia Oddi on Thursday, December 23, 2004
    Posted to Ind. (7th Cir.) Decisions

    Indiana Government - [Updated] Daniels appoints IDEM head

    A press release this afternoon from Daniels' headquarters:

    Governor-elect Mitch Daniels Names Northwest Indiana Business/Environmental Professional Commissioner of IDEM

    INDIANAPOLIS - Today Governor-elect Mitch Daniels announced the appointment of a longtime environmental expert from Northwest Indiana to lead the Indiana Department of Environmental Management (IDEM).

    "Economic development and strong environmental protection can co-exist," said Governor-elect Daniels. "We will maintain high standards, but we will make faster and more consistent decisions, so Hoosier workers and farmers are no longer held back, and we stop driving new investment into other, more responsive states."

    Governor-elect Daniels named Thomas Easterly of Valparaiso to serve as Commissioner of IDEM. Easterly has worked on environmental issues in both government and business for 30 years. He is currently President of Environmental Business Strategies, Inc. He has previously held the positions of Manager, Environmental Planning and Improvement for NiSource and Superintendent of Environmental Services for Bethlehem Steel's Burns Harbor Division.

    Prior to entering the private sector, Easterly held numerous positions in the Air and Solid Waste Divisions of the New York State Department of Environmental Conservation.

    Easterly, 56, has a proven track record developing partnerships between industry and environmental groups. He helped start the Bethlehem Steel Community Advisory Committee to bring together Plant Management, the Steelworkers Union, Environmental Activists, EPA, IDEM, IDNR, NPS and residents surrounding the Burns Harbor Plant to improve the facility's environmental program. He also worked with the Indiana Dunes Environmental Learning Center to unite environmental advocates, educators, business representatives, and the National Park Service to improve children's understanding of the relationship between man and the natural environment.

    "Mitch knows IDEM can uphold its mission while becoming a partner rather than a barrier to the pursuit of more and better jobs in Indiana," said Easterly.

    [Updated 12/24/04] Here is the Indianapolis Star coverage today, headlined "Governor-elect taps new chief for state environment agency." Some quotes from the story:
    In announcing his selection of Easterly on Thursday, Gov.-elect Mitch Daniels reiterated a campaign pledge he made to speed up the environmental-permitting process. "Economic development and strong environmental protection can co-exist," Daniels said in a statement.

    The incoming commissioner, who is president of an environmental consulting firm he founded in 2002, shares that idea. Easterly, 56, wants to speed up the process and make sure the department is more consistent with its decisions, so businesses and communities know what to expect. He wants state regulators to realize that environmental regulations can't be so tough that the state drives companies out of business. "The goal is to have a good environment and to have healthy businesses that will fix the wage gap," said Easterly, who lives in Valparaiso. * * *

    Charlotte Read, assistant director of the Save the Dunes Council, said she and Easterly didn't always agree. But, she added, he was fair and worked hard to address environmental concerns. Pollution in northwest Indiana -- especially from the steel mills -- is one of the biggest threats to the Indiana Dunes National Lakeshore, she said. "We didn't always agree on how clean is clean," Read said. "But he's very dedicated to improving the environment, and I think he'll do a good job."

    One of Easterly's toughest challenges will be improving Indiana's air quality regarding ozone and fine particles -- especially in those areas that don't meet federal requirements, said Hoosier Environmental Council Executive Director Tim Maloney. In addition, Easterly will have to address widespread problems with bacterial pollution in waterways, from septic systems, wastewater treatment plants and livestock operations. "That," Maloney said, "will need a great deal of emphasis."

    The Gary Post-Tribune's story is headlined: "Valparaiso man to head IDEM." Some quotes:
    Indiana’s next environmental commissioner won’t have to be introduced to Northwest Indiana. Valparaiso resident Thomas Easterly will head the Indiana Department of Environmental Management, Gov.-elect Mitch Daniels announced Thursday. * * *

    Veteran environmentalist Charlotte Read was happy to hear of Easterly’s appointment. “He understands this region,” she said. “He cares about this region.”

    Read, who is retiring after a lengthy career with the Save the Dunes Council, co-chairs the Northwestern Indiana Regional Planning Commission’s air quality steering committee with Easterly.

    “We’ve known each other a long time,” she said. “We don’t always agree. But I know he is very knowledgeable, very competent, very dedicated.”

    Easterly formerly was superintendent of environmental services for Bethlehem Steel’s Burns Harbor Division. Before moving to Northwest Indiana, he worked for New York state’s Department of Environmental Conservation.

    Posted by Marcia Oddi on Thursday, December 23, 2004
    Posted to Indiana Government

    Environment - Two articles about land trusts today

    "Land trust surpasses 1,000-acre mark" is the headline to this story today in the Muncie Star-Press. Some quotes:

    MUNCIE - The amount of land protected by Red-tail Conservancy in East Central Indiana recently surpassed the 1,000-acre mark. The land trust, formed in 1999, recently acquired:

    - A conservation easement on 30 acres of wooded ravines and a waterfall on a stream called Cream Run several miles south of Richmond. * * *

    - Ownership of 19 acres of woodlands and wetlands along Big Blue River near Henry County Road 100-S. * * *

    - A conservation easement on 19 acres of farm land to be restored as wetlands along Interstate 69 near Ind. 236 in Madison County. * * *

    A conservation easement is a legal agreement between a landowner and a land trust to permanently protect property from development, even when it changes ownership.

    [Earlham College biology professor William Buskirk] noted. "It's still private land."

    Meanwhile, the Gary Post Tribune today had this story, headlined "Land trust’s back taxes on hold." Some quotes:

    CROWN POINT — Tempers flared Wednesday as the Lake County Property Tax Assessment Board of Appeals voted not to take action against an environmental land trust.

    The board voted for the second meeting in a row to table a vote on levying four years of back taxes for 215 undeveloped parcels the Shirley Heinze Land Trust owns around the county.

    The board’s inaction prompted Betty Wilusz, co-director of the Assessor Office’s not-for-profit department, to tell the members she was disappointed in them for not following the law.

    “The request (for tax-exempt status) should have been denied,” Wilusz said.

    By failing to present a plan for developing the scattered parcels, the land trust ran afoul of state laws governing tax-exempt status for not-for-profit groups prior to 2004, according to Wilusz and the office’s not-for-profit department co-director Sharon Fleming.

    The law was changed beginning with 2004 taxes to acknowledge some parcels are purchased expressly not to be developed, according to Warren Buckler, president of the board of directors of the Shirley Heinz Land Trust. But that change does not protect the group in earlier years, Wilusz said.

    Posted by Marcia Oddi on Thursday, December 23, 2004
    Posted to Environment

    Indiana Decisions - Transfer list for week ending December 24, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending December 24, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

    Two cases were granted transfer by the Supreme Court: the Court's opinion in Pugh v. State (granted with opinion) was posted yesterday (scroll down two entries); McDillon v. NIPSCO also was granted transfer (access 7/21/04 ILB summary here).

    Posted by Marcia Oddi on Thursday, December 23, 2004
    Posted to Indiana Transfer Lists

    Indiana Government - More on latest Daniels' appointments

    Updating our entry yesterday titled "Daniels appoints four more men to top state positions" (scroll down three entries) are several stories in this morning's publications.

    "Daniels names scandal buster: Clay County prosecutor to become state watchdog; governor-elect also fills 3 other law enforcement jobs" is the headline to this story by John Strauss in the Indianapolis Star. Some quotes:

    Gov.-elect Mitch Daniels, who campaigned on a pledge to end a "string of scandals" in state government, on Wednesday named four key law enforcement officials to his administration, including the new position of inspector general. Daniels appointed David Thomas, 43, Brazil, the Clay County prosecutor, to be the state's chief government watchdog, reporting directly to Daniels. "We will be very intent on rooting out either misspending or actual misconduct," Daniels said. "We've seen plenty of both, and nobody's been in there looking." * * *

    Daniels announced the appointments at a news conference at the Indianapolis Fire Fighters Union Local 416 hall, 748 Massachusetts Ave. The governor-elect, standing in the hall's museum among vintage firetrucks, said he planned to name commissioners of the Indiana Department of Environmental Management and the Department of Correction by the end of next week.

    "IDEM is a critical agency for reform if we're going to grow jobs and income in this state," he said. "We've got to get quicker (in regulatory actions). We've got to get more sensitive to the need for more Hoosiers to be working at better-paying jobs."

    Lesley Stedman Weidenbener of the Louisville Courier Journal reports:
    Daniels said that the inspector general will report directly to him and that the office will likely be combined with the state ethics commission.

    A staff for the new agency will be assembled by pulling talent from other agencies, Daniels said. An accountant or two likely will be taken from the State Board of Accounts to work on the investigations team, the governor-elect said.

    "We intend to invest David [Thomas of Brazil] with the authority, resources and support to ensure the citizens of Indiana that if anybody is abusing the public trust, they're not going to get away with it for long," he said.

    Republicans have long called for such an office, but Democrats — who until November controlled the Indiana House — were reluctant to create one. Daniels plans to do so by executive order, without approval from lawmakers.

    Sen. Luke Kenley, R-Noblesville, chairman of the Tax and Fiscal Policy Committee, said yesterday the inspector general will be helpful for both exposing fraud and abuse and for uncovering wasteful spending.

    "Everything you can do to focus on a daily basis on what problems we have is a good idea," Kenley said. "There may be a time when this office is no longer needed, but right now it will be an important part of finding out our problems."

    Here is the revised organization chart, prepared by the ILB, including the latest announcements.

    The Evansville Courier&Press story this morning, by Jennifer Whitson, focuses less on the new inspector general and more on the new Indiana State Police superintendent. So does the story in the Fort Wayne Journal Gazette by Dan Stockman, which begins:

    Gov.-elect Mitch Daniels has named a member of the Fort Wayne Police Department to be new superintendent of the Indiana State Police.

    Paul Whitesell, 53, is a member of Police Chief Rusty York’s staff, where he oversees training and is an in-house police psychologist. As superintendent of the state police, he’ll oversee about 1,300 state troopers.

    Whitesell has a bachelor’s degree in police administration from Indiana University, a master’s degree in psychology from the University of Saint Francis and a doctorate in human services from Walden University. He is a 30-year police veteran and renowned trainer for the U.S. military, federal law enforcement agencies, and state and local police departments. He has served as a lieutenant at the Indiana Law Enforcement Academy, worked eight years with the Indiana State Police, and was the team leader of the SWAT teams for the Allen County Sheriff’s Department and the state police.

    [More] Here is the Daniels' staff press release on the law enforcement appointments, headlined "Governor-elect Mitch Daniels Calls Upon Hoosiers from Ft. Wayne, Lafayette, Brazil, and Columbus to Lead Public Safety Departments."

    Posted by Marcia Oddi on Thursday, December 23, 2004
    Posted to Indiana Government

    Wednesday, December 22, 2004

    Indiana Decisions - One Supreme Court, Two Court of Appeals opinions today

    Sandy Diane Pugh v. State of Indiana (12/21/04 IndSCt) [Criminal Law & Procedure]
    Sullivan, Justice

    The Court of Appeals held that the trial court lacked authority to order less than the entire amount of the sentence originally suspended when it revoked Defendant Sandy Diane Pugh’s probation. Following our opinion in Stephens v. State, we hold that when a trial court revokes a defendant’s probation, it may order less than the entire amount of the sentence originally suspended. * * *
    Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
    Note: Read ILB summary of Travis L. Stephens v. State of Indiana (12/10/04 IndSCt) here.

    Dutchmen Manufacturing Inc. v. Reynolds, Chad, et al. (12/22/04 IndCtApp)
    Baker, Judge

    Appellant-defendant Dutchmen Manufacturing, Inc. (Dutchmen) appeals the trial court’s denial of its motion for summary judgment against appellees-plaintiffs Chad Reynolds (Reynolds) and Don Reynolds. Specifically, Dutchmen raises three issues, one of which we find dispositive: whether the scaffolding at issue was a chattel for purposes of Section 388 of the Restatement (Second) of Torts. Finding that the scaffolding had merged into the real estate, we reverse and remand to the trial court with instructions that judgment be entered in favor of Dutchmen. * * *

    Because the scaffolding ceased to be personal property on February 28, 1999, Dutchmen could not have supplied a chattel as required by Section 388. Therefore, this element of Reynolds’s claim is negated, and the trial court erred in denying summary judgment on this issue.

    The judgment of the trial court is reversed and remanded with orders that judgment be entered in favor of Dutchmen.
    SHARPNACK, J., and FRIEDLANDER, J., concur.

    Jeffrey Williams v. State of Indiana (10/13/04 IndCtApp)
    [Apparently originally NFP]
    Friedlander, Judge
    Jeffrey Williams was charged with four counts of Criminal Deviate Conduct and Rape, all class A felonies. On interlocutory appeal, Williams presents a single issue for review: Did the trial court improperly deny his Motion for Specific Discovery requesting the alleged victim’s mental health and prescription records? We affirm in part, reverse in part, and remand. * * *

    Thus, in determining whether Williams’s request was properly denied, we must balance K.W.M.’s right to maintain the confidentiality of her prescription drug records with Williams’s right to adequately defend the instant charges. Keeping information confidential may suffice as a reason to deny discovery, In re WTHR-TV, 693 N.E.2d 1, and I.C. § 25-26-13-15 indicates our legislature’s desire to protect the confidentiality of prescription drug records in certain circumstances. Here, however, the underlying crimes are of special significance. Williams is charged with rape and criminal deviate conduct based on K.W.M.’s graphic allegations of sexual assault. Williams and K.W.M. shared a prior intimate relationship before the incident in question. The record indicates that Williams will defend himself, in part, on grounds that the events were consensual based on the couple’s past romantic relationship and their particular sexual proclivities. In sexual assault cases, perception of events and credibility are crucial factors with the potential to significantly influence a fact-finder’s determination. Access to information that would call into question such perception could affect Williams’s ability to adequately defend himself and is paramount to K.W.M.’s confidentiality concerns as asserted by the State. We therefore reverse the trial court’s denial of Williams’s Motion to the extent it seeks access to K.W.M.’s prescription drug records. Judgment affirmed in part, reversed in part, and remanded.
    BAKER, J., and DARDEN, J., concur.

    Posted by Marcia Oddi on Wednesday, December 22, 2004
    Posted to Ind. Sup.Ct. Decisions

    Indiana Decisions - 7th Circuit issues two

    Hubanks, Alphonso v. Frank, Matthew (ED Wis.)

    Before BAUER, RIPPLE, and EVANS, Circuit Judges.
    BAUER, Circuit Judge. Petitioner-Appellant Alphonso
    Hubanks brought this habeas corpus claim under 28 U.S.C.
    § 2254, challenging his Wisconsin state conviction for four
    counts of first-degree sexual assault, one count of armed
    robbery, and one count of abduction. The district court
    denied the petition and discovery. Hubanks appeals, and we
    IL Clean Energy Comm v. Filan, John B. (ND Ill.)
    Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
    POSNER, Circuit Judge. This is a suit to enjoin the State
    of Illinois from enforcing a demand that the plaintiff
    foundation turn over $125 million of its assets to the state.
    This is not a tax, but a taking. Brown v. Legal Foundation of
    Washington, 538 U.S. 216, 233-35 (2003). The district court
    granted summary judgment for the plaintiff, ruling that the
    demand if enforced would be a taking of private property
    for public use without just compensation, and therefore unconstitutional;
    and the state appeals. * * *

    We conclude that the State of Illinois would be violating
    the Constitution if it confiscated any part of the foundation’s
    assets. The judgment in favor of the foundation is therefore AFFIRMED.

    Posted by Marcia Oddi on Wednesday, December 22, 2004
    Posted to Ind. (7th Cir.) Decisions

    Indiana Government - Daniels appoints four more men to top state positions

    The Indianapolis Star is reporting on its website:

    Gov.-elect Mitch Daniels today named four key public safety positions in his new administration.

    Paul Whitesell, 53, of Fort Wayne, will be superintendent of the Indiana State Police, Daniels said. Whitesell is a 30-year law enforcement veteran and trainer for the U.S. military and federal, state and local police departments.

    Roger Johnson, 59, of Columbus, was named Indiana State Fire Marshal. Johnson, who has 40 years of firefighting experience, previously served as chief of the East Columbus Fire Department.

    David Thomas, 43, of Brazil, was appointed inspector general. Thomas, in his third term as Clay County prosecutor, will take the lead in rooting out and preventing fraud in state government, Daniels said. Thomas is the state's first inspector general, according to the governor-elect.

    David Heath, 57, of Lafayette, a former two-term mayor of Lafayette and former two-term sheriff of Tippecanoe County, was named director of the State Alcohol and Tobacco Commission.

    Here is the revised organization chart, prepared by the ILB, including today's announcements.

    Perhaps more later

    Posted by Marcia Oddi on Wednesday, December 22, 2004
    Posted to Indiana Government

    Environment - Stories today, so far

    "Floyd wants state to address runoff" is the headline of this story published yesterday in the Louisville Courier Journal. A quote:

    The Floyd County Plan Commission voted unanimously last night to ask state environmental agencies to enforce statutes regulating runoff from the Crestwood Manor subdivision in Floyds Knobs.

    The action followed a presentation by Scott Hughes about his two-year battle with developers of the 74-acre subdivision. The development, he said, has repeatedly sent mud flowing into two ponds near his house that are owned by neighborhood residents.

    Mud from Crestwood Manor has dirtied the ponds, and in May 2003, an attempt by an environmental contractor hired by developers to clear up the ponds killed scores of fish in one, according to news reports.

    "Development in Floyd County is at a crossroads," Hughes said.

    "The bottom line is that you can have the most comprehensive and well-written ordinances, but if there is no enforcement, you might as well have nothing," he said.

    "Floyd to expand junkyard oversight" is the headline to this story today in the LCJ. A quote:
    In the wake of environmental violations cited at a controversial Floyds Knobs junkyard, the lawyer for the Floyd County Plan Commission said yesterday that he will ratchet up efforts to make sure the operation complies with state and local requirements.

    "I'm afraid we might find a lot of the ground contaminated," said Plan Commission lawyer Derrick Wilson.

    At a hearing in Floyd Circuit Court next month, Wilson said he will ask a judge to require junkyard operator Denny Andres to pay for a thorough environmental evaluation of the Atkins Road operation, which at times has been estimated to cover more than 40 acres.

    The evaluation is necessary, Wilson said, because an inspector for the Indiana Department of Environmental Management reported that on Dec. 7 he found oil or other automotive fluids spilled on the ground near a car-crushing machine and a pile of at least 1,000 waste tires.

    In a letter dated Dec. 15, the agency said both situations violate state environmental regulations and must be eliminated by the time of a follow-up inspection in 30 days.

    Posted by Marcia Oddi on Wednesday, December 22, 2004
    Posted to Environment

    Tuesday, December 21, 2004

    Indiana Government - Daniels Taps Muncie Native as Senior Advisor

    [Update] Here is a revised organization chart, prepared by the ILB, including today's announcement.]

    Per a press release dated 12/20/04, but just posted on the Daniels' website:

    Governor-elect Daniels Taps Muncie Native to Handle Big Economic Development Projects

    INDIANAPOLIS - Governor-elect Mitch Daniels announced today that John W. Clark will serve as Senior Advisor to the Governor for Growth Policy and Projects. Clark, 59, is a former government and utility executive with extensive energy, environmental and economic development experience.

    "John brings state, national, and international credentials to our economic development efforts,” said Governor-elect Daniels. “He will help us grow Indiana jobs and incomes by focusing on major projects such as new ‘clean coal’ power plants, expansion of the Crane military facility's technology base, and seeing that state government becomes an enabler of new jobs, not an obstacle to them."

    Clark recently retired as Senior Vice President of CMS Energy (NYSE) and its principal subsidiary, Consumers Energy, Michigan's largest natural gas and electric utility. His 35-year career has included government service in the U.S. House of Representatives, U.S. Department of Energy, and he was one of the founding staff members at the U.S. Environmental Protection Agency. At CMS, he was responsible for all public and governmental affairs—including economic development—and co-chaired the Michigan Economic Development Foundation with then-Governor John Engler. Clark was President of CMS's charitable foundation and served on the boards of both the U.S. and Michigan Chambers of Commerce.

    "I look forward to joining Mitch's team to help grow Indiana jobs and incomes through solid, sustainable government policies and problem-solving at all levels of the economic development process," said Clark. "We have an historic opportunity to create good new jobs to benefit all Hoosiers and keep our 'best and brightest' here at home."

    A graduate of Indiana University, Clark now serves on the Board of Visitors of IU's School of Public and Environmental Affairs and chairs its current capital campaign. A native of Muncie, John and his wife Carole, live in Bloomington.

    Posted by Marcia Oddi on Tuesday, December 21, 2004
    Posted to Indiana Government

    Indiana Decisions - Six today from Court of Appeals

    Larry Dorn v. State of Indiana (12/21/04 IndCtApp) [Criminal Law & Procedure]
    Friedlander, Judge

    Following a bench trial, Larry Dorn was convicted of Promoting Prostitution, a class C felony, Patronizing a Prostitute, a class A misdemeanor, and two counts of Intimidation, both as class D felonies. Dorn appeals only one of those convictions, challenging the sufficiency of the evidence supporting his conviction of promoting prostitution. We affirm. * * *
    DARDEN, J., and MATHIAS, J., concur.
    John Alvarado v. Sarah Nagy (12/21/04 IndCtApp) [Criminal Law & Procedure]
    Friedlander, Judge
    John Alvarado, pro se, appeals the dismissal of the complaint he filed against Sarah Nagy, the attorney who represented him in an unsuccessful attempt to secure a modification of a sentence he was serving. The complaint was dismissed, upon Nagy’s motion, for lack of subject matter jurisdiction. We reverse. * * *

    What sort of case is this, then? We conclude that Alvarado’s perhaps inartfully drafted complaint for damages states a claim for legal malpractice. We make this determination after evaluating the nature of the underlying substantive claim set out in the complaint. In so doing, we look beyond the labels used by Alvarado, and look instead to the substance and central character of the complaint, the rights and interests involved, and the relief demanded. See Morris v. Bank One, Indiana, N.A., 789 N.E.2d 68 (Ind. Ct. App. 2003), trans. denied. Alvarado’s complaint alleges that Nagy signed a contract to represent him in seeking a sentence modification. Nagy did not accomplish that goal and Alvarado charges that he should not have to pay her fee. Obviously, he was dissatisfied with her performance under the contract and seeks return of the contractual fee. Any contract for work includes an implied duty to do the designated work skillfully, carefully, and in a workmanlike manner. INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566 (Ind. Ct. App. 2003), trans. denied. The failure to do so is an actionable tort, as well as a breach of contract. Id. As indicated above, punitive damages are not incompatible with a lawsuit to recover legal fees expended for allegedly flawed representation, and do not remove said lawsuit from the realm of legal malpractice into the real of attorney discipline.

    Finally, we wish to emphasize that our conclusion that the trial court erred in granting Nagy’s motion to dismiss should not be interpreted as a comment upon the merits of Alvarado’s lawsuit. Indeed, the basis for Alvarado’s claim of substandard performance is threadbare at best. We hold only that the matter to be decided therein lies squarely within the jurisdiction of the Madison Circuit Court. Judgment reversed.
    MATHIAS, J., and DARDEN, J., concur.

    In Re the Paternity of J.C. (12/21/04 IndCtApp) [Family Law]
    Riley, Judge
    Appellant, Carson K. Carlisle Libbert (Mother), appeals the trial court’s Paternity Entry ordering the surname of the parties’ nonmarital child to be changed to that of Appellee, Michael L. VanWinkle (Father). We reverse and remand. * * *

    Based on the foregoing, we reverse the trial court’s order changing the child’s surname and remand with instructions to the trial court to determine whether the name change is in the best interest of the child. Reversed and remanded.
    CRONE, J., and VAIDIK, J., concur.

    Kemper Insurance Companies v. Worker's Compensation Board (12/21/04 IndCtApp) [Worker's Compensation]
    Crone, Judge
    Appellant American Motorists Insurance Company, a member of the Kemper Insurance Companies (“Kemper”), appeals the order of the Worker’s Compensation Board (“the Board”) that Kemper is liable under its $3,000,000 surety bond (“the Bond”) for all the worker’s compensation liabilities of Bethlehem Steel Corporation (“Bethlehem”) arising from personal injury dates that occurred from August 1, 1979, to April 30, 2003. We affirm.
    VAIDIK, J., concurs.
    BAKER, J., dissents with opinion.
    * * * I am mindful of the clause providing that the Bond “shall be continuous in form and shall remain in full force and effect unless terminated in the manner hereinafter provided.” Appellant’s App. p. 121. Rather than requiring Kemper to cancel the contract to terminate it, however, the Bond provides two alternate methods of termination: “[t]his Bond shall be effective until September 1, 2001 or until cancelled.” Appellant’s App. p. 121-22 (emphasis added). Thus, the Bond remained in full force and effect unless terminated by date or by Kemper’s cancellation.
    Based on what I believe to be the most sensible interpretation of the Bond language, Kemper should be liable for all worker’s compensation payments that were due during the effective period of the Bond. Although the effective period of the Bond was extended to September 1, 2002, there is no evidence that Bethlehem failed to make any worker’s compensation payments during that time period. Therefore, I would reverse the Board.
    Dwight D. Little v. State of Indiana (12/21/04 IndCtApp) [Criminal Law & Procedure]
    Riley, Judge
    Little raises three issues on appeal, which we consolidate and restate as the following issue: whether Little received ineffective assistance of trial and appellate counsel. * * *

    Based on the foregoing, we find that Little has failed to meet his burden of showing that the evidence is without conflict and leads unmistakably to a conclusion opposite that reached by the post-conviction court. Accordingly, we affirm the post-conviction court’s denial of Little’s Amended Petition for Post-Conviction Relief. Affirmed.
    CRONE, J., and VAIDIK, J., concur.

    One Dupont Centre, LLC, et al v. Dupont Auburn, LLC (12/21/04 IndCtApp) [Real Property]
    Vaidik, Judge
    Dr. Ronald Cohen appeals the trial court’s denial of his complaint for a permanent injunction arising from a dispute with a neighboring landowner. Cohen purchased land adjacent to a pond to construct a professional building overlooking that pond. The seller explained that the adjacent land would be a common area perpetually. Several years later, the adjacent land was sold, and while the pond was retained, an office building was constructed on the land. Because we find no irrevocable license and that no restrictive covenants barred the development of the land, we affirm. * * *
    RILEY, J., and CRONE, J., concur.

    Posted by Marcia Oddi on Tuesday, December 21, 2004
    Posted to Ind. App.Ct. Decisions

    Law - Kentucky: Requests for records can't be ignored

    An interesting story in the Louisville Courier-Journal today about requests made pursuant to the Kentucky Open Records Law. It begins:

    FRANKFORT, Ky. - Public agencies cannot simply claim records do not exist and they must make a realistic effort to search for them in response to requests under the Kentucky Open Records Law, the attorney general's office said in an opinion released Monday.

    Agencies cannot require those requests be made on specific forms. So long as requests include the legible name, a signature and a description of the records, they must be honored, the opinion said.

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

    Environment - Stories today

    "Harrison farmland task force urges steps: Officials delay vote after getting report" is the headline to this story today in the Louisville Courier-Journal. Some quotes:

    Representatives of an appointed task force asked the Harrison County commissioners last night to let them continue their work in evaluating ways the county could preserve fast-disappearing forests and farmland.

    The group, formed last summer by the commissioners, submitted a report in which it recommended that county leaders eventually create a permanent board of directors with an operating budget to oversee land-conservation efforts.

    The group also recommended that the commissioners develop procedures to require all deeds and surveys leading to the creation of new parcels first be approved and processed through the county Plan Commission office. * * *

    The Farm, Forest and Open Space Task Force includes 17 residents and at least six other ex-officio members who were appointed last year to address concerns over the protection of farms and forests.

    Those areas are increasingly under pressure from development spreading from metropolitan Louisville.

    Other factors also contribute to fragmentation of open lands. These include farmers who sell out to help pay for their retirement or to pay large, unexpected bills; low commodity prices; soaring equipment costs; and rising land prices and property taxes, the report said.

    Deaths, divorces and family settlements also cause land to be divided. When such "conversion" of property is uncontrolled and undirected, the group wrote, the scenic, rural environment suffers.

    See also the 12/16/04 ILB entry titled "Property rights versus farmland protection at issue in Porter County rezoning."

    "Smokestack may get historic status" is the headline to this story today in the Munster Times:

    WHITING | For more than 80 years, a 100-foot-tall smokestack adjacent to Whiting High School has punctuated the skyline of the little city by the lake.

    Whiting School Board members decided at Monday's meeting its about time the smokestack be declared a historical landmark, and they will now make the necessary application to the National Register of Historic Places.

    The actual date the smokestack went into service isn't exactly known. Steve Taylor, the school district's director of maintenance, operations and transportation, said the construction was either completed or begun in 1922, according to research compiled at the Whiting Public Library.

    Posted by Marcia Oddi on Tuesday, December 21, 2004
    Posted to Environment

    Indiana decisions - 7th Circuit posts one

    Factory Mutual Insur v. Bobst Group USA Inc (ND Ill.)

    Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
    EASTERBROOK, Circuit Judge. Bobst Group sold a printing
    press to Wm. Wrigley Jr. Company. After one of the
    press’s components exploded, Factory Mutual indemnified
    Wrigley and sued Bobst as its subrogee. Bobst not only
    denied responsibility but also filed a flurry of third-party
    claims for indemnity, plus a counterclaim against Factory
    Mutual. According to Bobst, whatever Factory Mutual receives
    (should it prevail) it must return in whole or in part
    as contribution. Bobst’s theory is that, by acquiring through
    its insurance contract a right to inspect Wrigley’s plant in
    order to reduce safety hazards (and thus the risk to which
    it was exposed), Factory Mutual undertook a duty to help
    Wrigley’s vendors reduce the hazards that their machines
    create. * * *

    The appeal is dismissed for want of jurisdiction.

    Posted by Marcia Oddi on Tuesday, December 21, 2004
    Posted to Ind. (7th Cir.) Decisions

    Indiana Government - Indiana prisons

    The Evansville Courier&Press has an editorial today with this heading:

    The Issue: Department of Correction wants design funds for new prison. Our View: State not yet paying for what it has.
    The editorial begins:
    Indiana's criminal justice system continues to be caught up in a disturbing pass-it-on cycle.

    It starts with the Legislature, which defines crimes and sets penalties. The police arrest the lawmakers, and the courts impose sentences on the guilty. Each of these compartments of the criminal justice system, under competing pressures to be tough on crime and to hold down taxes, is doing its job as it believes it should.

    But it is the final link, the Indiana Department of Correction, which carries out the sentences, that is having the most difficulty doing its job. That's because the DOC must deal with the consequences of the others.

    Currently, according to a recent report by Mike Smith of The Associated Press, the Department of Corrections has 2,000 prison beds that are sitting idle at new but unused facilities in Miami County and New Castle.

    The Legislature, with the state facing an $830 million deficit, has declined to fund the operation of those units. Consequently, Indiana has 656 male offenders at a privately operated prison in Kentucky.

    Smith points out that while the Legislature would not fund those idle beds, it did put more than $20 million in the budget to fund out-of-state placements. With that as the backdrop, the Department of Correction has just asked for nearly $10 million more to design another new 1,800-bed facility for adult male prisoners, Smith wrote. The proposal is based on projections that the adult male prison population in Indiana will rise from 21,916 now to 27,562 by 2011.

    And for the next fiscal year, the DOC is asking for a $52.7 million increase in operating funds, much of which would be used to open the unused units.

    The Courier&Press editorial concludes:
    It seems to us the Indiana Legislature is faced with two dilemmas. One is how to pay for the prisoners and beds Indiana already has. We would note that during the gubernatorial campaign, Gov.-elect Mitch Daniels took issue with Indiana paying to send its prisoners out of state. It is reasonable to expect he will be addressing that issue once in office. As difficult as Indiana's money woes may be today, the second dilemma may be even more challenging. That is, how to deal with that 5,600 increase in the number of adult male prisoners six years from now.

    Simply put, Indiana does not have the places to put them, or the money to build and staff new places to put them, or, at this point, the will to seriously consider alternative sentencing programs. Something has to give.

    The analysis piece by Mike Smith of the AP, referenced in the editorial, is available online here and/or here.

    Posted by Marcia Oddi on Tuesday, December 21, 2004
    Posted to Indiana Government

    Monday, December 20, 2004

    Indiana Courts - Feature on the Indiana Supreme Court

    The Fort Wayne Journal Gazette has a lengthy editorial on its website today titled: "The Indiana Supremes: State's top court places more emphasis on constitutional law." Access it here.

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

    Indiana Decisions - One today from Court of Appeals

    Joyce Stenger v. LLC Corporation d/b/a Saturn of Fishers (12/20/04 IndCtApp) [Attorney Fees; Contracts]
    Kirsch, Judge

    Joyce Stenger appeals from the trial court’s order granting LLC Corp. d/b/a Saturn of Fishers’s (“Saturn”) motion to strike her request for attorney’s fees, raising the following issue for review: whether a plaintiff in a claim brought under the federal Magnuson Moss Warranty Act (“Warranty Act”) may recover attorney’s fees as a prevailing party after judgment is entered pursuant to a settlement agreement that is silent on attorney’s fees. We affirm * * *

    Here, the settlement offer and Stenger’s acceptance are unambiguous and make absolutely no mention of attorney’s fees. Rather, the offer allowed Stenger to “take judgment against” Saturn in the specified amount. This broad language appears to cover any and all claims Stenger raised against Saturn. Moreover, Stenger did not specifically reserve her claim for attorney’s fees. Based on the contract as a whole, we conclude that the parties’ intent was to completely dispose of Stenger’s claims against Saturn. Accordingly, the entry of judgment pursuant to the settlement agreement precludes Stenger’s request for attorney’s fees.

    Stenger, however, argues that to the extent that T.R. 68 conflicts with the fee-shifting provision under the Warranty Act, it is preempted. The preemption doctrine invalidates those state laws that interfere or conflict with federal law. Community Action Program of Evansville v. Veeck, 756 N.E.2d 1079, 1084 (Ind. Ct. App. 2001). The doctrine is based on the supremacy clause of the United States Constitution which provides that the law of the United States is the supreme law of the land, regardless of anything in the constitution or laws of any state to the contrary.

    We see no conflict. We do not hold that as a matter of law consumers who accept offers of settlement are not “prevailing parties” as that phrase is used in the Warranty Act by virtue of the operation of the trial rules. Rather, we hold only that when such offers, acceptances, and resulting judgments are completely silent on the issue of attorney’s fees and appear to otherwise settle all claims between the parties, the judgment cannot be interpreted to leave the issue of attorney’s fees open. Affirmed.
    BAKER, J., and ROBB, J., concur.

    Posted by Marcia Oddi on Monday, December 20, 2004
    Posted to Ind. App.Ct. Decisions

    Indiana Government - Keeping Up

    The Indiana Law Blog recently began categorizing stories about both the upcoming Mitch Daniels administration and about the upcoming General Assembly under a new heading - Indiana Government.

    What that means for you is that if you click on that category name (as listed in the right column under "Categories"), you will be furnished with a list of summaries of all the entries in the Indiana Government category, along with links (the link is the underlinked posting time -- eg 04:46 PM) to the complete entries.

    Or try the category list here - click Indiana Government.

    Posted by Marcia Oddi on Monday, December 20, 2004
    Posted to Indiana Government

    Indiana Decisions - 7th Circuit posts three today

    Utica Mutual Insur v. Vigo Coal Co Inc (SD Ind., David F. Hamilton, Judge)

    Before POSNER, KANNE, and ROVNER, Circuit Judges.
    POSNER, Circuit Judge. This diversity suit for breach of a
    suretyship contract, decided in favor of the defendants after
    a bench trial, presents questions primarily relating to the
    contract-law doctrine of “novation,” but more broadly to
    principles of contract interpretation; all the questions are
    governed by the common law of Indiana. * * *

    And if despite what we have said the Indiana statute did
    render the 1992 agreement unenforceable (more precisely,
    not “interposable” as a defense), equally it rendered the 1991
    agreement unenforceable, because the “creditor,” Utica, did
    not sign it. Yet Utica sued to enforce the 1991 agreement, and
    prevailed against the signers of it. For that matter, it sued to
    enforce the 1992 agreement as well, and though it gained
    nothing because Schulties declared bankruptcy, it could
    have filed a claim in bankruptcy against him based on the
    agreement (we don’t know whether it did or not). The
    doctrine of “mend the hold” forbids a contract party,
    particularly when it is an insurance company, to change its
    position on the meaning of the contract in the middle of
    litigation over it. National Hame & Chain Co. v. Robertson, 161
    N.E. 851, 853 (Ind. App. 1928); Houben v. Telular Corp., 309
    F.3d 1028, 1036 (7th Cir. 2002); United States v. Newell, 239
    F.3d 917, 922 (7th Cir. 2001); Harbor Ins. Co. v. Continental
    Bank Corp
    ., 922 F.2d 357, 362-64 (7th Cir. 1990). Which is
    what Utica has done.

    O'Neal, Brenda v. City of Chicago (ND Ill.)
    Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
    FLAUM, Chief Judge. Plaintiff-appellant Brenda O’Neal,
    a black woman, was a sergeant in the Chicago Police
    Department. In May 2002, she was transferred from her
    position as “administrative sergeant” in the Narcotics Unit
    to the position of “beat sergeant” in one of the districts.
    O’Neal brought suit against the City of Chicago and Jerry
    Robinson, Chief of the Organized Crime Division, alleging
    that this transfer was the result of racial and gender dis-
    crimination in violation of Title VII of the Civil Rights Act
    of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981
    and 1983. The district court granted summary judgment to
    defendants on all claims. O’Neal appeals the grant of summary
    judgment only as to her gender discrimination claim.
    For the reasons stated herein, we affirm.
    Thomas, Frank v. Law Firm Simpson (ND Ill.)

    WILLIAMS, Circuit Judge. Frank Thomas appeals from
    the district court’s dismissal of his suit which alleged that
    General Motors Acceptance Corporation (“GMAC”), the law
    firm Simpson & Cybak (“Simpson”), and their employees
    failed to send him a debt validation notice advising him
    of his rights as a debtor within five days of their initial
    communication with him, as is required by the Fair Debt
    Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-
    1692o. Two principal questions are raised in this appeal:
    whether a creditor’s letter to a debtor and whether a debt
    collector’s initiation of a lawsuit in state court constitute
    “initial communications” within the meaning of the FDCPA.
    In dismissing Thomas’s case for failure to state a claim, the
    district court determined that the creditor’s letter to the
    debtor constituted an “initial communication,” while the
    debt collector’s initiation of the lawsuit did not. We disagree
    with both conclusions. Accordingly, we reverse the district
    court’s decision to dismiss Thomas’s claim against Simpson,
    and we remand for further proceedings. * * *

    EVANS, Circuit Judge, joined by COFFEY, MANION, and
    KANNE, Circuit Judges, dissenting. * * *

    Posted by Marcia Oddi on Monday, December 20, 2004
    Posted to Ind. (7th Cir.) Decisions

    Indiana Government - Development tools top cities' wish list

    Martin DeAgoostino of the South Bend Tribune has an important article today headlined "Development tools top cities' wish list: Mayors leery about automatic abatements." Sme quotes from the lengthy piece:

    Two tax programs for economic development top the wish list of local governments for the 2005 legislative session.

    They are tax abatements and tax increment financing, both nearly 30 years old and both set to expire at the end of next year.

    Other ranking issues for cities include a relaxation of state regulations on water-quality standards and on tax limitations imposed last year by the Indiana General Assembly.

    "TIF and tax abatement are clearly our most important economic development tools," said Matthew C. Greller, executive director of the Indiana Association of Cities and Towns. "Without them, economic development in this state would come to a standstill. So that is definitely issue 1-A for us."

    Renewal seems likely, given the importance that lawmakers and local governments attach to both tools. The legislature has consistently expanded the reach of both programs, to cheers from mayors and county officials.

    But tax abatements could emerge in altered form if Gov.-elect Mitch Daniels has his way. Daniels wants to simplify abatements by making them automatic whenever a company invests in a new plant or equipment. * * *

    Cities also hope to address a vexing environmental issue that is squeezing them between taxpayers and state and federal regulations on water quality standards.

    The standards require cities to eliminate sewage overflows that can endanger public health when people fish, swim or float, a la rafters in South Bend's East Race, in rivers and streams.

    The costs can be enormous; 104 Indiana cities have mechanisms that allow sewage discharges when wet-weather flows exceed treatment-plant capacity. Elkhart has 35 combined sewer overflows, as they're called, and officials there doubt they can meet the standards at any cost.

    Even some environmentalists agree and say they will support a conditional easing of the standards. The conditions include significant progress on long-term control plans that are required by state law, and a showing that additional efforts would involve "substantial, widespread social and economic costs."

    Posted by Marcia Oddi on Monday, December 20, 2004
    Posted to Indiana Government

    Indiana Courts - More on Access to Court Records

    Updating our entry from yesterday titled "Access to court records clarified via court rule changes effective January 1" (scroll down 3 entries) is the Court's new, 52-page "Public Access to Court Records Handbook."

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

    Indiana Law - Help requested in putting together 2005 Indiana Law Blog Wish List

    Last New Year's Eve the Indiana Law Blog published a Wish List for 2004. Last year's list is set out below. As you will see, wishing does not appear to make it so . . .

    I am starting to put together the 2005 Indiana Law Blog Wish List. Do you have suggestions? Send them to me here - (please put ILB Wish List in the subject heading). If you do not want your name used, please let me know.

    Here is the 2004 ILB Wish List entry, still waiting for Santa's/Father Time's magic. Posted on 12/31/03, it began:

    This is New Year's Eve. Here is what the Indiana Law Blog would like to see for Indiana in the New Year. Maybe not all at once, but at least a start.

    1. Women (note the plural) on the Indiana Supreme Court. Current status: Five men, no women.

    2. Copies of briefs for cases before the Indiana Supreme Court made available online. When? At the same time they are filed with the Clerk of the Court.

    3. The Debates of the Indiana Constitutional Convention of 1850, the Convention Journal, and related documents made readily available on CD-ROM or DVD, and priced right for the student. Incredibly, these books are out-of-print -- I had to slowly assemble my collection from dealers all over the country.

    4. I've got more CD/DVD wishes - the House and Senate Journals since Indiana became a State; the Acts of Indiana for the same time-span. Scanned, so that we can see the printed pages. Electronic finding aids would also be nice, but the important thing right now is to capture all this history and make it available before it totally disintegrates.

    5. A booklet containing the Constitution of the State of Indiana, and including all the changes that have been made over time. Also the 1816 Constitution.

    6. The Indiana Historical Bureau puts out an invaluable series titled "Constitution Making in Indiana." Volume I, 1780-1850; Vol. II, 1851-1916; Vol. III, 1916-1930; and Vol. IV, 1930-1960. These volumes are compilations of source materials. As stated in the Preface to Volume III:

    As in the preceding volumes, the field has been limited to documents bearing some sanction of authority, including in this instance, activities of the General Assembly, governors' messages, party platforms, official ballots, court decisions, and opinions of attorney-generals. They have been taken from the printed House and Senate Journals, the Laws, and the Court Reports, supplemented when necessary by original documents, printed bills, or manuscript records from the office of secretary of state.
    What we'd like to see in 2004, of course, is: Volume V, 1961-2000! Plus a plan for the future of this publication , which is such an invaluable historical resource for the Courts, the Indiana General Assembly, and all of us citizens of Indiana.
    Finally, maybe just posting a list and checking it twice isn't enough. If you have practical suggestions for implementing these, or the new 2005 "wishes", please send those along too.

    Posted by Marcia Oddi on Monday, December 20, 2004
    Posted to Indiana Law

    Indiana Decisions - Oral arguments today

    The Indiana Supreme Court has two oral arguments scheduled for today, Monday, Dec. 20. These are the last planned for 2004.

    At 9:00 AM DFS Healthcare (certified question) is scheduled. The official summary:

    Oral argument in this case has been vacated and continued until further notice from the Court. The Court has ordered the parties’ counsel to appear to show cause why they should not be held in contempt for failure to comply with this Court’s scheduling orders. Attorneys for Appellant; D. Andrew Potinga of Grand Rapids, MI and Christopher Nichols of Peoria, IL. Attorney for Appellee; Susan Davis of E. Grand Rapids, MI.
    At 9:45 AM SMDfund, Inc., et al v. Fort Wayne-Allen County Airport Auth., et al is scheduled. The official summary:
    Appellants are a citizen’s group and individual taxpayers challenging the legislation that established the Fort Wayne-Allen County Airport Authority and the latter’s authority manage and control airports in Allen County. The Allen Circuit Court granted the Appellees’ motions for summary judgment. Pursuant to Indiana Appellate Rule 56(A), the Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal. Attorneys for SMDfund; Susan Hanson, Edward Benchik and Charles Shedlak, all of South Bend, IN. Attorneys for Fort Wayne-Allen County Airport Auth.; Kathryn Brogan, F. L. Logan, and Christopher Forrest, all of Fort Wayne, IN. Attorneys for City of Fort Wayne; Timothy Manges and Carol Smith of Fort Wayne, IN. Attorney for Allen County; George Fishering, Fort Wayne, IN.
    A Dec. 1, 2004 IBL entry, titled "Case on Fort Wayne Airport Board Could Affect Hundreds of Laws," is available here. Earlier ILB reports on the Supreme Court's grant of emergency transfer in this important case, plus analysis and a link to the initial, 6/28/04 decision of the Allen Circuit Court, are available here: 9/22/04 and 9/21/04.

    The Indiana Court of Appeals also has an oral argument set for today, plus one on Dec. 29th.

    At 1:00 PM today, Outback Steakhouse v David Markley, et al is scheduled. The official summary:

    The Markley's were involved in a traffic accident and sued Outback for serving alcohol to an already intoxicated patron who caused the accident. The trial court found for the Markley's. On appeal, Outback asserts information was not disclosed by Markley's counsel at trial and that the trial judge did not instruct the jury as to the potential fault of a bar that was not a party to the Markley's law suit.
    At 1:30 PM on Wednesday, Dec. 29th, a stay hearing in James Lowery v. Housing Authority, City of Terre Haute is scheduled.

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

    Sunday, December 19, 2004

    Indiana Courts - Access to court records clarified via court rule changes effective January 1

    "Access to court records" was the heading to this ILB entry from Nov. 17, 2003 which reported, among other things, on a proposed new access rule for court records, "needed to respond to the growing use of electronic record keeping in the state's court system."

    A Feb. 27, 2003 ILB entry reported "Indiana's proposed amendment to Administrative Rule 9 may be accessed here."

    A March 1, 2003 ILB entry quotes from an Indianapolis Star story on the impact of the new rule. For example:

    In an age when information is available at the click of a mouse, the Indiana Supreme Court is clamping down on court records that contain personal information regarding crime victims and witnesses.

    In a rule adopted last week, the court is attempting to balance an individual's right to privacy with the public's right to know what happens in court. * * *

    "It's been open for the public to see if they come down to the courthouse and get it or have it faxed to them," VanValer Shilts said. "But it's a completely different thing when the information is available on the Internet."

    The new rule will take effect next Jan. 1 [2005], just before Marion County's criminal court records are expected to go online. Marion County is launching an electronic record-keeping system that will one day be the standard for all courts statewide.

    The Supreme Court rule change means information now available in court records -- such as the birth dates of crime victims -- will be off-limits next year. * * *

    The rule will allow members of the public to access the confidential records if they can prove an "extraordinary circumstance" or that the opening of the records serves the public interest. Anyone seeking access must notify the individuals whose information they are trying to get. The victims or witnesses will have 20 days to respond.

    The March 1 ILB entry concludes:
    Access the revised Rule 9 directly here. Recall that the amendment takes effect January 1, 2005. Of particular interest is (A)(5): "This rule applies to all court records; however clerks and courts need not redact or restrict information that was otherwise public in case records and administrative records created before January 1, 2005."
    Today the Fort Wayne Journal Gazette has a story on Rule 9. A quote:
    [B]eginning Jan. 1, the identifying numbers on new cases will be confidential under Indiana statute, and public documents cannot include them. Documents filed before Jan. 1 will not be subject to the law, so court officials will not go back through decades of paperwork to remove Social Security numbers.

    “Within court documents, it’s usually been used because the numbers are unique, as a way to make sure records matched up, in addition to all the other information,” said Ronnie Miller, director of trial court management for the Indiana Division of State Court Administration.

    But with the proliferation of the Internet, he said, people are concerned about privacy.

    “There’s a lot more potential for abuse of that information and intrusion into people’s lives,” he said.

    Which is why the Indiana Supreme Court amended Administrative Rule 9. The amendment consolidates the state’s confidentiality rules and declares that all Social Security numbers, as well as addresses and birthdates of victims, will be confidential.

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

    Environment - Five years after kill, White River still recovering

    This AP story, by Rick Callahan, has appeared in several state papers this weekend, in varying lengths. The Louisville Courier Journal appears to have published the complete story. Some quotes:

    NOBLESVILLE, Ind. — Five years after toxic discharges killed millions of fish along a 50-mile stretch of the White River, state officials say the waterway is on the rebound thanks to millions of dollars spent on restoration efforts.

    Annual fish surveys show that the passage of time also is reviving the river, which has had at least two strong spawning seasons since the first batches of 1million young fish were released in its waters in 2000.

    More than $4million has been spent to restore the river, with much of that used to create riverside buffer zones of plants and trees.

    Still, a complete recovery from the massive fish kill is years away.

    Posted by Marcia Oddi on Sunday, December 19, 2004
    Posted to Environment

    Indiana Decisions - $53M Lake, U.S Steel tax deal a go

    "$53M Lake, U.S Steel tax deal a go: State high court refuses to hear appeal" is the headline to this story today in the Munster Times. Some quotes:

    The Indiana Supreme Court cleared the last hurdle blocking Lake County and U.S. Steel Corp.'s $53 million tax settlement Thursday, voting 3-2 against hearing an appeal that sought to stop the deal.

    Elated county officials received word of the court's action Saturday morning, vowing to work quickly to translate the settlement dollars into property tax relief, particularly for hard-hit Calumet Township.

    "I am so happy, this has just made my day," county Assessor Paul G. Karras said. "We fought the good battle. It took longer than I expected, but it's all been worthwhile."

    Gary Mayor Scott King said, "It's great news. With residents facing two years of tax bills in calendar year 2005, the timing couldn't be better." * * *

    Officials from U.S. Steel and Lake County signed the agreement in March, but Calumet Township Assessor Booker Blumenberg Jr. refused to agree to the deal.

    It was Blumenberg's appeal of a July Indiana Tax Court ruling that the Supreme Court last week refused to hear.

    Tax Judge Thomas Fisher ruled the settlement could go forward without Blumenberg's signature, because the township's authority over tax matters was trumped by Karras and the county's Property Tax Assessment Board of Appeals.

    In their refusal to hear Blumenberg's appeal, the supreme court justices essentially backed Fisher's opinion.

    Here is the Indiana Supreme Court's transfer list dated 12/17/04. The last item on the first page is "Booker Blumenberg, Jr. as Calumet Twp. Assessor v. U.S. Steel Corp. f/k/a United States Steel, LLC, et al." It is listed as transfer denied, 12/16/04.

    The Gary Post Tribune also has a story today, including the following quote:

    The settlement, which resolves years of property tax appeals from Gary’s biggest taxpayer, originally was announced in March. It includes:

  • $44 million from U.S. Steel, to be paid to Lake County, most of which will be distributed to Gary’s tax units.

  • $10 million from the state’s property tax replacement fund.

  • The steel company’s agreement to invest $150 million in Gary Works in the next four years.

  • Turning over 200 acres of U.S. Steel’s land to the city of Gary.

    [Calumet Township Assessor Booker Blumenberg Jr. ] opposed the agreement, contending that the county gave up too soon on getting as much as $120 million from U.S. Steel. Blumenberg could not be reached for comment on Saturday.

  • Posted by Marcia Oddi on Sunday, December 19, 2004
    Posted to Ind. Sup.Ct. Decisions

    Indiana Courts - Harrison courthouse dedicated

    The Louisville Courier Journal today reports on the dedication of the renovated Harrison County Courthouse in Corydon. Some quotes:

    The wood benches of the Harrison County Circuit Court were packed as county leaders showed off the newly renovated courthouse that was dedicated yesterday morning.

    The $4.5million project updated the 1928 building with modern infrastructure while restoring some of the original features that had been hidden by previous updates. * * *

    Offices for the auditor, circuit court clerk, treasurer, recorder, assessors, highway department and surveyor are housed in the building, in addition to the commissioners' room and the courtroom.

    The courtroom is "the crowning jewel" of the renovation according to Joseph Mrak, senior vice president of RQAW, the Indianapolis firm that did the architectural work and managed the project.

    The room's newly varnished oak trim shows off the fact that "every square inch of wood in the whole building was stripped and refinished."

    Five deeply curved vaults that had been covered by flat acoustic tile run crossways to form the ceiling. "Nobody really knew that this was up there," said Mrak. * * *

    The $4.5million renovation project, begun in mid-2002, is not quite finished. Work remains on the jury rooms and judge's office, said Eckart. Across the street renovation of the old jail, also part of the project, is expected to be completed perhaps by early spring.

    The old jail will house county records and a few offices. The county annex building on Mulberry Street, which now holds those offices, eventually will be sold, said Eckart.

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

    Indiana Government - Details on Daniels' Transition Team

    The Indianapolis Star, at the end of its weekly "Behind Closed Doors" column, published a list today of names it describes as "who's leading [Gov.-elect Daniels'] transition efforts." The list consists simply of the individual's name and a state agency name - apparently the agency for which the individual is responsible.

    [Note: To clarify, these are NOT the names of the new directors, commissioners, etc.; rather, these are the people who, reportedly, are leading the Daniels' transition team efforts to find the best people to fill the high level positions at the various agencies, commisions, etc.]

    The Indiana Law Blog has reviewed the list and attempted to add a little more information. Great care has been taken to make certain no one is misidentified; let me know if you see information that is inaccurate, or can add missing information.

    • Chris Ruhl [Baker & Daniels] - State Budget Agency
    • Scott Tittle [Baker & Daniels] - the Family and Social Services Administration's divisions in charge of child welfare and services to the aging, disabled and mentally ill
    • Anne Murphy [??? Chief legal counsel, Illinois Dept. Public Health ???] - FSSA's Office of Medicaid Policy and Planning
    • Dan Novreske [Longtime state transportation and budget expert, currently advisor to Indiana Senate] - Indiana Department of Transportation
    • Chad Frahm [Indiana Farm Bureau attorney] - Indiana Department of Environmental Management
    • Ryan Kitchell [Eli Lilly; formerly Indiana Fiscal Policy Institute] - Indiana Department of Commerce and Teachers' Retirement Fund
    • Julie von Arx [Criminal justice expert] - Indiana Department of Correction
    • David Certo [Member, Indianapolis Citizens Police Complaints Board] - Bureau of Motor Vehicles
    • Matt Steward [Wayne Twp. Fire Dept.] - Indiana State Police
    • Michael Huber [???] - Department of Local Government Finance
    • Anne Hazlett [Newly appointed chief of staff for Lt. Gov. Skillman, formerly Daniels' staff] - agriculture
    • Ron Silver [??? I don't think it is "actor Ron Silver" ???] - Department of Workforce Development
    • David Wu [???] - Indiana Department of Administration
    • Chris Walker [???] - Public Employees' Retirement Fund
    • Jim Atterholt [In 2002 - "Democrat David Orentlicher won the Indiana House seat over Republican incumbent Jim Atterholt"] - Indiana Department of Insurance
    • Todd Richardson [Most likely C. Todd Richardson, listed at Hall Render on p. 30 of this directory] - Indiana Department of Labor [Note - updated 12/21/04]
    • Betsy Burdick [Chief Deputy Treasurer, Office of the State Treasurer] - Indiana Department of Revenue
    • John Williams [??? Professor Emeritus of Medicine, IU School of Medicine ???] - Indiana State Department of Health
    • Matt Klein [Kroger, Gardis & Regas] - Indiana Department of Natural Resources
    • Bret Swanson [???] - Indiana Utility Regulatory Commission
    • Brad Kirkendall [???] - State Personnel Department
    • Jake Moelk [Information Technology Oversight Commission] - Intelenet Commission
    • Sally Steward [???] - State Board of Accounts
    • Nate Feltman [Ice Miller] - Department of Financial Institutions
    • Ron Stiver [Eli Lilly] - Commission for Higher Education
    • Bret Merritt [???] - information technology
    • Chris Cotterill [Barnes & Thornburg] - Hoosier Lottery Commission;
    • Ben Ledo ["wheel man for Mitch Daniels' statewide RV crawl"] - Indiana Gaming Commission
    • Todd Young [???] - veterans affairs
    • Jon Vanator [Daniels campaign staff] - Indiana National Guard
    The same "Behind Closed Doors" column today leads with an item headlined "Daniels' early choices reflect lack of diversity."

    Posted by Marcia Oddi on Sunday, December 19, 2004
    Posted to Indiana Government

    Saturday, December 18, 2004

    Indiana Decisions - Impact of bingo rulemaking decision reflected in annual Dept. of Revenue report

    "Scuttled changes to bingo law yield failure and success" is the headline to a story today by Steve Walsh today in the Gary Post-Tribune. [Remember that the Trib does not archive its stories.] Some quotes from the story:

    The scuttled rules for Indiana bingo halls may have helped the bottom line for the charities they support.

    The state Department of Revenue’s annual charity gaming report suggests the now-defunct rules about distributing the profits may have nudged bingo halls to turn more profit over to their charities — usually themselves in some form — over the previous year.

    The 2004 Indiana Department of Revenue Charity Gaming Report showed that charities actually earned more money last year. That came despite a decline in the amount of money bingo brought in this year and a drop in the number of licenses.

    Ironically, the state’s charities fought the rules that made them more profitable. Bingo halls successfully stopped the department from adopting rules that would have required not-for-profit organizations to donate a set percentage of their income to charity.

    “I think the data show the new rules may have been pushing the charities to turn more of a profit, which is good. After all, this is supposed to be a fund-raiser for the charity,” said Larry McKee, director of revenue for the Indiana Department of Revenue.

    In October, a Marion County judge threw out the last of the rules the state Department of Revenue adopted in 2003 to require organizations, running the games, to donate a percentage of their profits to charity. * * *

    In 2003, the Indiana Department of Revenue adopted rules to require a percentage of the gross revenue from charity gaming licenses to go to a charity. A bingo license with an annual gross revenue of at least $500,000 would have to donate at least 10 percent of the money to charity.

    “It was just unfair. It defied all business sense and all rules of accounting,” said Marilyn Moores, the Indianapolis attorney representing bingo operators. A group of operators, including American Legion Post 168 in Hammond, filed suit. In August, Marion Superior Court Judge David J. Dreyer stopped the department from enforcing the rule. In an Oct. 6 ruling, Dreyer effectively swept away the last of the new rules, according to the Department of Revenue.

    The agency set the bar too high by not allowing charities to factor out their operating expenses, Moores said. They didn’t take into account the cost of maintaining the aging halls run by fraternal organizations, such as the Eagles, Moose and VFW, she said.

    At the Knights of Columbus in Hammond, bingo is about the only way the organization can afford to maintain its hall, according to Dan Lelito, who manages the weekly bingo games. “Your expenses just keep going up and up. Other KC halls have shut down because they can’t make expenses,” he said.

    The Hammond Knights of Columbus took in $998,727 in 2004 from its bingo license and turned a 15 percent profit — higher than the state average of 12.1 percent in 2004. “But we have a $2,400 heating bill and they won’t let you take off $2,400 in expenses,” Lelito said. Bingo is the only way to keep the building open. At the same time, competition from the casino boats continues to eat into the market, Lelito said. * * *

    During negotiations with the state, Moores said she suggested as much as 15 percent of the net profit go to charity. The 15 percent would be after expenses, she said. At the moment, factor out the expenses and some bingo licenses are barely turning a profit. The Knights of Columbus in Valparaiso took in $88,548 but showed only a 5 percent profit in 2004. The Loyal Order of Moose Lodge in Hammond took in $325,345 from its bingo license in 2004, but managed only a 3 percent profit. * * *

    With the court ruling, both sides believe the General Assembly will have to settle the issue, when lawmakers return to Indianapolis in January.

    For background on the trial court decision to throw out the bingo rules, see this 8/11/04 ILB entry [includes a link to the trial court order -- Veterans of Foreign Wars v. Indiana Dept. of Revenue (8/9/04 Marion Superior Ct 10)], and this 9/15/04 ILB entry.

    The latter entry reported that Attorney General Carter intended to appeal the decision. A check of the Indiana Court of Appeals docket shows that a notice of appeal was filed 9/8/04. A 12/1/04 doccket entry indicates "notice of completion of transcript." The case number is 49 A 02 - 0410 - CV - 00863 - Indiana Department of Revenue v. Veterans of Foreign Wars Post 9395.

    Finally, the Indiana Department of Revenue's 2004 Charity Gaming Annual Report is available here.

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

    Environment - Many Counties Failing Fine-Particle Air Rules

    "Many Counties Failing Fine-Particle Air Rules" is the headline to this story today in the NY Times. Some quotes:

    About a third of all Americans live in counties that do not meet seven-year-old standards for microscopic particles of pollution that cause thousands of premature deaths a year, the Environmental Protection Agency said Friday.

    The 20 states affected ... now have three years to develop plans to bring their problem counties into compliance by 2010, or face the loss of federal highway money.

    This is the first time since the environmental agency set tough new health-based standards in 1997 that it has declared which counties around the country are out of compliance for the fine particles produced by a variety of sources, including car exhausts, wood-burning stoves and power plants.

    These sooty chemical particles are known as PM2.5, shorthand for particulate matter measuring no more than 2.5 microns, a tiny fraction of the width of a human hair, so small they can lodge deep in the lungs if inhaled. * * *

    [T]he Bush administration has proposed two measures aimed at reducing emissions of particulate matter and other regulated air pollutants.

    One is the Clean Air Interstate Rule, a regulation that would lower emissions from coal-fired power plants, helping to control pollution in 29 Eastern states and the District of Columbia, a region to which many emissions drift from Midwestern plants. [Link to EPA Interstate Air Quality Rule site.]

    The other is the Clear Skies Initiative, a bill languishing in Congress that many environmental groups say would undercut the Clean Air Act. [Link to EPA Clear Skies Initiative site.]

    Mr. Leavitt had promised to sign the Interstate Rule by the end of the year, but the White House last week pushed final adoption back to March.

    Most environmental groups view the Interstate Rule as a useful tool that would at least help one state to force another to restrain emissions that are carried by the winds across state lines. Still, they view the E.P.A.'s efforts as insufficient.

    "It's one thing to identify areas with dirty air," said Frank O'Donnell, president of a new environmental watchdog, Clean Air Watch. "It's more important to clean up the pollution causing the dirty air. That's where they are dropping the ball."

    Mr. Leavitt said the agency had taken a number of steps to reduce air pollution, including regulations issued in April to control ozone, which causes smog and damages the lungs.

    Today's declaration sets in motion complex requirements for the 20 states that have areas in noncompliance with the fine-particle standards. By law, the states must now develop programs, which require federal approval, that will address the sources of the PM2.5 pollution so that compliance is achieved by 2010.

    While coal-fired power plants account for much of the problem in the East, vehicle exhaust is the major offender in parts of California. That means an Eastern state's solution might include new technologies for power plant smokestacks, while California could propose anything from electrical outlets at truck stops, so that drivers would have incentive to turn off their engines overnight, to new initiatives for mass transit, said Steve Johnson, deputy E.P.A. administrator. Most states, though, would probably seek to control emissions from all types of sources.

    Here is a current EPA map of Attainment and Nonattainment Areas in the U.S. for the PM 2.5 Standard. Here is the EPA website that "provides information about the Clean Air Fine Particle Rule, an EPA action designating areas whose air quality does not meet the health-based standards for fine particle pollution."

    The site states that: "On December 17, 2004, EPA took final action to designate attainment and nonattainment areas under the more protective national air quality standards for fine particles" and then provides links to detailed information. With respect to Indiana (and other states in Region 5), here is the link to the Table identifying "all counties EPA has designated as nonattainment. In some cases EPA designated partial counties. These are identified by a (P)."

    Finally, here are stories from Indiana papers:

  • "EPA particulate rules affect 19 Ind. counties," a story from the Louisville Courier-Journal. Quotes:
    Both Indiana and Kentucky tried to persuade the EPA to put far fewer counties on the list of those not complying.

    Kentucky was able to whittle four counties off EPA's list, which state Division for Air Quality Director John Lyons considered a success.

    "So now the real work begins in terms of trying to determine what the plan is going to be to get these areas back into attainment," he said.

    Indiana was unable to get any of its 19 targeted counties off the list, but the EPA agreed in the case of five counties to designate only portions of the counties.

    "We are disappointed the EPA has made these designations, but we are committed to meeting these standards as quickly as we can," said Janet McCabe, assistant commissioner for air quality in the Indiana Department of Environmental Management.

    The EPA has given states the chance to appeal early next year, if air monitoring from 2004 shows that they could bring some counties into compliance.

  • "EPA critical of state's air quality: Marion County among many areas in violation," a story from the Indianapolis Star. Some quotes:
    On Friday, the EPA said air in 14 counties and portions of five others is polluted with unacceptable levels of particles from automobiles, industries and even backyard burning.

    State environmental officials and Kernan had recommended that six counties -- Clark, Dubois, Elkhart, Lake, Marion and Vanderburgh -- be listed in violation, based on air-monitoring data. Also, most of the counties will comply with the standard once proposed EPA air-quality rules for coal-fired power plants and diesel engines take effect.

    "It doesn't make sense to us," said Janet McCabe, assistant commissioner of the state agency's office of air quality.

    EPA officials have acknowledged that federal rules will help many counties but said they could not base their decision on rules that are not yet implemented. The agency appeared to have compromised, though.

    In June, the EPA said 18 counties and one township within a 19th county probably would be designated in violation of the standard. Now, the number of counties is reduced to 14, with five counties having only one township each in violation.

    State and industry officials have warned that the particle designations could discourage industrial development, because businesses wanting to locate in a violating county will have to find a way to offset any pollution they would create. * * *

    Environmentalists were not satisfied with the designations, either, saying they all should have been entire counties instead of single townships in Jefferson, Dearborn, Spencer, Gibson and Pike counties.

    "It seems to me just a recipe for mass confusion," said John Blair, president of the Evansville-based environmental group Valley Watch. "It appears to me to be a politically driven response."

    Still, he said, Friday's announcement means counties finally can start planning how they'll reduce particles.

  • "Region fails air standards: States have until 2010 to comply with federal guidelines," a story in the Munster Times. A quote:
    Indiana and Illinois are among 20 states that don't meet the new national air quality standard set by the agency.

    Lake and Porter counties are among 14 in Indiana that failed the test because of microscopic fine particles, like soot. In addition, parts of five townships failed.

    Illinois' Cook County also failed the test, along with nine other counties in the state and parts of three others.

    Posted by Marcia Oddi on Saturday, December 18, 2004
    Posted to Environment

    Friday, December 17, 2004

    Indiana Courts - The Indiana Court Interpreter Program

    The Johnson County Daily Journal today has an interesting article headlined "State certification offered for interpreting in court." Some quotes:

    Being a successful court interpreter requires more than a few foreign-language classes or casual conversations on the street.

    Court interpreters must also learn complex legal terms and have a working knowledge of car equipment, mortgages, body parts or whatever else might come up in court.

    Knowing the difference between a burrito in Mexico and one in Puerto Rico might also be required.

    “You never know what kind of case you’re going to get,” said Roselia Skeem, a full-time county court employee who has served as an interpreter. “A person has to keep on their toes about everything law-related and constantly be working on vocabulary.”

    Court interpreters can find themselves explaining forms, giving directions or translating words spoken by attorneys, judges and court administrators almost simultaneously.

    They do not need to be certified to interpret. However, Indiana has created a four-month certification program to establish a database of court interpreters.

    Five people have been certified so far between both tests conducted annually in March, according to Jana Matthews, staff attorney for the supreme court administration.

    “Our passage rate isn’t high, but we want to have the best,” Matthews said. “They need to have a good grasp on what they’ll be doing.”

    While the amount of non-English-speaking defendants has been steadily rising in the past decade, the state has lagged behind on developing a court interpreter system.

    To get certified, applicants must register and take seminars on such topics as legal terminology and basic interpretation before taking a final exam in March.

    Indiana’s Supreme Court recommended the program be formed after a commission reported in mid-2001 that the state was not prepared to deal with people who don’t speak English or have limited understanding of the language. * * *

    More information about the program can be found by starting here on the Indiana Courts website. Links to useful online resources, including study guides, can be found via this link.

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

    Indiana Decisions - Court of Appeals issues one today

    Blythe A. Whinery, et al v. Sue Roberson, et al (12/17/04 IndCtApp) [Employment Law]
    Mathias, Judge

    Blythe Whinery, on behalf of herself and a class of similarly situated plaintiffs, (“the Employees”) filed a complaint against Sue Roberson (hereinafter “the State”), in her official capacity as Director of the State Personnel Department (“the SPD”), in Marion Superior Court. The trial court entered judgment against the Employees’ complaint by way of summary judgment, and the Employees appeal, presenting the following restated issues for review: [1] Whether the State properly designated evidence to the trial court; [2] Whether the SPD’s conduct complied with the Employees’ contractual rights; [3] Whether the SPD’s conduct complied with the Employees’ statutory rights; [4] Whether the SPD implemented a classification system as required by Public Law 70-1996, section 3 (“P.L. 70-1996”); and, [5] Whether the Employees have a remedy pursuant to 42 U.S.C. section 1983 or the Indiana Constitution. We affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion.

    P.L. 70-1996 states:

    The director of the [SPD] established by IC 4-15-1.8-2 shall do the following:

    Make a survey of state government classification systems and salary schedules for professional employees in the types of natural resources professions that are employed by the department of natural resources for the following states: Michigan, Ohio, Illinois, Kentucky, Wisconsin, Minnesota, Missouri, Kansas and Nebraska.

    Prepare a classification system and salary schedule for the professional employees of the department of natural resources who are employed in natural resource professions that: reflect the results of the survey conducted under subdivision (1); and provide for classifications and salary adjustments that are based on education and experience.

    Implement the classification system and salary schedule developed under subdivision (2) in the 1997-1998 state fiscal year.

    * * *

    V. Classification System. The Employees claim the SPD failed to implement a classification system as required by P.L. 70-1996. The Employees argue,

    Simply put, merely bumping all employees up one skill level does not qualify as preparing a classification system and salary schedule that reflected the results of [P.L. 70-1996]. [P.L. 70-1996] contemplated preparation of a document reflecting the minimum and maximum bi-weekly and annual salaries for state jobs by job category and skill level; what Defendants provided was a simple increase in pay for each employee. As a matter of law this fails to satisfy the dictates of [P.L. 70-1996].
    Br. of Appellant at 45-46.
    It is undisputed that P.L. 70-1996 requires the SPD to implement a classification system that “provide[s] for classifications and salary adjustments that are based on education and experience.” P.L. 70-1996(a)(2)(B). Sue Roberson indicated that the classification system required by the statute means “a document reflecting the minimum and maximum bi-weekly and annual salaries for state jobs by job category and skill level.” Appellants’ App. p. 329.

    No such document was ever produced by the SPD. Accordingly, we direct the SPD to produce “a document reflecting the minimum and maximum bi-weekly and annual salaries for state jobs by job category and skill level” so as to comply with P.L. 70-1996.

    VI. Remedies. The Employees claim they have a remedy under 42 U.S.C. section 1983 and Article One, Section Twenty-One of the Indiana Constitution. * * *

    The Employees state: Under [42 U.S.C. § 1983], persons who have been deprived of a property right created by state law under color of law and without due process are entitled to bring a claim to remedy that deprivation.

    The Employees’ two-paragraph argument that follows fails to provide citation support for this statement, enunciate the requirements for a successful 42 U.S.C. section 1983 action, or demonstrate they have a property right recognized under 42 U.S.C. section 1983. The Employees’ failures places this court in the position of advocate in developing these arguments. See footnote Accordingly, the Employees’ claim under 42 U.S.C. section 1983 is waived.

    The entirety of the Employees’ argument pursuant to the Indiana Constitution states, Alternatively, the Class is entitled to prospective injunctive relief under . . . the Indiana Constitution for the deprivation of property without due process. See State v. Hayes, 378 N.E.2d 924, 931 (Ind. Ct. App. 1978) (Art. I, § 21 of the Indiana Constitution provides cause of action for deprivation of property).

    The Employees fail to articulate what constitutes a property deprivation, among other prerequisites, pursuant to the Indiana Constitution and leave the task of developing their argument to this court. In criminal cases—where a defendant’s liberty is at stake—similar attempts to invoke the Indiana Constitution have regularly been held to constitute waiver. See Jackson v. State, 735 N.E.2d 1146, 1151 n.1 (Ind. 2000). Accordingly, the Employees’ claim under the Indiana Constitution is waived.

    Conclusion. We affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion.
    DARDEN, J., and FRIEDLANDER, J., concur.

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to Ind. App.Ct. Decisions

    Law - Budget Is Job of Governor, Judges Rule

    Maybe you have to be a political junkie to enjoy this, but when I saw this headline in the New York Times this morning, my eyes lite up: "Budget Is Job of Governor, Judges Rule" True, the New York system is different from Indiana's in a number of respects, but the differences are fascinating. Some quotes from the story:

    New York State's highest court ruled on Thursday that the power to make budgets rests decisively with the governor, and that the Legislature's main budget-making power rests in its ability to stall the passage of budgets it does not like in an effort to win concessions through negotiations.

    The delay-and-negotiate tactic is one that has greatly contributed to the state's record-setting 20 straight years of late budgets.

    The ruling, which affirmed the findings of lower courts in two lawsuits stemming from the state's 1998 and 2001 budgets, was a strong victory for Gov. George E. Pataki that has far-reaching implications for the balance of power in state government.

    The Court of Appeals ruled that the executive budget process that was put in place in 1927, when Alfred E. Smith was governor, gives governors the sole right to propose budgets. The only power the Legislature holds, the court found, is its right to delete or reduce expenditures on items in the governor's budget, to add new items of spending on separate lines that are then subject to the governor's line-item veto, or to refuse to pass the budget.

    The court ruled that the Legislature could not simply take the governor's proposals, strike them and replace them with its own proposals for the same programs on separate lines - as the Legislature has essentially done in the state's last two adopted budgets. * * *

    The court also granted the governor broad latitude to set policy in his budget bills. Governor Pataki, lawmakers say, has gone much further than his predecessors in trying to pass new initiatives through his budget bills; the Legislature says that this infringes on its authority. In budget bills in 2001, for instance, Mr. Pataki tried to change the school financing formula and create a new entity to run the state's library and museum in Albany.

    Judge Smith said that those decisions were well within the governor's power, but declined to provide guidance on how much legislating a governor can do through budget bills. Some lawmakers suggested that the leeway granted in the decision could hypothetically lead to extreme changes in policy: theoretically, they said, a future governor could keep hospitals supported by state money from performing abortions. * * *

    [Chief Judge Judith S. Kaye], in her dissent, concluded that "the governor has overstepped the line that separates his budget-making responsibility from the Legislature's lawmaking responsibility, setting an unacceptable model for the future."

    And here is a link to the New York opinion, Pataki v. New York State Assembly (12/16/04).

    [For more about Indiana budgeting, see my 2003 paper, "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," particularly pp. 17-22, dealing with the State Budget Agency and the Budget Committee. The paper is available here].

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to General Law Related

    Environmental - Federal agents search Terre Haute business

    The Terre Haute Tribune Star is reporting:

    Agents of the FBI and Environmental Protection Agency, assisted by state and local officials, executed a search warrant Thursday morning at a Terre Haute business with a recent history of environmental issues.

    A group of about 30 agents entered the grounds of Wabash Environmental Technologies, LLC, 1331 S. First St. early Thursday, spending all day at the facility.

    The agencies involved and the owner of the company, commented only in general terms, or not at all, about what the warrant entailed.

    "This morning, approximately 30 agents from the Environmental Protection Agency, Federal Bureau of Investigation, Department of Defense, Indiana Department of Environmental Management, Indiana Department of Natural Resources and the Terre Haute Police Department, executed a search warrant at Wabash Environmental Technologies in Terre Haute," said Claudia Cummings, a spokeswoman for the U.S. attorney's office in Indianapolis. "There is no acute threat to area residents, and no conclusions should be drawn from the fact that a warrant has been executed." * * *

    WET organically treats wastewater. The 6 million gallon capacity facility was built in the early 1990s by a company needing thousands of gallons of wastewater processing capability to service an adjacent manufacturing plant. The plant, designed to produce an animal hormone, never started operation.

    Cummings declined to say whether the warrant service would shut down operation of the plant. Hagerman has said previously that any suspension of the plant's operation would harm its ability to process wastewater, because the micro-organisms used to process the water would die off.

    Hagerman and then-co-owner Michael Bowen bought the facility in 2000, intending to conduct environmental quality control testing for pharmaceutical manufacturing companies. The company received National Pollution Discharge Elimination System permits in February 2001, using the processing tanks to treat wastewater trucked into the site.

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to Environment

    Indiana Decisions - 7th Circuit posts one

    Branham, Gary L. v. Snow, John W. (SD Ind., John Daniel Tinder, Judge)

    Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.
    RIPPLE, Circuit Judge. Gary L. Branham brought this action
    under the Rehabilitation Act of 1973 (“Rehabilitation Act”
    or “the Act”), 29 U.S.C. § 701 et seq., against his employer,
    the Internal Revenue Service (“IRS”), for failing to hire him
    as a Criminal Investigator in its Criminal Investigation
    Division. The district court granted the IRS’ motion for
    summary judgment on the ground that Mr. Branham was
    not disabled for purposes of the Rehabilitation Act. For the
    reasons set forth in the following opinion, we now reverse
    the judgment of the district court and remand the case for
    proceedings consistent with this opinion. * * *

    On the record in this case, a reasonable trier of fact could
    find that Mr. Branham is qualified for the position of
    criminal investigator. Therefore, we must conclude that the
    IRS is not entitled to summary judgment on the question of
    Mr. Branham’s qualifications. See Anderson, 477 U.S. at 248
    (“summary judgment will not lie . . . if the evidence is such
    that a reasonable jury could return a verdict for the nonmoving
    party”). Mr. Branham has raised a genuine issue of
    material fact as to whether he can perform the essential
    functions of the position of criminal investigator without
    becoming a threat to the safety of himself or others. On this
    record, the agency has not established otherwise.

    For the reasons set forth in this opinion, the judgment of
    the district court is reversed and the case is remanded for
    proceedings consistent with this opinion. Mr. Branham may
    recover his costs in this court.

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to Ind. (7th Cir.) Decisions

    Indiana Decisions - Transfer list for week ending December 17, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending December 17, 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, December 17, 2004
    Posted to Indiana Transfer Lists

    Indiana Courts - Supreme Court grants Marion County Courts $15,000

    Via a release from the Office of the Chief Justice of Indiana:

    A fresh infusion of cash from the Supreme Court will help move termination of parental rights more swiftly though the juvenile courts system, Associate Justice Frank Sullivan announced today.

    The $15,000 grant from the Supreme Court’s Court Improvement Program will continue the pay for a part-time commissioner to hear Termination of Parental Rights cases in the Marion County Superior Court system and extend the life of the program.

    Marion County Superior Court Judge James Payne said the funding has been very beneficial to the citizens of Indianapolis. “With these funds, Marion County has started a program to improve services by early referrals for parents to the services to have children returned. That program continues as a nationally recognized approach to early intervention. Modeled after the Lake County pilot, the current grant has allowed termination cases to receive special attention from a hearing officer dedicated to these important cases,” said Judge Payne.

    The Court Improvement Project is a federally funded program overseen by the Supreme Court and has been supplemented with funds from the Indiana General Assembly. The project’s funds are intended to help juvenile courts put Children In Need of Services cases on a “fast track” to reduce the time children spend in the juvenile justice system. A backlog of Termination of Parental Rights cases can cause delays in finding a permanent solution for children placed in foster care. The additional commissioner helps move the cases along.

    A Court Improvement Project Executive Committee led by Justice Sullivan reviews grants from courts that wish to attempt new and innovative ways to help troubled and challenged children. “Resolving cases involving children should be done quickly and effectively. Marion County has done a great deal to improve the way cases with children are handled. We believe this new funding will help them continue the good work they have begun,” said Justice Sullivan, who has led this effort along with Chief Justice Randall T. Shepard.

    Since it was first organized in 1995, the Court Improvement Project has distributed over $900,000 to support court programs and technology development around the state. In early 2004, the Marion County Court system received a grant of $35,830, which had been matched by a grant from the county of $12,101 for the commissioner’s position. Funding for that grant will end March 1, 2005 and the request from the Marion County Court system will extend the funding until May 30, 2005.

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

    Indiana Law - Following up on earlier entires on validity of local multiyear contracts

    Can a town council grant a multiyear employment contract that extends beyond the terms of a majority of its members? The ILB posted entires on this question, arising out of a dispute over a Merrillville council sheriff's contract, on 10/30/04; 11/16/04; and 11/30/04.

    The Munster Times reports today on another, related dispute. The headline: "Appeal of lawsuit within law: Town attorney didn't need full council approval before proceeding." Some quotes:

    Town Attorney Stephen Bower apparently didn't break any laws when he recently appealed a legal decision favoring former Police Chief John Shelhart.

    His action, based on the solitary nod from Town Council President Joe Shudick, was severely criticized by Town Councilman David Uzelac, D-4th, at Tuesday's council meeting. Uzelac questioned Bower's decision not to relay information to all members in an executive session as well as the future cost to taxpayers to continue the case in the courts.

    "I feel we're putting the town in a dire funding situation," Uzelac said Tuesday.

    Legal counsel from the Indiana Association of Cities and Towns confirmed that Bower didn't need to have the go-ahead from all council members.

    "The town is represented by the town attorney as an entity and the Town Council president is an executive of the town. Although he doesn't have as much power as the mayor, he acts as an agent of the Town Council," said association representative Brandon Cockrum.

    Bower also defended the legal expenditure of the town, which last year cost $2,400 for his handling of the case, compared to the $125,000 plus interest that a judge has said should be awarded to Shelhart. * * *

    Lake Superior Court Judge Robert Pete in his Nov. 5 ruling said a March 2003 contract between Shelhart and the council was legally binding. He said the 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.

    Pete in his ruling said the town owed Shelhart for wages he would have earned as police chief. That amount is about $125,000, said David Westland, Shelhart's attorney.

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to Indiana Law

    Indiana Decisions - More on Court of Appeals overturning verdict against DePauw

    Wednesday (Dec. 15) the ILB posted this entry referencing an AP story about the Indiana Court of Appeals overturning "a jury's verdict finding that DePauw University had improperly punished a former part-time teacher who claimed she was removed for keeping copies of a conservative Christian magazine in her classroom."

    Unfortunately, the decision was classified as Not for Publication and thus is not available via the Courts' website. Via the Clerk of the Courts office, I have now obtained a copy of the opinion so that those interested may review the Court's reasoning themselves, rather than relying upon a necessarily shortened newspaper summary:

    DePauw University v. Janis K. Price (12/14/04 IndCtApp - NFP] [Employment Law; Religious Harassment Claim]
    Crone, Judge

    Breach of Procedure Claim. * * * Here, Price characterizes her breach of procedure claim as a “breach of contract claim based on the terms of [the Handbook].” According to Price, her claim is premised on the notion that the Handbook “could create contractual rights” despite the fact that it is not mentioned in the appointment letter and is not an executed document. * * * Even assuming, arguendo, that the Handbook was part of Price’s employment contract with DePauw, Price’s claim fails. * * *

    It is undisputed that Price accepted the terms of her appointment letter, performed her duties, and collected her salary and benefits; she cannot now be heard to complain that DePauw breached the terms of the Handbook. Accordingly, we reverse the trial court’s denial of DePauw’s motion for summary judgment on Price’s breach of procedure claim and enter judgment in DePauw’s favor. * * *

    Religious Harassment Claim. For similar reasons, we affirm the trial court’s grant of summary judgment in favor of DePauw on Price’s religious harassment claim. In her second amended complaint, Price alleged that DePauw failed to comply with the harassment policy outlined in Section X of the Handbook’s personnel policies, i.e., DePauw “breached its agreement to keep her free from because of her religious beliefs.”

    The fact remains, however, that Price chose to accept the purported demotion when she signed the appointment letter for the 2001-2002 academic year. In other words, the alleged breach of the Handbook was apparent before the contract was executed. To the extent that the breach may have continued thereafter, Price – having expressly ratified it – may not now complain of it. * * * It is therefore unnecessary for us to determine whether the Handbook could be used to create unilateral contractual rights separate and distinct from the employment contract itself.
    Affirmed in part and reversed in part.
    RILEY, J., and VAIDIK, J., concur.

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to Ind. App.Ct. Decisions

    Enviroment - Pentagon Proposes Loosening Its Environmental Policy

    "Pentagon Proposes Loosening Its Environmental Policy" is the headline to a story today in the Los Angeles Times. Some quotes:

    WASHINGTON — The Defense Department, which has won congressional exemptions from environmental laws in the last two years, now wants to change an internal policy that commits the department to sound environmental practices.

    A draft of the proposal, which would replace a 1996 directive, eliminates the Pentagon's vow to "display environmental security leadership within DOD activities worldwide." It stresses, instead, the "national defense mission."

    The new proposal replaces a list of concrete responsibilities with vague guidance to the military about how to prevent pollution and guarantee compliance with federal and international laws. * * *

    The Defense Department has a checkered environmental record. It has more facilities on the Superfund National Priorities List than any other entity in the U.S. It is blamed for contaminating billions of gallons of drinking water. A 2003 report by the Democratic staff of the House Committee on Energy and Commerce concluded that the department was responsible for "28,500 potentially contaminated sites across the country." * * *

    [Jeff Ruch, executive director of Public Employees for Environmental Responsibility] said the proposal reflects a view within the Pentagon that environmental protection is not a priority. Defense Department environmental specialists who belong to Public Employees for Environmental Responsibility have told him that they have used the 1996 directive to stress the importance of their work to their superiors.

    "America's defenders — the men and women who lead our armed forces — know that we don't have to pollute America to protect it," said Sierra Club Executive Director Carl Pope.

    Pope said the military has been responsible for some of the "best and most visionary environmental innovation" in the past, adding, "It's sad that the politicians who run the Pentagon are afraid of it and want to slow it down."

    Since President Bush took office, the Pentagon has won exemptions from the Migratory Bird Treaty Act, the Marine Mammal Protection Act and the Endangered Species Act and seeks exemption from the Clean Air Act and two toxic waste laws.

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to Environment

    Law - New Rules For Federal Judges Are Weaker, Critics Say

    "New Rules For Judges Are Weaker, Critics Say" is the headline to a story today in the Washington Post. Some quotes:

    A judicial conduct committee has rewritten the ethics guidelines for federal judges in a way that legal experts and critics said allow judges to take more corporate-funded trips and avoid disclosing their attendance.

    The committee said it revised the rules in response to public and congressional criticism of judges taking all-expenses-paid trips to "judicial education" seminars. These events were often held in luxury hunting lodges and in Arizona golfing resorts, and paid for at least in part by petroleum, chemical and manufacturing companies whose interests often come before federal courts, records show. But critics said the new rules actually weaken the attendance and disclosure guidelines.

    Posted by Marcia Oddi on Friday, December 17, 2004
    Posted to General Law Related

    Thursday, December 16, 2004

    Environmental Issues - Property rights versus farmland protection at issue in Porter County rezoning

    "Property rights versus farmland protection at issue in rezoning" was the headline to a very good report this week in the Chesterton Tribune by Vicki Urbanik. This is one that should be read in full, and I don't know how long it will be available on the Tribune's site, so check it out now. Here are some quotes:

    A pending rezoning in south Porter County highlights the dilemma facing a growing county with rich farmland: At what point is a landowner’s right to develop outweighed by the goal of preserving one’s rural heritage?

    That issue will be among the many to be hashed out in the months ahead as county planners work to overhaul the zoning and subdivision control ordinances affecting the unincorporated areas. The current land use plan calls for farmland preservation, but that plan is only a guide. It will be up to the rewritten ordinances to spell out precisely how farmland can be protected in the face of development.

    A case that was heard at a public hearing last week points to some of the challenges ahead.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Environment

    Indiana Government - [Updated] Agriculture/Lt. Gov. aides named

    Two persons were named today to serve in the agriculture area and Lt. Gov. Skillmen named her chief of staff - per this AP story today on the Indianapolis Star website. Some quotes:

    Daniels said today that Andy Miller, 35, will head a "strengthened" agriculture department. Lt. Gov.-elect Becky Skillman, by law, will serve as the state's agriculture commissioner. * * *

    Daniels also recommended Cynthia Hoye as the new executive director of the Indiana State Fair Commission. Hoye, 47, has been marketing director and senior manager of the commission since 1988. The commission approved Hoye's appointment today.

    Skillman announced today that Anne Hazlet will be her chief of staff. Hazlet spent several years working with the U.S. House Agriculture Committee in Washington.

    [Updated 12/17/04] The Star has this story today, headlined: "Daniels replaces fair's leader: Marketing director moving up to top post; popcorn firm officer to be agriculture chief."

    Lesley Stedman Weidenbener of the Louisville Courier-Journal has this story, headlined "Daniels to consolidate farm programs: Indianapolis man to guide efforts." Some quotes:

    A popcorn company executive will lead the state's agriculture efforts, although his title and the structure of his agency have yet to be determined, Gov.-elect Mitch Daniels announced yesterday.

    Andy Miller, vice president of Weaver Popcorn in Indianapolis, said his first task will be to determine just what functions a remade agriculture agency should handle. But Daniels promised it will be a "strengthened" department that will help farmers generate more net income at higher margins. * * *

    Currently, farm regulation and other agriculture-related functions are spread among a number of agencies, something the Indiana Farm Bureau has said it wants to see eliminated.

    The organization intends to back legislation that would create an agriculture department that reports directly to the governor, instead of the lieutenant governor, as is now the case under state law.

    A consolidated agency could include the permitting now handled by the Indiana Department of Environmental Management and eliminate some boards that oversee individual parts of the industry. * * *

    Miller will report to Lt. Gov.-elect Becky Skillman, who by law is the state's agriculture commissioner.

    Indiana Farm Bureau President Don Villwock said yesterday that he supports Daniels' efforts and looks forward to his changes, even though they will likely fall short of one of the group's key goals: A cabinet-level agriculture secretary.

    Daniels said he will view Skillman, a longtime champion of rural issues, in that role and promised she will be more involved in agricultural programs than lieutenant governors have been in the past.

    But she has a number of other duties as well. Daniels has designated Skillman to take the lead on the new administration's legislative agenda, which the governor-elect has promised will be the most aggressive in decades.

    Skillman, a former state senator from Bedford, also will serve in the largely ceremonial role of president of the Senate and will oversee tourism and community development. * * *

    Meanwhile, Skillman announced that Cynthia Hoye will become the executive director of the Indiana State Fair Commission. Hoye, 47, has served as the commission's marketing director and senior manager since 1988.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Government

    Indiana Decisions - 7th Circuit posts three today

    PPM Finan Inc v. Norandal USA Inc (ND Ill.)

    Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
    EVANS, Circuit Judge. In this commercial dispute, one
    creditor, Jackson National Life Insurance Company, sued
    another, Norandal USA, Incorporated, demanding that
    Norandal fork over a substantial sum of money it obtained
    from a common debtor, who we will simply call Scottsboro.
    The district court agreed with Jackson and granted its motion
    for summary judgment to the tune of $4.4 million, including
    prejudgment interest. Aggrieved by this decision,
    Norandal appeals.
    Caldwell-Baker Co v. Parsons, Fred L. (SD Ill.)
    Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
    EASTERBROOK, Circuit Judge. Caldwell-Baker Company
    and affiliates (collectively Caldwell-Baker) leased several
    hundred railroad cars to Southern Illinois Railcar Company.
    When the business relation went sour, Caldwell-Baker sued
    the Railcar Company plus Fred Parsons, its manager and
    principal investor, for breach of contract and fraud. * * *

    Many kinds of error may require retrials; the prospect that two trials
    will be necessary does not make the final-decision rule vanish.
    Interlocutory decisions often become irrelevant before the
    case’s end; that’s a reason to defer rather than accelerate
    appellate review. The appeal is dismissed for want of jurisdiction.

    Baldwin Piano Inc v. Deutsche Wurlitzer (ND Ill.)
    Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
    EASTERBROOK, Circuit Judge. The Wurlitzer Company, a
    producer of pianos, organs, jukeboxes, and other musical
    equipment throughout the world, was split up in 1985.
    Wurlitzer’s direct descendent, and proprietor of its organ
    and piano businesses, is Baldwin Piano. One of Wurlitzer’s
    former subsidiaries, Deutsche Wurlitzer GmbH, was spun
    off to Nelson Group Holdings Pty Ltd., an Australian firm.
    Deutsche Wurlitzer makes and sells jukeboxes and associated
    products bearing the Wurlitzer name. Multiple entities
    cannot own the same trademark for one field, such as
    music. See Forum Corp. v. Forum, Ltd., 903 F.2d 434, 442
    (7th Cir. 1990). The mark’s ownership followed the parent
    company (and thus found its way to Baldwin Piano). Deutsche
    Wurlitzer received a license to use the mark in connection
    with jukeboxes and related gear. In 2003 Baldwin Piano
    told Deutsche Wurlitzer that the license was cancelled, effective
    immediately, and the same day filed this suit under
    the Lanham Act, 15 U.S.C. §1114(1)(a), seeking an injunction
    against Deutsche Wurlitzer’s use of the Wurlitzer mark
    in the United States. Baldwin Piano did not give any reason
    for taking these steps. The district court granted summary
    judgment to Baldwin Piano, 2004 U.S. Dist. LEXIS 114 (N.D.
    Ill. Jan. 5, 2004), and issued an injunction, 2004 U.S. Dist.
    LEXIS 2380 (N.D. Ill. Feb. 9, 2004), from which Deutsche
    Wurlitzer has appealed.

    Deutsche Wurlitzer contends that the 1985 license is
    terminable only for cause. * * *

    Thus both linguistic and economic contexts favor treating
    the 1985 license as perpetual, subject to the provisos in
    Articles 13 and 14. Illinois law does not upset the parties’
    transaction. The injunction is vacated, and the case is
    remanded with instructions to enter judgment in favor of
    Deutsche Wurlitzer.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Court of Appeals decides four

    Todd Heller, Inc. v. Indiana Department of Transportation (12/16/04 IndCtApp) [Contracts]
    Riley, Judge

    Appellant-Plaintiff, Todd Heller, Inc. (Heller Inc.), appeals a negative judgment in its breach of contract suit against Appellee-Defendant, Indiana Department of Transportation (INDOT). We reverse and remand.

    Issues. Heller Inc. raises three issues on appeal, which we consolidate and restate as the following two issues: Whether the trial court erred by finding that that there is no usage of trade in the glass bead industry that supplemented the contract between Heller Inc. and INDOT; and Whether the trial court’s judgment in favor of INDOT was clearly erroneous. * * *

    Conclusion. Because the evidence is without conflict and all reasonable inferences to be drawn therefrom lead to the conclusion that there is a usage of trade in the glass bead industry with respect to the proper method of performing the AASHTO moisture resistance test, we find that the trial court clearly erred in concluding that there is no such usage of trade. We also conclude that the trial court’s judgment that Heller Inc. is the breaching party is clearly erroneous and contrary to law. Accordingly, we reverse the judgment and remand with instructions to the trial court to award the damages Heller Inc. proved at trial. Reversed and remanded.
    CRONE, J., concurs.
    VAIDIK, J., dissents with opinion.
    I respectfully disagree with the majority’s conclusion that the trial court erred in finding in favor of INDOT. The majority’s holding is premised on the fact that “there is a usage of trade in the glass beads industry that dictates how the AASHTO moisture resistance test is to be performed.” Whether there exists a usage of trade regarding how AASHTO performs its moisture test, however, is not the determinative issue before this Court.

    The majority correctly points out that the agreement is one for the sale of goods; and thus, it is governed by Indiana’s commercial code. Of particular relevance to this case is Indiana Code § 26-1-1-205(4), which states:

    The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade and course of dealing controls usage of trade.
    * * * In light of this unequivocal statement that INDOT sampling, testing, and reporting methods were to be employed, I cannot say that usage of trade considerations regarding how AASHTO sampling and testing methods are performed, if such a usage of trade indeed exists, would override the parties’ written agreement. See Ind. Code § 26-1-1-205(4). Consequently, I would affirm the trial court’s judgment in favor of INDOT.
    Kenneth R. Shepherd v. Raymond D. Truex, et al. (12/16/04 IndCtApp) [Procedure]
    Hoffman, Senior Judge
    * * * Based upon the foregoing discussion and authorities, we conclude that Shepherd failed to meet his burden of convincing this Court that the trial court erred by entering summary judgment in favor of McGlennen, Heller, and Wolf. Additionally, Shepherd failed to make any showing that the trial court abused its discretion by not allowing his new evidence at the summary judgment hearing. We also conclude that the trial court’s entry of summary judgment was proper because it was not required to specifically state the legal basis of its judgment, and we further determine that the facts are insufficient to raise the question of impropriety by the trial court and defense counsel. Moreover, the Indiana Supreme Court has exclusive jurisdiction over alleged violations of the Code of Judicial Conduct; therefore, we cannot determine whether the trial judge violated a Judicial Canon. In addition, by wholly failing to present cogent argument, Shepherd has waived review of his assertion that a motion pursuant to Ind. Trial Rule 60(B) for fraud upon the court can be filed in a court other than the one in which the original judgment was rendered. Finally, we conclude that due to Shepherd’s substantive and procedural bad faith, McGlennen, Heller, and Wolf are entitled to an award of appellate attorney fees.
    Affirmed and remanded to the trial court for determination of appellate attorney fees.
    KIRSCH, C.J., and RILEY, J., concur.
    Terry Berry v. State of Indiana (12/16/04 IndCtApp) [Criminal Law & Procedure]
    Najam, Judge
    Following a jury trial, Terry Berry (“Berry”) was convicted of Attempted Aggravated Battery, as a Class B felony, and the trial court sentenced him to twelve years. Berry now appeals and presents the following issues for our review: Whether the State presented sufficient evidence to sustain his conviction. Whether the trial court abused its discretion when it imposed a twelve-year sentence. We affirm. * * *

    Berry’s conduct before, during, and after the shooting is fully consistent with that of an accomplice. We therefore conclude that the State presented sufficient evidence to support his conviction for attempted aggravated battery as an accomplice. Berry’s arguments amount to a request that we reweigh the evidence and assess witness credibility, which we will not do. * * *

    Here, the trial court did not detail Berry’s criminal history in its sentencing statement, but the pre-sentence report reveals that it is substantial. Berry, who is only twenty-eight years old, has already accumulated a criminal record consisting of convictions for dealing in cocaine, possession of cocaine, and possession of alcohol by a minor and delinquency adjudications for possession of cocaine, illegal possession of a handgun, auto theft, See footnote criminal trespass, and truancy. Moreover, the pre-sentence report was discussed extensively at the sentencing hearing, and Berry’s counsel conceded that the trial court could properly enhance the sentence given Berry’s criminal history. Indeed, at the hearing, Berry’s counsel stated, “We know that [Berry’s] criminal history is there; that the Court may aggravate the sentence; and that a presumptive on this is ten years.” Transcript at 297 (emphasis added). Berry cannot now claim that the trial court erred when it relied on his criminal history. * * *

    The State argues that Indiana’s sentencing scheme differs from the one struck down in Blakely and that it therefore does not run afoul of the Sixth Amendment. Specifically, it asserts that “Blakely does not require jury findings under Indiana’s sentencing scheme” because a “presumptive” sentence is no more than a guidepost which enables the trial court to impose an appropriate sentence. But in Strong v. State, 817 N.E.2d 256 (Ind. Ct. App. 2004), another panel of this court recently addressed this very issue and concluded that Blakely does apply to Indiana’s sentencing scheme. Indeed, our sentencing scheme is similar to the one struck down in Blakely. * * *

    In Indiana, the presence of a single aggravating circumstance may lead to an “enhanced” sentence, i.e., one greater than the presumptive sentence, just as the presence of an aggravating circumstance justifies the imposition of sentence above the forty-nine to fifty-three month standard range sentence under the Washington regime. Thus, Indiana’s presumptive sentence constitutes the Blakely “statutory maximum.” See Strong, 817 N.E.2d 256, 261 (Ind. Ct. App. 2004); Holden v. State, 815 N.E.2d 1049, 1059 n.6 (Ind. Ct. App. 2004). We therefore reject the State’s assertion that the presumptive sentence functions as a sentencing guidepost for Indiana trial courts. Consistent with our decision in Strong, we hold that Blakely prohibits our courts from imposing a sentence greater than the presumptive one based on a factor not admitted by the defendant or submitted to a jury and proven beyond a reasonable doubt. * * *

    Finally, Berry argues that the trial court violated Blakely when it imposed a twelve-year sentence based on the aggravators other than Berry’s criminal history. Pursuant to Blakely, the trial court may not impose a sentence greater than the presumptive sentence unless: (1) the facts supporting an enhanced sentence are found by a jury or admitted by the defendant; (2) the defendant has a criminal history; or (3) the defendant has waived his right to a jury at sentencing. See Blakely, 124 U.S. at 2536-37, 2541. * * *

    Nonetheless, “a single aggravating circumstance is adequate to justify a sentence enhancement.” Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Thus, Berry’s criminal history, alone, is a sufficient basis for imposing an enhanced sentence. See Bledsoe v. State, 815 N.E.2d 507, 508 (Ind. Ct. App. 2004), opinion on reh’g. The presence of a second aggravating circumstance, the risk that Berry would commit another crime, indicates that there is no reasonable possibility that the nature and circumstances aggravator contributed to the slight enhancement of Berry’s sentence. See Holden, 815 N.E.2d at 1060 (presence of three different aggravating circumstances sufficient to uphold enhanced sentence despite trial court’s improper reliance on other aggravators). The trial court’s improper reliance on the nature and circumstances of the offense is not dispositive, and we hold that the trial court did not err when it imposed an enhanced sentence for attempted aggravated battery.

    CONCLUSION. The State presented sufficient evidence to convict Berry of attempted aggravated battery, and the trial court did not abuse its discretion when it sentenced Berry to twelve years, two years beyond the presumptive sentence for that crime. Further, the sentencing statement was adequate. Finally, while Blakely applies to Indiana’s sentencing scheme, it does not affect Berry’s sentence. For the foregoing reasons, we affirm Berry’s conviction and his twelve-year sentence. Affirmed.
    SULLIVAN, J., and BARNES, J., concur.

    Mark Swift v. State Farm Insurance Company (10/27/04 IndCtApp) [Workers Compensation]
    [Apparently originally NFP]
    Robb, Judge
    After being injured in a work-related accident with Katherine Griffin, Mark Swift received compensation for his medical expenses and permanent partial impairment through his employer’s worker’s compensation insurer, State Farm Insurance Company (“State Farm”). Swift settled his subsequent lawsuit against Griffin, and State Farm requested repayment of the compensation it paid to Swift. After Swift refused to repay, State Farm filed an Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (the “Board”). The Board concluded that State Farm was entitled to repayment, and Swift appeals. We affirm. * * *

    State Farm counters that it filed its petition with the Board to request a determination of the amount of its lien for purposes of reimbursement under Indiana Code section 22-3-2-13 See footnote , which does not expressly state a deadline for filing such petitions. Therefore, State Farm argues that the Board properly accepted jurisdiction because Indiana Code section 22-3-3-3 and its time bar to filing applications did not apply.

    We agree with State Farm. On its Application for Adjustment of Claim, State Farm requested a hearing with the Board for the following reason: “The employer and its worker’s compensation insurance carrier request a determination of benefits paid under the Indiana Worker’s Compensation Act.” Appellant’s Appendix at A-1. Indiana Code section 22-3-3-3 states, “ The right to compensation under [the Indiana Worker’s Compensation Act] shall be forever barred unless within two (2) years after the occurrence of the accident . . . a claim for compensation thereunder shall be filed with the worker's compensation board.” (Emphasis added). In its petition, State Farm did not request compensation; instead, it requested a hearing to determine the amount of the lien it was entitled to for compensation it had already paid to Swift. Therefore, Indiana Code section 22-3-3-3 was not applicable to State Farm’s petition.

    Conclusion. Because State Farm’s petition falls under Indiana Code section 22-3-2-13, we hold the Board properly accepted jurisdiction. Therefore, we affirm the Board’s decision. Affirmed.
    SHARPNACK, J., and DARDEN, J., concur.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Supreme Court decides one

    Story Bed & Breakfast, LLP v. Brown County Area Plan Commission and Patricia N. March (12/16/04 IndSCt) [Zoning; Real Estate; Administrative Law]
    Boehm, Justice

    We hold that covenants imposed by the Brown County Area Plan Commission as conditions for approval of a planned unit development are enforceable against a subsequent purchaser of property subject to the PUD. * * *

    The Court of Appeals concluded that it was impossible to draw a meaningful line between “conditions” and “commitments” and focused on whether B&B had reasonable notice of the land use restrictions. Story Bed & Breakfast, LLP v. Brown County Area Plan Comm’n, 789 N.E.2d 13, 17-18 (Ind. Ct. App. 2003). The Court of Appeals held that placing the restrictions in the minutes of the plan committee meetings did not provide B&B reasonable notice and therefore the restrictions were unenforceable. Id. at 20. Clarifying its earlier holding on rehearing, the Court of Appeals rejected the Plan Commission’s claim that B&B’s knowledge of the PUD designation put B&B on inquiry notice of the specific terms of the conditions. Story Bed & Breakfast, LLP v. Brown County Area Plan Comm’n, 794 N.E.2d 519, 523 (Ind. Ct. App. 2003). We granted transfer. Story Bed & Breakfast, LLP v. Brown County Area Plan Comm’n, 812 N.E.2d 793 (Ind. 2004).

    [Note: Access the ILB summaryof the 5/26/03 Court of Appeals decision here, and of the 8/30/03 Court of Appeals opinion on rehearing here (4th item).]

    I. Planned Unit Developments * * *

    C. The Legal Status of the Story Restrictions
    All agree that the Story Property is a PUD, that its approval with covenants was designed to protect adjacent properties, and that these restrictions applied to the property in the hands of Story Group, its original developers. The issue is whether B&B is also bound by the same covenants. The trial court granted summary judgment to the Plan Commission and against B&B on the question whether these covenants applied to B&B as a successor of Story Group. * * *

    The Plan Commission thus drew two legal conclusions: First, it was permissible to have enforceable conditions without recording them, and, second, that these restrictions were in that category. Two amici curiae, the Indiana Association of Cities and Towns and Indiana Municipal Lawyers Association, without supporting evidence, state that the practice of imposing conditions on PUD approvals is widespread. The administrative construction of the agency’s own documents and statute is entitled to weight. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Healthscript, Inc. v. State, 770 N.E.2d 810, 814 (Ind. 2002) (noting the scholarly debate over Chevron’s application to administrative statutes that are criminally enforceable); LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000) (“An interpretation of a statute by an administrative agency charged with the duty of enforcing the statute is entitled to great weight, unless this interpretation would be inconsistent with the statute itself.”). The wisdom of distinguishing conditions from commitments in this respect is a matter for the legislature. We conclude, as the trial court did that, the Indiana statutes governing PUDs do not require that conditions attached to approval of a PUD be recorded in the recorder’s office to be effective against subsequent purchasers as long as the conditions are available as public records. Rather, they are in the nature of zoning ordinances which are effective against the public at large.

    D. Bona Fide Purchaser
    Apart from whether unrecorded PUD conditions are enforceable against bona fide purchasers, B&B was not a bona fide purchaser without notice. * * *

    The Plan Commission’s and Brown County Commissioners’ records relating to the Story PUD approval are public records open to public inspection. I.C. §§ 5-14-3-2, 5-14-3-3 (1983). B&B never attempted to view these records, and B&B conceded in the trial court that it had no evidence that the Story PUD approval conditions were not available for inspection in the Plan Commission or Brown County Commissioner offices. B&B, with knowledge that the property was a PUD, and charged with knowledge that “conditions” had been or could have been imposed and might not be of record, failed to examine the publicly available records. B&B’s actual knowledge of the PUD approval put B&B on inquiry notice of the use and development conditions.

    II. Brown County Zoning Ordinance
    B&B’s primary contention is that the restrictions contained in the PUD are not “conditions” and therefore are not enforceable against it because it purchased the property without knowledge or notice of the restrictions. However, the trial court sua sponte raised the issue of whether the Brown County Zoning Ordinance required that the conditions be recorded and denied complete summary judgment because “ . . . sufficient ambiguities exist to require evidence at trial on the meaning of the zoning ordinance.” * * *

    We agree with the trial court that the ordinance is less than clear whether conditions, if imposed, are to be recorded. However, in view of the resolution of the notice issue in Part I.D, that issue is not material in this case. At most the ordinance recording requirement is necessary to give notice of the conditions to third parties, and it is not necessary to make the condition effective as to the original applicant or those with notice. B&B had actual notice of the PUD designation, and therefore was on inquiry notice of the specific terms of the conditions. The County may wish to amend its ordinance, or routinely record PUD designations and conditions to avoid these issues in the future, but the ambiguity identified by the trial court and failure to meet a recording requirement under the ordinance is immaterial in this case.

    III. Equitable Estoppel * * *

    The PUD conditions are valid and enforceable against B&B because it had actual notice of the PUD designation and was on inquiry notice of the conditions. The Plan Commission is not estopped from enforcing the conditions. This case is remanded for further proceedings consistent with this opinion.
    Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Decisions

    Indiana Government - Businesses present legislative wish list

    "Businesses present legislative wish list: Like odds with GOP in control" is the headline to this story today in the Fort Wayne Journal Gazette. Some quotes:

    Hoosier businesses say new, Republican control of the governor’s mansion and both houses of the General Assembly is an unprecedented opportunity to push their agendas for lower taxes, fewer regulations and more government investment in economic development.

    The Northeast Indiana Chamber Coalition, a group of more than a dozen Chambers of Commerce across the region, and the Indiana Chamber presented their legislative wish list to members Wednesday at the Greater Fort Wayne Chamber of Commerce. Chamber officials, as well as state Rep. Randy Borror and Sen. Dennis Kruse, said the 2005 outlook for business is the best it’s been in a generation.

    “This is going to be a really exciting time for business,” said Brian Bergsma, the Indiana Chamber’s lobbyist. “What’s most important, though, is there be no backsliding on what’s been done in the last few years.”

    The two groups’ agendas largely mirrored each other, with both supporting more tax breaks for business investment, opposing new business taxes and opposing new regulations on business.

    Both also support statewide implementation of daylight-saving time. Areas of the state currently on Eastern Standard Time should adopt Eastern Daylight Time, Bergsma said, and the few counties on Central Standard Time should adopt Central Daylight Time. * * *

    Vince Griffin, vice president of environmental and energy policy for the Indiana Chamber, detailed legislative priorities such as changing state law on late wages. Currently, employers who don’t pay their workers on time can be charged 10 percent interest per day; the Indiana Chamber wants to change that to 10 percent per year. It also wants to ensure there is no requirement to pay workers on family leave or at school functions. The group also opposes an elimination of the at-will doctrine, which lets employers fire employees for no reason and without notice.

    “It’s disruptive for the business to have employees leave under (the Family Medical Leave Act), and then to have to pay them when they’re gone would just crush small and medium-sized businesses,” Griffin said. “There’s a number of areas in labor law we need to clean up.”

    Griffin said the Indiana Chamber also wants to change how environmental rules are made. Currently, rules are set by the Indiana Department of Environmental Management. “IDEM pretty much runs the rule-making process,” Griffin said. “That’s wrong.” * * *

    Kruse, R-Auburn, drew applause from the large crowd by opening his remarks with, “Indiana is now open for business.” “The atmosphere in Indianapolis is as exciting as I’ve seen it,” Kruse said.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Decisions

    Indiana Government - Mixed review for new child services agency and agency head

    An editorial in the Fort Wayne Jounral Gazette today opines:

    Gov.-elect Mitch Daniels’ decision to split up the giant Family and Social Service Administration and create a separate agency responsible for the welfare of children is a sound move that has much promise to increase the state’s responsiveness and responsibility. His choice of the new children’s agency director, however, raises questions and will demand that Daniels closely monitor the executive’s performance. * * *

    The governor-elect has displayed solid judgment in a number of areas since defeating incumbent Joe Kernan, but his appointment of a Marion County juvenile court judge to head the agency is already raising eyebrows. The skills important for any judge, who has nearly unfettered power and whose word is literally law, aren’t necessarily the same as an administrator of a large bureaucracy, where carrots are more important than sticks in motivating employees. And, as the Indianapolis Star reported Wednesday, “James W. Payne is a maverick judge who has ruled Marion County’s juvenile justice system with an iron fist for 20 years.” * * *

    Hoosiers have every reason to be pleased about Daniels’ FSSA restructuring plans even as they are wary of his choice of the new children’s agency leader.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Government

    Indiana Law - Warrick commissioners OK zoning ordinance

    "Warrick commissioners OK zoning ordinance" is the headline to this story today in the Evansville Courier&Press. Some quotes:

    The ordinance took two years to complete and includes several new measures designed to fit the needs of Warrick County - one of the fastest-growing counties in Indiana. Among the additions is a new special-use category for adult businesses. The new category will restrict an adult business from locating within 1,000 feet of any residential building, subdivision or area zoned residential, religious institution, school or public park. Another big change will allow the county to approve individual requests on the condition that they meet specific commitments.

    The new ordinance also brings the local ordinance into line with the latest state requirements for building in flood plains and health regulations for mobile home parks, and will allow local officials to vary fees without advertising and having a public hearing.

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Law

    Indiana Decisions - More on Dec. 14th Court of Appeals decision in Ryle v. State

    Professor Douglas Berman of the well-regarded Sentencing Law and Policy Blog has thoughtful commentary/criticism of the Indiana Court of Appeals ruling this week in Kenna D. Ryle v. State of Indiana (12/14/04 IndCtApp) [Criminal Law & Procedure]. (ILB summary here - 2nd case). He titles it "Fascinating 'prior conviction' case from Indiana."

    Posted by Marcia Oddi on Thursday, December 16, 2004
    Posted to Indiana Decisions

    Wednesday, December 15, 2004

    Indiana Decisions - Oral arguments tomorrow

    The Indiana Supreme Court will hear oral arguments tomorrow, Thursday, 12/16/04, at 9:00 a.m., in the case of Burd Management, LLC v. State. You may watch the argument live, or archived (later of course), via this site. Here is the earlier ILB summary of the Court of Appeals ruling, along with a link to the now vacated opinion:

    Burd Management, LLC v. State of Indiana (4/12/04 IndCtApp) [Condemnation]
    Kirsch, Chief Judge
    The trial court erroneously granted summary judgment in favor of the State after concluding, as a matter of law, that the State, through INDOT, was not required to prove that an offer was made prior to filing a condemnation action. The evidence presented before us shows that the appraisals were not attached to the affidavits of the appraisers. Therefore, we reverse the trial court’s order granting summary judgment in favor of the State. We remand this case to the trial court with instructions to determine, by summary proceedings or after evidentiary hearings, whether a good faith offer based on fair market value was made by the State for all of the land appropriated from Burd.

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Court overturns verdict against DePauw

    "Court overturns verdict against DePauw" is the headline to this AP story this afternoon posted on the Indianapolis Star website. Some quotes:

    GREENCASTLE, Ind. -- The Indiana Court of Appeals overturned a jury's verdict finding that DePauw University had improperly punished a former part-time teacher who claimed she was removed for keeping copies of a conservative Christian magazine in her classroom.

    The appeals court ruling issued Tuesday said the judge should have ruled in DePauw's favor and not allowed the lawsuit filed by Janis K. Price to go to trial. The ruling also rejected Price's argument that her claim of religious harassment was wrongly dismissed by the trial judge. [Ms. Price, according to the story, was represented by attorney John Price.]

    The decision throws out the $10,401 in damages for lost wages a Clay County jury awarded to Price after a trial last year on allegations that DePauw did not properly follow policies in its faculty handbook when reducing her duties.

    DePauw attorney John T. Neighbours said today the appeals court ruling was a vindication of the United Methodist-affiliated university. * * *

    The opinion is not available online; apparently it was classified as Not for Publication by the Court of Appeals. If I can obtain a copy, I will post the link to it here.

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 30 Allen County charity groups� tax exemption cut

    "30 charity groups’ tax exemption cut" is the headline to this story today in the Fort Wayne Journal Gazette. Some quotes:

    Almost 30 Allen County service organizations must begin paying taxes on property worth $17 million in 2005 after their tax exemptions were stripped or reduced this year.

    Judy Macon, president of the Allen County Property Tax Assessment Board of Appeals, said the board was forced to remove the exemptions because of a 2002 Indiana Supreme Court ruling. The court ruled that charitable organizations must prove their property is used more than half of the time in direct service of the group’s charitable purpose. If the groups failed to meet that standard, they lost their exemption.

    Macon said this decision made use of a group’s facility, not its distribution of income, the basis for determining a property-tax exemption.

    For example, many local service groups operate a bar at their headquarters for social activities. If the group primarily uses its building as a bar or for social activities – regardless of what bar revenues go to – the group is not eligible for a property-tax exemption. The ruling, however, does not affect a group’s status as a non-profit.

    Macon said this was the first year groups had to file for an exemption under the new rules, which is why so many were eliminated.

    “We had absolutely no choice,” Macon said. “A lot of those organizations are not-for-profit organizations, but they are not using the establishment for the benefit (of charity). It’s not our fault the way they choose to use their establishment.”

    What is the 2002 Indiana Supreme Court decision referenced? Based on the information in the story, I believe it to be State Board of Tax Comm. v. New Castle Lodge #147, Loyal Order of Moose (4/12/02 IndSCt). Here are some quotes from the opinion, written by Chief Justice Shepard:
    In 1992, the New Castle Moose Lodge submitted the same anecdotal type of information regarding its charitable efforts that earned it a sixty-seven percent property tax exemption in 1988. A State Board of Tax Commissioners hearing officer updated a 1988 analysis of hours of charitable use of the facility and recommended partial exemption, but the Board denied any exemption for stated reasons having little to do with the statutory “predominant use” test.

    The Tax Court reversed, holding that the Lodge’s predominant use was charitable. We granted the Board’s petition for review, in order to examine the standards applicable to a non-profit’s claim that its property is predominantly used for charitable purposes and thus exempt. * * *

    A Pragmatic Remedy. In State ex rel. State Board of Tax Commissioners v. Marion Superior Court, 271 Ind. 374, 379, 392 N.E.2d 1161, 1166 (1979), we said, “The sole relief a court may grant when an administrative decision is found to be unlawful is to vacate the decision and remand the matter to the agency for a further determination. This rule applies likewise to actions by the State Tax Board.” We cited, among other authorities, Indiana Code Ann. § 6-1.1-15-8, which in 1992 required remand to the Board “for reassessment and further proceedings in accordance with law” when a court reverses a Board decision. 271 Ind. at 379, 392 N.E.2d at 1166.

    We recognize, however, the practical difficulty the Lodge would face in trying to prove charitable facility usage ten years after the fact in accordance with a different standard than the one the Board led the Lodge to originally document. Equity demands a remedy that does not put the taxpayer at such an agency-created disadvantage.

    We note also that the record does contain some evidence of facility usage. Hearing Officer Hudson testified that he prepared a 1992 usage analysis similar to the 1988 analysis because nothing had changed in the Lodge’s operations. His figures bear this out, showing only a small decline in charitable usage percentage (from sixty-seven percent in 1988 to sixty-three percent in 1992). The Board has cited no evidence in this proceeding to justify its rejection of the hearing officer recommendation.

    We therefore conclude that the available evidence satisfies the “predominant use” requirement of the statute and entitles the taxpayer to partial exemption. We remand to the Board for a final determination regarding the Lodge’s 1992 exemption application, with evidence limited to the hearing officer’s recommendation.

    Conclusion. We affirm the remand ordered by the Tax Court, subject to the above directive.

    Dickson, Sullivan, and Rucker, JJ., concur.
    Boehm, J., not participating.

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Court of Appeals posts three today

    Jimmie L. Woodley, Allstate Insurance v. Ted & Rosella Fields (12/15/04 IndCtApp) [Insurance]
    Sharpnack, Judge

    Allstate Insurance Company (“Allstate”) appeals the trial court’s orders: (1) denying Allstate’s motion for relief from default judgment; (2) denying Allstate’s motion for partial summary judgment; (3) denying Allstate’s motion to enforce a settlement agreement; and (4) granting Ted Fields (“Fields”) and Rosella Fields’s (collectively, “the Fieldses”) motion in limine. We find the following two issues dispositive to the resolution of this case:
    Whether we have jurisdiction over the trial court’s interlocutory orders: (1) denying Allstate’s motion for partial summary judgment; (2) denying Allstate’s motion to enforce a settlement agreement; and (3) granting the Fieldses’ motion in limine; and
    Whether the trial court erred by denying Allstate’s motion for partial summary judgment on the Fieldses’ bad faith claim against Allstate. See footnote
    We reverse and remand. * * *
    DARDEN, J. concurs
    ROBB, J. concurs with separate opinion
    I concur, but write separately to note my concern regarding Allstate’s behavior once the Fieldses amended their complaint to add a bad faith claim against Allstate in March 1997. It seems clear to me that Allstate engaged in a pattern of evasion and delay once it was added as a party defendant. I acknowledge that Allstate’s post-litigation behavior cannot be a basis for a bad faith claim already filed. See slip op. at 20-21. However, I simply note that the result herein is driven by the Fieldses’ bad timing in filing their bad faith claim. All other things being equal, the result herein could have been significantly different for Allstate.
    Jessie Payton, et al v. Melvin Moore, et al (12/15/04 IndCtApp) [Real Estate]
    Najam, Judge
    Roger E. Harvey sold the same parcel of property first to James Payton and then to Clarence Hadley and Melvin Moore (“the Subsequent Purchasers”). Both deeds were recorded on different dates in 2000. Thereafter, the Subsequent Purchasers filed, in part, a quiet title and declaratory judgment action and moved for summary judgment. The trial court granted the summary judgment motion declaring that Payton’s deed for the parcel in question was void and quieted title in the Subsequent Purchasers. Payton and his wife Jessie (collectively “the Paytons”) now appeal, and we address the following dispositive issue: whether the trial court erred as a matter of law when it concluded that Payton’s deed to the disputed parcel was void ab initio. We reverse and remand. * * *

    We conclude that the trial court erred as matter of law when it entered summary judgment in favor of the Subsequent Purchasers on Counts I and II of their complaint. Regarding Count II, the Subsequent Purchasers are not entitled to a declaratory judgment that the Commissioner’s Deed was void ab initio. And because the Commissioner’s Deed is not void as a matter of law, we (1) reverse and remand with instructions to the trial court to enter summary judgment in the Paytons’ favor on Count II; (2) reverse the trial court’s entry of summary judgment on Count I quieting title to the parking lot parcel in favor of the Subsequent Purchasers; and (3) remand for further proceedings on Counts I, III, IV, and V of the Subsequent Purchasers’ complaint and the Paytons’ third party complaint. Reversed and remanded with instructions.
    SULLIVAN, J., and BARNES, J., concur.

    J.B. v. State of Indiana (12/15/04 IndCtApp) [Juvenile Law; Statutory Construction]
    May, Judge
    J.B. appeals the trial court’s order that he register as a sex offender. He questions whether the trial court erred when it determined he met the definition of “offender” as set forth in Ind. Code § 5-2-12-4(b). We affirm. * * *

    Specifically, J.B. claims the trial court erred when it found he was an “offender.” Ind. Code § 5-2-12-4(b) defines when a child may be ordered to register as a sex offender: * * *

    J.B. acknowledges he is over fourteen years old, and he does not question the court’s finding he was likely to commit another of the crimes enumerated in subsection (a). However, he argues “he cannot be an ‘offender’ because he was neither on probation or parole, nor had he been discharged from the DOC.” J.B. alleges he was removed from probation in October of 2003 when the court placed him on home detention with his grandparents and he “was never actually in detention in any secured facility,” because the DOC would not accept him. We disagree. * * *

    Rather, we see such facts as an indication he had been placed in the DOC by the court and then released by the DOC. Being discharged from the DOC is an event that gives the trial court authority to require J.B. to register as a sex offender. See Ind. Code § 5-2-12-4(b). * * *
    SHARPNACK, J., and BAILEY, J., concur.

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts two today

    USA v. Bernitt, Alan (ED Wis.)

    McKinney Restoration v. IL Dist Council 1 (ND Ill.)

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Indiana Decisions

    Environment - Recent Indiana stories

    "Poor records hindered Berne with IDEM" is the headline to this really interesting story from the Decatur Daily Democrat, that begins:

    The city of Berne has been involved for years in seemingly endless battles with the Indiana Department of Environmental Management -- as well as local developers -- revolving around sewage treatment capacity, stormwater and combined sewer overflow (CSO) issues.

    Now it has come to light that many of those battles -- including circumstances that led to a ban on new construction within the city -- could have been avoided.

    "Manure pit near Wawasee wins OK" is the headline to this story in the Fort Wayne Journal Gazette. Some quotes:
    The Indiana Department of Environmental Management has approved a 1,000-head hog farm near Lake Wawasee.

    Kevin Davidsen was granted a permit for a confined feeding operation at his farm at 11430 W. County Road 200 North outside Cromwell in Noble County, IDEM spokeswoman Amy Hartsock said Tuesday.

    The permit includes extra requirements and more stringent conditions than usually required for such an operation because of objections submitted last winter.

    Those objecting included neighbors and environmental agencies concerned about the possible pollution of Lake Wawasee and who plan to appeal the decision. * * *

    IDEM’s approval requires weekly, rather than regular monthly, inspections of the manure storage structure, according to the agency’s response to public comments.

    A compacted earthen liner must be constructed beneath the barn to protect the ground against leakage from the concrete manure pit – a first for confined feeding operations in Indiana, Hartsock said. The manure must be spread at least 100 feet from surface waters, the agency report said.

    Two stories today from the South Bend Tribune:

  • "LaPorte looks to revitalize brownfields: Plans for 'NewPorte Landing' unveiled," is the headline to this story about major plans for redevelopment of "the heart of the city."

  • "Cleanup to delay south-side project: Old landfill stumbling block for Erskine Commons" is the headline to this story, which includes interesting details on the financing of such a project. Some (non-financing-related) quotes:
    SOUTH BEND -- An old landfill will force those awaiting a major retail development on the city's south side to wait a while longer.

    Cincinnati-based Anchor Properties says it still plans to bring a Wal-Mart, a Lowe's home improvement store, and other smaller retailers and eateries to the southwest corner of Michigan Street and Ireland Road, in the $50 million Erskine Commons.

    But state environmental officials have placed tighter-than-anticipated restrictions on what Anchor can do with the waste materials still buried there. As a result, the first stores won't open until sometime in 2006, instead of late 2005 as Lowe's had hoped, Anchor and city officials say.

    Although the delay is certain to peeve south-siders seeking closer shopping options, the outcome could have been worse. As details on the extent of the needed cleanup surfaced, Gary Gilot, the city's public works director, wondered whether the project would even survive. * * *

    City and Anchor officials have always known about the landfill. To level low points in the topography, Anchor had planned to spread the landfill's contents, containing construction debris that includes bricks, concrete and steel, throughout the parking lot area of the site and cap it with about 18 inches of asphalt.

    "What happened was IDEM decided to classify (the waste) differently than what everyone else thought it should be, and, as a result, they said we were going to have do some different things with regard to movement of that soil," said Mike Ricke, Anchor's vice president of development.

    Kevin Davis, IDEM project manager, said it is not safe for people or the environment to place the waste, which also contains semi-volatile compounds such as diesel fuel, that close to the surface over that wide of an area.

    The company and agency have agreed that Anchor's general contractor will remove uncontaminated dirt from underneath the landfill and use it to replace contaminated material under the proposed building sites. Nearly half of the Lowe's store would sit atop ground that must be replaced.

    The company must then install a clay-lined bowl, deposit the contaminants and cap them with the parking lot.

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Environment

    Indiana Government - More on video gambling

    Updating the Louisville Courier Journal's two-day series (Dec. 12 and 13) on video gambling (access ILB entry here) is this story today titled "State leaders take new look at illegal gambling devices." Some quotes:

    Indiana Gov.-elect Mitch Daniels said yesterday that the state must decide whether to enforce its laws against video gambling or legalize the thousands of devices that now operate openly in bars and restaurants.

    Daniels told reporters in Indianapolis he hasn't decided which option is better. But he added that the current situation — weak enforcement and widespread illegal gambling — is unacceptable. * * *

    In stories Sunday and Monday, The Courier-Journal documented widespread illegal video gambling in bars, truck stops, convenience stores and other establishments in both states.

    The newspaper found that thousands of slot-like gambling devices and video poker machines operate openly and illegally — allowing operators to rake in millions of dollars in untaxed profits. * * *

    "Which direction to move ... is something honest people can differ about," Daniels said.

    He has said repeatedly that the new administration will put "everything on the table" in trying to tackle a budget deficit of more than $600million, a figure that dropped $200 million on the basis of revenue estimates released yesterday.

    Legalizing, regulating and taxing gambling machines could generate as much as much as $382million for state and local governments, according to a study by the Indiana Licensed Beverage Association, which is lobbying for legalization.

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Indiana Government

    Indiana government - [Updated] More on Payne appointment to new Indiana Department of Child Services

    "Maverick judge to lead child welfare department: Appointment of juvenile court jurist starts breakup of FSSA" is the headline of this morning's story in the Indianapolis Star. Some quotes from the beginning of the long story:

    James W. Payne is a maverick judge who has ruled Marion County's juvenile justice system with an iron fist for 20 years. He's angered defense lawyers, taken heat for the number of children he has locked up and been reprimanded for doing a lawmaker a favor.

    That's partly why Gov.-elect Mitch Daniels picked Payne as the director of the new Indiana Department of Child Services. The move begins Daniels' transformation of the state's largest agency, the Family and Social Services Administration.

    Daniels said Tuesday he didn't want someone in charge of protecting Indiana's youngest who sat on a bench for 20 years "and never created a ripple."

    "We are people of change. We are going to hire people of experimentation. We will take some risks," Daniels said.

    FSSA still will run programs for the elderly, disabled and mentally ill, as well as Medicaid, which provides health care for needy Hoosiers. Daniels already has picked Mitch Roob to lead that agency.

    A short side-bar is titled "In court with Judge Payne."

    An AP story this morning explains:

    Gov.-elect Mitch Daniels announced the creation of the cabinet-level agency, to be called the Indiana Department of Child Services.

    He said Payne will report to him directly but also work with his appointee to head the Family and Social Services Administration, Edward Mitchell "Mitch" Roob Jr.

    "We'll be able to effect this reform on day one by executive order," said Daniels, who will be sworn in Jan. 10.

    Daniels made the social services administration a campaign issue, saying he would dismantle its current structure and make child protection a freestanding agency. The new department also will be responsible for collecting child support .

    See the ILB's updated organization chart reflecting the new appointment here.

    [Updated] This report from Jennifer Whitson of the Evansville Courier&Press includes these quotes:

    INDIANAPOLIS - Gov.-elect Mitch Daniels announced Tuesday he is going to issue an executive order to separate children services from the rest of the Indiana Family and Social Services Administration. * * *

    In August, the Indiana Supreme Court sent [Judge James] Payne a private letter of reprimand, according to published reports, because he opened court on a holiday in 2000 to give a lawmaker's daughter a hearing without prosecutors or defense attorneys present. [See this 8/10/04 ILB entry for details]

    [Rep. Dennis Avery, D-Evansville] said Payne worked against legislation Avery carried last session that opened up the records of children who died while under state supervision.

    Supporters of the change said opening the files, which could include records on how often caseworkers visited a child or how well they followed up on abuse complaints, would improve accountability and improve the system. Any record released under the new law must go through a juvenile court judge to protect the privacy of other children who might be mentioned in the reports.

    Avery said Payne lobbied against the bill and has since blacked out much of the information in the files he has released. But when asked about openness in Indiana's child protective services Tuesday, Payne said the more oversight the better.

    "If we don't open this up so that the public ... knows what are the good things that are going on and point out the things that are not going well, we don't change," Payne said.

    Posted by Marcia Oddi on Wednesday, December 15, 2004
    Posted to Indiana Government

    Tuesday, December 14, 2004

    Indiana Government - Judge Payne expected to take over child welfare system

    "Judge expected to take over child welfare system" is the headline to this story this afternoon on the Indianapolis Star website. Some quotes:

    Marion County Juvenile Court Judge James Payne said in an email to his staff that he will be named the new Director of the Indiana Department of Child Services, previously known as the Division of Family Services.

    Gov.-elect Mitch Daniels is expected to make the announcement this afternoon at a 2 p.m. news conference. * * *

    Payne is serving his fourth six-year term as judge of the Marion County juvenile court. Daniels will have to appoint a replacement to fill the remainder of Payne's judicial term.

    [More] This announcement was released in mid-afternoon via the Daniels' transition website:
    Mitch Daniels Announces Fundamental Breakup of FSSA: Nationally Renowned Child Advocate Named Director of Dept. of Child Services

    INDIANAPOLIS - Today Governor-elect Mitch Daniels addressed two major problems in Indiana and fulfilled two campaign reform pledges by announcing plans to move Child Protection Services and the Child Support Bureau from the Family and Social Services Administration (FSSA) into a freestanding cabinet level agency, reporting directly to the Governor.

    According to the federal Office of Child Support Enforcement, Indiana ranks 43rd in the country in collection of child support - collecting only about half the dollars owed. In the area of child protection, a report quoted over the weekend by the Northwest Indiana Times showed Indiana ranked high in the number of substantiated cases of child mistreatment, neglect, and abuse. Many media reports in recent years have also documented cases where the current system has failed to protect children.

    "Kids who need the state's protection must have it, without exception, and kids who are entitled to financial support must receive it, every dollar," said Governor-elect Daniels. "We said we would reform government to attack Indiana's failures in this area and we will."

    The Governor-elect named Marion County Juvenile Court Judge James W. Payne as Director of the new Indiana Department of Child Services.

    "Leadership in this area is even more important than structure," said Governor-elect Daniels. "Judge Jim Payne is the best person, period, for these twin tasks to which I attach maximum importance."

    Judge Payne, 58, has 20 years experience on the bench of the Marion County Juvenile Court. In this capacity, Judge Payne developed innovative programs to support troubled youth and families while stressing personal responsibility. Judge Payne's work has been nationally recognized and he has lectured in 47 states about youth and family issues. Payne also serves as a reviewer of the Children and Family Service Reviews on behalf of the federal government.

    "I am excited about the possibility for change in our state in improving the way government responds to the crisis of children and families in our communities," said Judge Payne. "Mitch speaks frequently about the importance of young people in our future and I am honored he charged me with ensuring that our children enjoy the greatest opportunity to realize their full potential."

    During Judge Payne's term, the Juvenile Court in Marion County has been selected as a Model Court Site for abuse and neglect cases and one of the few courts in the nation currently serving as a Juvenile Re-entry Court through a Federal grant. He has also created and implemented new juvenile facilities and programs such as: new Marion County Juvenile Justice Center, community based probation units, Runaway unit, Youth Center, New Directions Academy (an alternative discipline school), home detention and monitoring system, parental participation program, and various community clean up programs.

    Updated Organization Chart. Check here for a newly updated organization chart.

    [Update 4:00 pm] The AP is now reporting here that:

    The new agency will not technically become its own cabinet-level department until it is appropriated funding in a new state budget, but Payne said he would immediately set about the task of reforming the state's efforts to protect children and ensure they receive support from absent parents.

    "Everything is on the table," Payne said during a Daniels news conference at a daycare center in downtown Indianapolis.

    Daniels said Payne and Mitchell Roob Jr., the governor-elect's appointee to direct FSSA, would work together separating the child support and protection aspects from the larger agency into the new one.

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to Indiana Government

    Indiana Decisions - 2 from Court of Appeals, 2 from Tax Court

    Foster R. Milligan v. State of Indiana (12/14/04 IndCtApp) [Criminal Law & Procedure]
    Crone, Judge

    * * * Milligan presents one issue for our review, which we restate as whether his sentence violates the Sixth Amendment. * * *

    Milligan contends that the sentence imposed by the trial court violates the Sixth Amendment, under the rule announced in Blakely v. Washington, to have the facts supporting the enhancement of a sentence “beyond the statutory maximum” tried to a jury or admitted by the defendant. In response, the State maintains that Milligan waived this argument because he failed to object at the sentencing hearing that he had a right to have a jury determine all facts legally essential to his sentence. * * *

    A panel of this court recently addressed a similar waiver argument by the State and explained why the defendant has not waived his argument: * * * Strong v. State, (Ind. Ct. App. Nov. 5, 2004) [Access ILB entry here, 3rd case]. Accordingly, we find no waiver. * * *

    [B]ecause Milligan’s sentence was enhanced based on aggravating factors that were not admitted by him or found by a jury, we are constrained by Blakely and must vacate his sentence and remand for further proceedings consistent with this opinion. Remanded.
    RILEY, J., and VAIDIK, J., concur.

    Kenna D. Ryle v. State of Indiana (12/14/04 IndCtApp) [Criminal Law & Procedure]
    Najam, Judge
    In March 2003, the State charged Kenna Ryle with Murder. A jury found him guilty of the lesser-included offense of Voluntary Manslaughter, a Class A felony. The trial court entered judgment of conviction and sentenced him to an enhanced term of forty-five years. Ryle now appeals and presents the following issue for review: whether the trial court improperly imposed an enhanced sentence under Blakely v. Washington. We affirm. * * *

    As we have noted, the fact of a prior conviction is an exception to Blakely. And this court has held that where an enhanced sentence is based upon a defendant’s prior criminal history and aggravators derived from that history, the Blakely analysis is not implicated. See Bledsoe v. State, 815 N.E.2d 507, 508 (Ind. Ct. App. 2004); Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004). But Ryle maintains that (1) the fact that he was on probation when he committed the instant offense is not derivative of his criminal history; and (2) his juvenile adjudications are not “prior convictions” under the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Accordingly, Ryle maintains that both his probation status and his juvenile adjudications are facts the jury had to find beyond a reasonable doubt under Blakely. We disagree. * * *

    Ryle’s statements during the sentencing hearing, and his failure to object to the information contained in the presentence report, amount to an admission that he was on probation at the time he committed the instant offense. Thus, the trial court’s reliance on Ryle’s probationary status to enhance his sentence does not implicate Blakely.

    Since Apprendi, courts have split regarding whether juvenile adjudications qualify as “prior convictions” for purposes of the Apprendi exception. Ryle directs us to the Ninth Circuit Court of Appeals’ decision in United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001), which held that juvenile adjudications that do not afford the right to a jury trial and require a beyond-a-reasonable doubt burden of proof do not fit within Apprendi’s exception for prior convictions. But at least three jurisdictions have disagreed with the holding in Tighe. * * *

    We now join those courts which disagree with the holding of the Ninth Circuit in Tighe and conclude that juvenile adjudications are “prior convictions” under Apprendi. Thus, the trial court in this case did not violate Ryle’s constitutional rights when it identified Ryle’s criminal history as an aggravating factor and included in that criminal history Ryle’s four juvenile adjudications.

    In sum, the two aggravators identified by the trial court, namely, Ryle’s criminal history, which includes juvenile adjudications, and the fact that he was on probation at the time he committed the instant offense are both proper under Blakely. We therefore hold that Ryle’s enhanced sentence of forty-five years does not violate his Sixth Amendment rights. Affirmed.
    BARNES, J., concurs.
    SULLIVAN, J., concurs with separate opinion.
    I concur but write separately with respect to the matter of Ryle’s probation status vis-à-vis Blakely v. Washington.

    I agree, as determined by the majority, that Ryle effectively admitted that he was on probation at the time he committed the voluntary manslaughter for which he was here convicted. Were it not for this admission, I could not agree that, upon the authority of Bledsoe v. State, 815 N.E.2d 507 (Ind. Ct. App. 2004), trans. pending, the fact of being on probation does not implicate Blakely. As suggested in Teeters v. State, 817 N.E.2d 275 (Ind. Ct. App. 2004), trans.pending, the fact of a defendant being on probation might well be a matter outside the confines of the documents setting forth the defendant’s prior criminal record. If so, and if the probation status has not been admitted by defendant, the fact of probation would seem to be a matter of fact necessary for the jury to determine.
    We reject the State’s arguments that (1) Ryle has waived his Blakely challenge, and (2) Blakely does not implicate Indiana’s sentencing scheme, for the reasons set forth in Strong v. State, 2004 WL 2481190 (Ind. Ct. App. November 5, 2004).

    Graham Creek Farms v. Indiana Department of State Revenue (12/13/04 IndTaxCt) [Sales and Use Tax]
    Fisher, J.
    Graham Creek Farms (Graham) challenges the final determination of the Indiana Department of State Revenue (Department) denying its claim for refund of sales and use tax paid for the 1993, 1994, and 1995 tax years (years at issue). The issue for the Court to decide is whether Graham is entitled to several sales and use tax exemptions for certain items purchased for use in its farming operation. * * * [Fact specific]

    For the aforementioned reasons, the Court AFFIRMS in part, and REVERSES and REMANDS in part, the Department’s final determination. On remand, the Department is ordered to refund the amount of sales and use tax Graham paid for the years at issue, plus any penalties and interest related thereto, consistent with this opinion.

    Morton Buildings, Inc. v. Indiana Department of State Revenue (12/13/04 IndTaxCt) [Use Tax]
    Fisher, J.
    Morton Buildings, Inc. (Morton) appeals the final determination of the Indiana Department of State Revenue (Department) denying its claim for refund of use taxes it paid from January 1, 1993 through September 30, 1998 (the period at issue). The issue for this Court to decide is whether the raw materials Morton purchased and used out of state to make building components, that were eventually assembled into prefabricated buildings in Indiana, are subject to Indiana use tax. * * *

    Conclusion. The raw materials Morton purchased at retail were consumed in the out-of-state production process and, therefore, never used in Indiana. Furthermore, the materials that were used in Indiana—the building components—were not acquired at retail but were instead fabricated by Morton. Accordingly, Indiana Code § 6-2.5-3-2 does not apply and Morton is not subject to the use tax. The Department’s final determination is, therefore, REVERSED and the Department is ordered to refund Morton the use taxes paid during the period at issue.

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts one

    Pierson, Robert J. v. Hartley, William (ND Ind., Robert L. Miller, Jr., Chief Judge)

    Before POSNER, KANNE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Robert J. Pierson, an inmate of
    the Indiana State Prison, was assaulted by fellow inmate
    Jeremy Wilkinson while he slept. Wilkinson beat Pierson
    with brass locks stuffed in a sock, gashing his head and
    knees and crushing his left testicle. The attack required
    surgical removal of Pierson’s damaged testicle and kept him
    a month in the prison hospital. Pierson sued prison officers
    and officials under 42 U.S.C. § 1983, alleging that they knew
    of and ignored a serious risk to his safety. A jury found for
    Pierson against two of the officers and awarded damages,
    but the district court vacated the jury verdict and entered
    judgment as a matter of law for the defendants. Because the
    court directed judgment against Pierson, we construe the
    facts in the light most favorable to him. * * *

    Whether the defendants knew that
    Wilkinson posed a specific risk to Pierson—rather than all
    the members of “E” dorm—is unimportant; for in order
    to establish a constitutional violation, it does not matter
    “whether a prisoner faces an excessive risk of attack for
    reasons personal to him or because all prisoners in his
    situation face such a risk.” Haley, 86 F.3d at 643 n.33;
    Billman v. Indiana Dept. of Corr., 56 F.3d 785, 788 (7th Cir.

    The jury could have also found that MacMillan and Wood,
    knowing that Wilkinson posed a substantial risk of harm,
    disregarded that risk, first by assigning Wilkinson to the
    dorm and then by allowing him to remain following his
    weapons conviction. Although MacMillan and Wood denied
    any role in Wilkinson’s assignment, Pierson was allowed to
    testify to the contents of a prison report that, according to
    him, included a statement that both MacMillan and Wood
    made the decision to place Wilkinson in the dorm. Further,
    as the supervisor and case manager for “E” dorm, MacMillan
    and Wood would have been involved in any decision to
    transfer Wilkinson. But Wilkinson inexplicably was allowed
    to stay on in the dormitory after his weapons conviction;
    even MacMillan testified that it was unusual for a prisoner
    to remain following that kind of violation. Such inaction in
    the face of a substantial risk is sufficient to demonstrate
    deliberate indifference under the Eighth Amendment. See
    Case, 301 F.3d at 607; Billman, 56 F.3d at 788.

    The judgment of the district court is reversed and the
    case remanded with instructions to reinstate the jury’s

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Sonitrol owes $1 million to murder victim's child

    "Sonitrol owes $1 million to murder victim's child" is the headline to this story today in the Muncie StarPress. Some quotes:

    MUNCIE - Sonitrol Security Systems of Muncie was partly responsible for the death of Michael Young, a 33-year-old liquor store clerk who was murdered in 1997, a Delaware Circuit Court 1 jury has ruled.

    The seven-member jury decided Young's child, Darian, now 10, was entitled to recover $1 million in damages from the local Sonitrol franchise.

    "The alarm company essentially failed to send help when help was needed," said James Fisher, an Indianapolis attorney representing Young's mother, Ruby, and brother, Monty. * * *

    Normally, the liquor store closed at midnight, at which time Young, working alone, would activate the burglar alarm. If he or another employee failed to activate the burglar alarm, Sonitrol would call the store within a half hour. If no one answered, Sonitrol would immediately call the liquor store's general manager.

    On the night in question, Sonitrol didn't call the store's general manager until 3:15 a.m. to find out why the burglar alarm had not been armed at midnight.

    Here is an AP story on the decision.

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to Indiana Decisions

    Law - [Updated] Election standoff in Kentucky continues

    "Panel won't certify race for Senate: Members expect justices to decide residency dispute" is the headline to this story today in the Louisville Courier Journal.

    Earlier ILB entries on this issue were posted on 12/8/04, 12/3/04, and 11/25/04.

    Today's LCJ reports:

    The Kentucky Board of Elections refused yesterday to certify the election of Democrat Virginia Woodward to the state Senate, saying it didn't want to wade into a battle that it expects to end before the state Supreme Court.

    Rejecting the advice of the board's lawyer, who said it was required by law to certify the election, the three Republicans and three Democrats voted unanimously to table the matter.

    If that decision stands, it means that neither Woodward nor her Republican opponent, Dana Seum Stephenson, will have the certification needed to be sworn in as the 37th District senator when the General Assembly meets next month. The campaign was thrown into disarray on the day before the Nov.2 general election, when Woodward filed suit claiming that Stephenson didn't meet residency requirements.

    Stephenson got about a thousand more votes than Woodward, but three weeks after the election, a Jefferson Circuit judge ordered that Stephenson's votes not be counted.

    Stephenson admitted that she lived in Indiana during four of the six years before the election, and Judge Barry Willett ruled that she did not meet a constitutional requirement that she be a Kentucky resident for the six years prior to her election.

    Stephenson has, however, asked the Republican-controlled Senate to determine that she is the winner and seat her.

    [Updated 12/16/04] The LCJ is reporting today that:
    Democrat Virginia Woodward filed suit yesterday, asking a judge to end her battle with Dana Seum Stephenson for the 37th District seat in the state Senate.

    Woodward asked Franklin Circuit Court to force the state Board of Elections to certify her as the winner of last month's election and order Stephenson, a Republican, to drop her bid to win the seat.

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to General Law Related

    Indiana Decisions - Court flips 20-year-old conviction

    "Court flips 20-year-old conviction: No proof found that accused burglar was told his rights before pleading guilty" is the headline to this Niki Kelly story this morning in the Fort Wayne Journal Gazette. Some quotes:

    INDIANAPOLIS – More than 20 years after an Allen County man pleaded guilty to burglary, the Indiana Court of Appeals on Monday overturned the felony conviction of Gregory Charles Hall because he might not have been fully apprised of his rights.

    The trial court’s file contained no transcript of Hall’s 1983 guilty plea hearing or sentencing and no other documents exist that indicate Hall was advised of his rights against self-incrimination, to trial by jury and to confront his accusers. A court must also find that the plea was knowing and voluntary. * * *

    The court noted it was aware of the implications of the ruling, which could encourage defendants to plead guilty and wait several years in hopes that transcripts were destroyed or misplaced and that participants’ memories had faded.

    The justices found the state could avoid these situations by using the defense of laches, which involves the state proving it would be difficult if not impossible to retry the case. That defense was not raised in Hall’s case, the court ruling said.

    Appeals Court Judge Melissa May strongly dissented, saying Hall should have been required to prove his rights were violated before the conviction was overturned.

    The decision is Gregory Hall v. State of Indiana (12/13/04 IndCtApp). The majority opinion was writen by Judge Sullivan. Access yesterday's ILB summary here (3rd case).

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to Indiana Decisions

    Environment - Stories today

    "Proposed changes to Clark zoning codes now in limbo: They won't be passed this year, if ever," is the headline to this story today in the Louisville Courier Journal.

    "Massive sewer project coming: Federal, state mandates, disgruntled residents driving need," is the headline to this story dated Dec. 13 in the South Bend Tribune.

    "Stormwater runoff raises new development questions: Regulations are more stringent for water discharged in Great Lakes Basin," is the headline to this story today in the Munster Times.

    "Pines residents fight for safe water: Struggle with contamination highlights reliability of Great Lakes" is the headline to a second water story today in the Munster Times, both part of a series on Great Lakes water issues begun Sunday (scroll down for earlier stories). Some quotes:

    THE PINES | The water looked like iced tea and smelled like rotten eggs.

    In a scene fit for a movie, Gordon Tharp invited four environmental bureaucrats and an industry executive to drink tap water from the well on his property that they said was not contaminated. When they declined, Tharp's trap was sprung.

    "I don't understand why my water isn't good enough for you, but it's good enough for me," he said.

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to Environment

    Indiana Government - New role for Lt. Gov.-elect

    Lesley Stedman Weidenbener, writing for the Louisville Courier Journal, as a feature today titled: "Traditional role revised for Skillman: Daniels' lieutenant governor to guide legislative agenda." It begins:

    INDIANAPOLIS — At a small conference table surrounded by mismatched office chairs, Lt. Gov.-elect Becky Skillman is putting together the legislative agenda that will mark the first year of the incoming Republican administration.

    This is not the typical role of a lieutenant governor. Until now, the state's second in command has been charged by law with overseeing the state's economic development efforts — encouraging job creation and boosting business.

    But under Gov.-elect Mitch Daniels, the lieutenant governor's chief duty will be different. While Skillman retains oversight of the state's agricultural and community development offices, a quasi-government board [the IEDC, to be headed by Micky Mauer] will handle commerce activities.

    Skillman will oversee the administration's legislative agenda, which Daniels promises will be the most aggressive in decades. The team takes office Jan. 10.

    A side-bar to the story sets out the Daniels' legislative agenda:
    Jobs and economic growth: It will include proposals for business incentives and tax credits for job creation; creation of sites that have permits for development; expanded tax credits for business investment in research and development; and creation of regional venture capital firms that could provide funds for more rural investment.

    Education reform: It will include legislation to move ISTEP testing from fall to spring and a proposal to eliminate the superintendent of public instruction as an elected position. It likely will include plans to increase money available to charter schools and to simplify the state's school-funding formula. Funding for full-day kindergarten likely won't be included.

    Government reform: It likely will include proposals to restructure several state agencies, including making child protection services a separate agency and creating a Department of Economic Opportunity.

    Ethics/public integrity: It could include proposals to make former state employees wait one year after quitting to lobby state agencies; to ban all gifts to state employees; to change bidding laws to make contracts more open to the public; and to create an office of inspector general to serve as government watchdog.

    A Question. Not explained by the story is the precise role of Pat Miller. Check these still available stories from the 5/13/04 Fort Wayne Journal Gazette ("Miller in Daniels' designs: Cabinet post would be created") and the 5/13/04 Louisville Courier Journal ("Daniels to tap businesswoman for new cabinet post if elected").

    Posted by Marcia Oddi on Tuesday, December 14, 2004
    Posted to Indiana Government

    Monday, December 13, 2004

    Indiana Decisions - Three today from Court of Appeals

    Nancy E. Prewitt v. State of Indiana (12/13/04 IndCtApp) [Criminal Law & Procedure]
    Baker, Judge

    This case illustrates what happens when the State engages in a pattern of withholding exculpatory and material evidence from a defendant prior to trial. Appellant-defendant Nancy Prewitt raises a number of alleged errors following her conviction for the Murder of her husband, William Davies. In particular, Prewitt claims that the following errors occurred: (1) the State improperly withheld certain exculpatory evidence from Prewitt in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) statistical evidence regarding the probability that Davies committed suicide was improperly admitted into evidence; (3) blood spatter evidence was erroneously admitted; (4) a statement from a purported expert witness indicating that Prewitt’s claim that she never heard a gunshot appeared suspicious was improperly admitted; (5) Davies’s father’s testimony that his son would never have committed suicide was improperly admitted; (6) an autopsy photograph depicting Davies’s cracked skull was erroneously admitted into evidence because it was prejudicial and prevented Prewitt from receiving a fair trial; (7) that the evidence was insufficient; and, finally, (8) that she was improperly sentenced.

    Concluding that the State improperly withheld material information from Prewitt prior to trial in violation of Brady, we reverse the judgment of the trial court on that basis. However, while we find that the evidence presented by the State was sufficient to support Prewitt’s conviction, we also observe that other issues raised by Prewitt in this appeal cause us great concern in the event of a retrial. Specifically, we note that the admission of certain statistics into evidence amounted to harmless error in these circumstances, that Prewitt has waived her argument with respect to the blood spatter evidence, and that Dr. Kohr’s testimony as to his difficulty in believing that Prewitt would not have heard the gunshot was not improperly admitted. We further observe that Davies’s father’s testimony was properly admitted and that the autopsy photograph was properly admitted. Finally, we conclude that the State’s evidence was sufficient to support Prewitt’s conviction so as not to bar a retrial under double jeopardy principles. * * *

    Conclusion. In light of our discussion of the issues set forth above, we conclude that the State’s suppression and withholding of the Brady material from Prewitt before trial amounts to reversible error. We similarly note that Dr. Kohr’s testimony relating to the statistical probability that Davies committed suicide amounted—at most—to harmless error, that Prewitt has waived the argument that the testimony regarding blood spatter evidence was erroneously admitted and that Dr. Kohr properly testified that he had a difficult time believing that Prewitt would not have heard the gunshot under the circumstances. George Davies’s testimony was also properly admitted as to whether his son had the propensity to commit suicide, and the admission of the autopsy photograph into evidence was not error. Finally, we conclude that the State presented sufficient evidence to support Prewitt’s conviction, thus allowing a retrial by the State.
    Reversed and remanded.
    FRIEDLANDER, J., and ROBB, J., concur

    Northern Electric Company, Inc. v. Patrick Torma, Jr., et al (12/13/04 IndCtApp) [Trade Secrets]
    Riley, Judge
    Statement of the Case. Appellant-Plaintiff, Northern Electric Company, Inc. (Northern Electric), appeals the trial court’s Findings of Fact and Conclusions of Law in favor of Appellees-Defendants, Patrick L. Torma Jr. (Torma) and Hy-Tech Automation Repair, Inc. (Hy-Tech), with regard to Northern Electric’s Complaint, alleging a violation of the Indiana Trade Secret Act, statutory conversion, and breach of fiduciary duty. We reverse.

    Issues. Northern Electric raises seven issues on appeal, which we consolidate and restate into the following five issues:

  • Whether the trial court erred in concluding that an employee, assigned to repair servo motors, owns the data generated in the course of his duties and compiled in a useable format on his home computer;
  • Whether the trial court erred in determining that the compilation of data is not entitled to trade secret protection under the Indiana Uniform Trade Secret Act (IUTSA);
  • Whether the trial court erred in concluding that Torma did not commit statutory conversion within the meaning of the Victim’s Relief Act, Ind. Code § 34-24-3-1;
  • Whether the trial court erred in concluding that Torma did not breach his fiduciary duty to Northern Electric; and
  • Whether the trial court abused its discretion in awarding attorneys’ fees pursuant to I.C. § 34-52-1-1 based on the finding that Northern Electric failed to reasonably protect its trade secrets. * * *

    Conclusion. Based on the foregoing, we find that the trial court erred as a matter of law by concluding that (1) Torma, assigned to repair servo motors by Northern Electric, owns the data generated in the course of his duties and compiled in a useable format on his home computer; (2) the compilation of data is not entitled to trade secret protection under IUTSA; (3) Torma did not commit criminal conversion within the meaning of the Victim’s Relief Act, Ind. Code § 34-24-3-1; (4) Torma did not breach his fiduciary duty to Northern Electric; and (5) Torma is entitled to attorneys’ fees pursuant to I.C. § 34-52-1-1. Consequently, we reverse the trial court’s Findings of Fact and Conclusions of Law. Reversed.
    CRONE, J., and VAIDIK, J., concur.

  • Gregory Hall v. State of Indiana (12/13/04 IndCtApp) [Criminal Law & Procedure]
    Sullivan, Judge
    Appellant, Gregory Charles Hall, challenges the denial of his petition for post-conviction relief. Upon appeal, Hall claims that the trial court erred in denying his petition because there is no record of his having been advised of his rights under Boykin v. Alabama, 395 U.S. 238 (1969). We reverse and remand. * * *

    We therefore conclude that Hall was not required to prove that he was not advised of his Boykin rights. Instead, given precedent and the definition of “collateral” as used in Parke, we conclude that a post-conviction petitioner need establish only that the record or transcript of the petitioner’s guilty plea hearings are unavailable and that reconstruction of the record via the Appellate Rules is impossible. Here, it is uncontested that the record of Hall’s guilty plea hearing is not in existence. The State argues, and the post-conviction court found, that reconstruction of Hall’s record was not impossible. We are unable to agree. * * *

    We are not unaware of the implications of our holding. The current state of the case law would almost seem to encourage a defendant who pleaded guilty to wait several years after his plea hearing in hope that the transcript thereof will be destroyed or misplaced and that the participants’ memories will have faded. If so, he will be able to have his plea vacated and, if possible, be subject to a new trial. This, of course, could be avoided if the State pleaded and established the affirmative defense of laches—which for some reason was not done in the present case. We are also aware that Hall was sentenced in 1983 to a five-year suspended sentence with two years served on probation. It is therefore likely that the effect of our holding will be limited to some collateral result of Hall’s guilty plea and felony conviction, such as a subsequent habitual offender determination.

    The judgment of the post-conviction court is reversed and the cause is remanded with instructions to grant the petition for post-conviction relief, i.e. vacation of Hall’s guilty plea.
    VAIDIK, J., concurs.
    MAY, J., dissents with separate opinion.
    I would affirm the denial of Hall’s petition for post-conviction relief, and therefore I must respectfully dissent. * * *

    Reversal of Hall’s conviction on technical grounds at this late date comes at too high a cost to be justified simply by the absence of a transcript of his guilty plea hearing.

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts 2 today

    Bensky, David L. v. Powell, Colin L. (WD Wis.)

    Before FLAUM, Chief Judge, and CUDAHY and POSNER, Circuit Judges.
    POSNER, Circuit Judge. In 1964, David Bensky, a nativeborn
    citizen of the United States, became a citizen of Israel
    and enlisted in the Israeli army. The day before enlisting he
    went to the American embassy in Tel Aviv and signed an
    Oath of Renuncation of Nationality of the United States. The
    consular officer before whom Bensky signed the oath
    executed a Certificate of Loss of Nationality of the United
    States, certifying that Bensky had lost his U.S. citizenship by
    virtue of his renunciation oath. * * *

    Bensky’s suit must fail even apart from laches, because the
    appeal he filed in 1985 with the State Department’s Board of
    Appellate Review was unquestionably a claim within the
    meaning of the unamended section 1501, and so its denial
    by the Board started the five-year statute of limitations
    running almost 20 years ago. Indeed, his appeal to the
    Board of Appellate Review was a claim to all the rights and
    privileges of U.S. citizenship, since it sought a restoration of
    that citizenship.

    TE-TA-MA Truth Found v. World Church Creator (ND Ill.)
    Before BAUER, MANION, and KANNE, Circuit Judges.
    KANNE, Circuit Judge. TE-TA-MA Truth Foundation-
    Family of URI, Inc. (“the Foundation”) sued the World Church
    of the Creator (“the World Church”), alleging, among other
    things, trademark infringement in violation of the Lanham
    Act, 15 U.S.C. §§ 1051 et seq. The district court granted
    summary judgment in the World Church’s favor, and the
    Foundation appealed. We reversed the judgment of the
    district court and remanded with instructions to enter an
    appropriate judgment in favor of the Foundation. TE-TA-MA
    Truth Foundation-Family of Uri, Inc. v. World Church of
    the Creator
    , 297 F.3d 662 (7th Cir. 2002) (hereinafter
    Foundation I). Following entry of judgment in its favor, the
    Foundation moved for an award of attorneys’ fees pursuant
    to 15 U.S.C. § 1117(a), which allows a court to award reasonable
    attorneys’ fees to the prevailing party if the case is
    “exceptional.” The district court denied the Foundation’s
    motion because the Foundation had not shown willful infringement
    on the World Church’s part. Because we find this
    case exceptional, we reverse the judgment of the district
    court and remand for further proceedings consistent with
    this opinion. * * *

    III. Conclusion
    In sum, we conclude that the district court erroneously
    interpreted the scope and meaning of § 1117(a) with respect
    to whether a prevailing plaintiff must show willful infringement
    before the case may be declared exceptional and fees
    awarded. Because of the World Church’s oppressive litigation
    conduct, this case qualifies as exceptional under the
    proper interpretation of § 1117(a). We therefore REVERSE
    the judgment of the district court and REMAND the matter for
    further proceedings consistent with this opinion.

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to Indiana Decisions

    Environment - Supreme Court Limits Pollution Cleanup Lawsuits

    The U.S. Supreme Court today ruled in the case of Cooper Industries, Inc. v. Aviall Services, Inc. As reported by the AP:

    The Supreme Court on Monday put restrictions on companies that want to voluntarily clean up their polluted land and sue former owners to share the costs.

    The court ruled 7-2 against a company that in 1981 bought land in Texas that had been used for aircraft engine maintenance businesses and then went to court to recover some of the $5 million it spent cleaning up pollution there.

    The justices said the company improperly tried to use the Superfund law to sue because the government had not demanded that the cleanup be done.

    However, the court left open the possibility that another part of the Superfund law could permit such lawsuits.

    See the Oct. 7, 2004 Indiana Law Blog entry here for more information.

    The decision is not yet available on Findlaw.com, but should be soon, at this link.

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to Environment

    Environment - More on Great Lakes issues

    The Munster Times has a second major story today on the Great Lakes. Yesterday's story, headlined "The Great Divide: Battle line drawn in water wars - Region growth crossing into areas where Lake Michigan water forbidden," was the subject of an entry yesterday (access here or scroll down).

    Today's story is titled "Indiana towns shut out while Chicago suburbs flourish" and subtitled "WATER SUPPLY: Critics say great divide is arbitrary, unfair and hampers development." A quote:

    What's remarkable about Lowell's water problem is the tiny town has become the focal point for interstate and international disagreements over managing the entire Great Lakes system.

    It's the only place ever denied Lake Michigan water under federal law -- even though it would have used in a year about a third the water Chicago takes each day from the lake.

    Who gets to use Great Lakes water is expected to become a battleground question of the next century. For places such as Lowell and others in a region bisected by the Great Lakes divide, it's a question of fairness.

    A side-bar to the story provides "Great Lakes water use facts."

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to Environment

    Environment - Bush taps EPA chief as health secretary

    The AP is reporting:

    President Bush chose Environmental Protection Agency chief Michael Leavitt on Monday to be secretary of the Department of Health and Human Services, filling one of the last two openings in his second term Cabinet.

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to Environment

    Law - Illinois "Ethics Police" still in start-up mode

    An AP story today in the Evansville Courier&Press reports:

    SPRINGFIELD, Ill. - A year after Gov. Rod Blagojevich signed legislation to crack down on misconduct in state government, most of the new ethics police are still getting organized and can provide little detail about their work.

    Some of the new inspectors general have only just started looking into allegations of misconduct, and none has referred a single case to two review commissions that can decide punishment. * * *

    The governor's investigator, whose office predates the new ethics law, appears to be the busiest.

    A progress report issued Thursday showed the office had received 1,781 complaints and resolved 550 cases since May 2003. Eighty-five complaints resulted in recommendations for disciplinary action or policy changes, but the 10-page report doesn't offer details about the cases. * * *

    On the legislative side, the four leaders of the General Assembly created rules that require the inspector general to ask the commission for approval even to begin an investigation.

    An earlier story from the Dec. 10, 2004 Chicago Tribune is headlined "Ethics law gets praise-- vaguely: Inspector offers no details on cases."

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to General Law Related

    Indiana Government - GOP eyes school funding changes

    "GOP eyes school funding changes: Allocations would be based on need" is the headline to this AP story today in the Louisville Courier Journal. Some quotes from the beginning of the story:

    INDIANAPOLIS — Republicans are considering changes to the way Indiana divides billions of dollars among schools. Options include scrapping the practice of ensuring that all districts — even those losing students — get more money.

    But efforts to overhaul the school-funding formula could fall victim to a lack of money and to resistance from Democrats, influential school and teacher lobbying groups and school corporations with declining enrollments.

    "We're very worried about it," said Pat Pritchett, superintendent of Indianapolis Public Schools, the state's largest school corporation. "We know the formula's going to change. We just don't know how."

    Sen. Luke Kenley, R-Noblesville, who will play a key role in developing the next formula, has pledged to pursue a system he said would tie funding more closely to the number and needs of individual students in each district.

    He said Gov.-elect Mitch Daniels has expressed interest in the plan because it would make school funding simpler. Jeff Espich, the new House Ways and Means chairman, also is open to the idea. "I haven't bought into everything, but I certainly believe that the money has to follow the child," said Espich, R-Uniondale.

    Democrats and Republicans have long clashed over funding differences between poor, urban districts that are losing students and growing, suburban districts that often have wealthier property-tax bases. The urban schools are primarily in Democratic districts, the suburban ones in Republican districts.

    For years, largely at the insistence of Democrats, the funding formula has included a "minimum guarantee" that ensures all districts get an increase in base funding.

    Kenley and some other Republicans said the minimum guarantee slows efforts to close the funding gap on a per-student basis between schools. They say so much money is needed to ensure that even schools with stagnant or declining enrollments get increases that there is not enough left to adequately fund growing districts.

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to Indiana Government

    Indiana Government - Courier Journal series on video gambling

    The Louisville Courier Journal has a two-day series, yesterday and today, on video gambling in Kentucky and Indiana. Here are links to the stories:

  • Video gambling is thriving in the open, outside the law - Lead story, Sun. 12/12/4.

  • Addiction: Gambling's lure can wreck lives - Second chances come at great cost - here

  • Enforcement: Inconsistent efforts fail to halt gaming - Authorities cite investigation hindrances, need to target more serious crimes - here

  • Store's case shows lack of uniform enforcement - here

  • Two states, two decisions: Legalize games, ban them - Oregon's video machines legal, profitable; South Carolina ends 14 'unregulated' years - Lead story, Mon. 12/13/04

  • Graphic of legalized video gambling projections - here

  • Manufacturer tests law with collector-card vending game - here

  • VIDEO GAMBLING LEGALIZATION: Cash-strapped Indiana considers move - Tax revenue could be boon for state - here

  • Graphic of what other states have done - here

  • Authorities' Battle: Strong laws, tough stances needed to shutdown machines - here
  • Some quotes from the introduction to "Cash-strapped Indiana considers move" story, listed above:
    INDIANAPOLIS — When it convenes in January, the Indiana General Assembly will again be confronted with legislation intended to legalize thousands of video gambling machines in bars, restaurants and private clubs.

    And the bill could get a better reception this time, though its chances for passage remain uncertain.

    Legalizing and taxing the devices, which now operate openly in many bars and fraternal clubs, could produce hundreds of millions of dollars in revenue for a state that is facing a crushing budget deficit — roughly $800 million this year.

    And the newly appointed chairman of the influential Senate Appropriations Committee, Republican Bob Meeks of LaGrange, is a longtime supporter of the concept.

    "(Gambling machines) ought to be out in the light — regulated, controlled and taxed," said Meeks, who has introduced legislation to legalize them at least four times. "We're not making any state income on these machines, but they're out there now."

    Still, there are plenty of opponents, and in past sessions the issue has not moved beyond the discussion stage.

    [More.] The Indianapolis Star this morning has this featured letter to the editor titled: "Pull tabs offer hope to horse-racing industry."

    Posted by Marcia Oddi on Monday, December 13, 2004
    Posted to Indiana Government

    Sunday, December 12, 2004

    Environment - Two important stories today

    Great Lakes. "The Great Divide: Battle line drawn in water wars - Region growth crossing into areas where Lake Michigan water forbidden," is the headline to this story today by Brendan O'Shaughnessy in the Munster Times. Some quotes from this lengthy story:

    INDIANAPOLIS | There is a line, an invisible divider, that cuts through the heart of the Calumet region. On one side sits the area's greatest natural asset, which provides almost unlimited access to about 90 percent of the country's fresh surface water supply. On the other side, in some spots in view of Lake Michigan, are those who can't touch the region's "blue gold."

    As with the Greek mythic figure Tantalus, the water may always be out of reach for some. In an increasingly thirsty world, the line can mean more than just clean, cheap public drinking water. It can determine economic development and sprawl, as the region's population shifts year by year to the wrong side of the great divide.

    "It's not going to be easy to get water if you're below the line," said Jeff Edstrom, a Chicago environmental consultant who is working on a new region water study. "A place like Lowell can see the water -- but never get it."

    Like oil before it, fresh water is expected to become a hot commodity this century. Outlandish plans to divert lake water to arid regions -- such as a pipeline to the Southwest or ship tankers headed for Asia -- have some government officials and environmentalists on edge and have prompted a new international agreement that will have far-reaching effects, including in Indiana.

    Governors from the Great Lakes states took public comments this fall on a draft framework for managing the lakes, including conservation and clear guidelines for withdrawals. The controversial plan, known as Annex 2001, could be signed by the governors in spring 2005 and sent to Congress and state legislatures after that. Annex 2001 would set in stone practices for limiting use of Great Lakes water to those inside its watershed basin, which is the boundary separating the direction water flows.

    In the Calumet region, the basin line runs a jagged path that can shift over time. Like a minicontinental divide, rain falling on the northern side of this line eventually drains into Lake Michigan. On the southern side, rain drains into the Kankakee River Basin to the Mississippi River and into the Gulf of Mexico. This water is lost to the vast underground aquifers that provide up to 40 percent of the lake's annual resupply.

    Growing communities in the south end of Lake and Porter counties draw from abundant but not infinite supplies of groundwater, which can be more costly, unreliable and unhealthy than lake water.

    Ironically, projections show Northwest Indiana expects to use less of its abundant lake water supply; the need for groundwater will grow in the region's south-county areas.

    "I'm not sure if it's the holy grail, but Lake Michigan is the top choice for water here," said Randy Moore, manager of Indiana American Water's Northwest operations, which provide most of the region's public supply. "It's by far the cleanest in this area, so it doesn't require the same level of treatment as groundwater."

    More on the Great Lakes plan can be found in this ILB entry from Nov. 21st, quoting from an LA Times story (that unfortunately is no longer freely available).

    [Update 12/13/04] The Fort Wayne Journal Gazette has this editorial today on "Protecting the Great Lakes."

    Sewage Treatment in Floyd County. The Louisville Courier-Journal has a report today titled "Changes offered to Floyd ordinance: Easing of sewer rules suggested." Some quotes:

    A committee reviewing Floyd County's ordinance guiding subdivision development has recommended easing some of the requirements for the use of sewer systems and increasing the local regulation of runoff from subdivisions. * * *

    The Plan Commission created the committee to review the subdivision ordinance, which was enacted Jan. 1, and to consider a number of changes proposed by citizens' groups and developers soon after it became law.

    The committee recommendations include:

  • Making it optional for developers to connect new subdivisions to municipal sewer systems if they are within one-third of a mile of the development. The language in the ordinance now requires such connections.

  • Eliminating language in the ordinance that requires developers to provide easements for sewer-system connections if there is a plan to build a public system in the area within 10 years.

  • Requiring protective buffers of trees and other landscaping between all truck docks and public streets.

  • Making homeowners associations, rather than the county, responsible for the maintenance of dams and replacement of roads lost because of dam failures in subdivisions.

  • Requiring the Plan Commission to investigate complaints about runoff from subdivisions under construction within 10 days and requiring developers to solve such complaints quickly.

    Panel president concerned. Plan Commission President Paul Riggs said he is concerned about some of the recommendations, particularly those that weaken language encouraging the connection of new subdivisions to sewers.

    Riggs said he realizes sewer construction is an important issue in the county, with many residents who now use septic systems concerned they might be forced to connect to sewers. But the county's comprehensive plan encourages sewer use, Riggs said, and recommended changes to the subdivision ordinance that aren't in line with the comprehensive plan may not be approved. * * *

    Brian Zipperle, a resident of the Greenville area and a member of the committee, said he hopes the recommendations will be adopted quickly. One of his concerns — and a major concern of many of his neighbors — wasn't addressed by the committee, Zipperle said. That concern is about standards for the operation of new sewage-treatment plants.

    One issue sidestepped. Many residents wanted high performance standards — requiring the best treatment technology available — to be required in the ordinance. Some developers and engineers argued, however, that local standards shouldn't be set higher than the standard technology approved by the Indiana Department of Environmental Management.

    The committee decided not to take on that tough issue, Zipperle said, because a lawsuit had been pending that involved the Plan Commission and a development company. Since then the litigation has been withdrawn, Zipperle said. So he plans to bring the issue up at the public hearing that will be held on the recommendations.

  • Posted by Marcia Oddi on Sunday, December 12, 2004
    Posted to Environment

    Indiana Government - Campaign contributions by Daniels' appointees

    The Fort Wayne Journal Gazette reports the following today in its "Political Notebook" (2nd item):

    A brief review of campaign finance records finds that at least nine of Gov.-elect Mitch Daniels’ appointments so far gave a collective $41,000 to Daniels’ warchest. Several others gave nothing.

    The largest chunk of that amount was $18,000 donated by Michael Maurer, who was named president of the Indiana Economic Development Corp. Maurer will serve for $1 a year.

    Edward Mitchell Roob Jr., new Family and Social Services Administration director gave $10,000 and chief of staff Harry Gonso gave $8,000.

    To put the cash in perspective, Daniels and opponent Gov. Joe Kernan raised more than $31 million.

    “These appointees are going to give a lot more to the state than they ever did to the campaign,” Daniels’ spokesman Marc Lotter said.

    You can download a comma-delimited file of 2004 Governor's Contribution Data (1/1/04 - 10/31/04), suitable for dumping into Excel, from the state Indiana Campaign Finance site.

    Posted by Marcia Oddi on Sunday, December 12, 2004
    Posted to Indiana Government

    Indiana Law - Truck plates to be an issue in upcoming session

    As this story by Niki Kelly writing in the Fort Wayne Journal Gazette makes clear today, more is involved that just the seat-belt requirement. The story is headlined "Truck-plate fight looms for seat belts: County taxes at stake with loophole closure." Some quotes:

    INDIANAPOLIS – More than 1.3 million vehicles on Indiana’s roads are exempted from the state’s mandatory seat-belt law because they are registered as trucks and bear Indiana’s blue and white truck license plates. But more than safety is at stake.

    Because the state doesn’t count vehicles registered as trucks in the local road and street formula used to distribute tax money for road construction and repair, those vehicles are costing their counties precious dollars. Last year, more than $77 million was doled out to local units of government based on 3.5 million passenger vehicles – or about $22 a car.

    Leaving vehicles plated as trucks out of the calculation hasn’t been logical since they moved from farm vehicles to popular everyday transportation. But the formula has remained because of a bitter debate about shifting money from urban centers to more rural counties.

    The shift occurs because the same pot of money for road repairs would be redistributed. While every county would have more vehicles to be counted, rural counties would gain because they have more trucks that are currently not counted. * * *

    The two issues might come together this legislative session as bills have been filed in the Senate to both close the seat-belt loophole for trucks – requiring front-seat occupants of all vehicles to be strapped in – as well as recognize trucks in the local road and street distribution formula.

    “If they acknowledge for purposes of the seat-belt law that pickups are passenger vehicles there’s no reason to continue to refuse to acknowledge that they are passenger vehicles for the purpose of the road and street formula,” said Bob Kraft, director of state government relations for the Indiana Farm Bureau. * * *

    Lawmakers always intended a seat-belt exemption for pickup trucks but never imagined that other vehicles could also buy truck plates and be excused from seat-belt rules.

    That’s exactly what happened in 2003 when the Indiana Court of Appeals in a case from Noble County, ruled that front-seat adult passengers in vehicles with truck plates – whether a Dodge Durango or a Mercury Mountaineer – are exempt from buckling up.

    The case was appealed to the Indiana Supreme Court but the justices declined to review the ruling, leaving a gaping hole in Indiana’s statute. Only one other state – Georgia – has a similar law.

    Sen. Tom Wyss, R-Fort Wayne, tried to close that hole last year in a bill that made it through the Senate but stalled in a House committee that refused to take a vote on the legislation. * * *

    According to an analysis by the Legislative Services Agency, 15 counties would lose money if the local road and street formula included trucks while 77 would gain dollars in the redistribution. But it is the more metropolitan – and sometimes more politically affluent – counties that would be hurt.

    For instance, Allen County would lose more than $330,000; Lake County would lose $631,000 and Marion County would lose more than $1.1 million. Locally, Wabash County has the most to gain – $43,800 – because more than 26 percent of the county’s vehicles are registered as trucks. “From an equitable standpoint it makes no sense,” [the Farm Bureau's] Kraft said.

    But the bill has been “borsted” for decades in the Senate because it would hurt Marion and Johnson counties, two counties represented by former Senate Finance Chairman Larry Borst. Borst was defeated in the primary, and Kraft said he hopes that means the bill filed by Weatherwax at least receives a hearing.

    Wyss believes it would be “horrible” to bring the two issues together because one is about money and the other is about saving lives. And he also knows that any bill containing the formula change will be even harder to pass. “When you get into that, it’s a geographic fight. Just like on the federal level – where Indiana wants a larger percentage of the tax money – then someone gets a smaller percentage. It’s the same fight.”

    This ILB entry from Feb. 17, 2004 reports on the effort during the 2004 session to move a bill out of House committee which would have removed the pickup exemption from Indiana's seat belt law. The effort failed, as reported
    in this entry the next day, Feb. 18th.

    Here is the Indiana Law Blog's October 5, 2003 entry on the Indiana Court of Appeals ruling that the seat belt law does not apply to vehicles with truck plates, including SUVs. The decision, Owens v. State (9/30/03 IndCtApp), was denied transfer by the Supreme Court.

    Posted by Marcia Oddi on Sunday, December 12, 2004
    Posted to Indiana Law

    Law - Washington Post questions historic fa�ade easements

    The Washington Post has a front-page Sunday story today, part 1 of 2, titled: "RICH WITH HISTORY: Preservation Creates Tax Windfall - Loophole Pays Off On Upscale Buildings." Some quotes from a very long story:

    After closing on the house, the Weisses signed papers promising that they would not alter its outward appearance without first obtaining permission. They "donated" that pledge, known as a historic facade easement, to a nonprofit preservation trust. That allowed the Weisses to seek a federal income tax write-off for the estimated cash value of the gift.

    Easement donors in D.C. usually write off about 11 percent of the value of their homes. That means owners of a $1.5 million mansion can claim tax breaks of $165,000 or more.

    Such tax deductions are increasingly common although the District already bars unapproved and historically inaccurate changes in the facades of homes in the city's many historic districts. As a result, easement donors largely are agreeing not to change something that they cannot change anyway.

    "It really is money from the taxpayer for nothing," said lawyer John D. Echeverria, director of the Georgetown Environmental Law and Policy Institute. "People are absolutely delighted -- and astounded -- that the federal government would send them $50,000 and more for doing nothing."

    The Weisses are among hundreds of affluent Washingtonians who have taken part in the once obscure but rapidly growing program, created by Congress 28 years ago with the goal of preventing developers from ravaging historic streetscapes across the nation. * * *

    The tax deductions are supposed to represent the decrease in value of the property caused by the easement restrictions. Increasingly, though, the easements have become a way for owners of expensive houses to reap a windfall.

    An analysis by The Washington Post of federal and local government data identified about 900 residential facade easements in Washington covering a total of 1,400 homes and condo units. Nationwide, the number of easement donations has been increasing rapidly, hitting about 700 last year.

    Today, the average assessed value of residential structures covered by facade easements in the District is more than $1 million, the analysis showed.

    The homes tend to be clustered in affluent neighborhoods in Capitol Hill, Dupont Circle and Georgetown. Most display brass plaques, many of them round and bearing a star, identifying the trust that holds the easement.

    Homes enrolled in the program need not be architecturally striking. The houses also need not be especially antique -- homes built as recently as 1950 may qualify. And many preservationists say the easements may increase a building's value -- making the tax breaks unwarranted.

    "They are giving up absolutely nothing," said former Treasury official Daniel Halperin, now a nonprofit tax specialist at Harvard Law School. J. Peter Byrne, a historic preservation specialist at Georgetown University Law Center, called the donations "bogus gifts" that have been supplying homeowners with "free money."

    The increase in easements has been driven by the emergence of for-profit "facilitators" -- businesses that market the program and process the paperwork for homeowners, making the procedure quick and painless. In recent years, such companies and the nonprofit preservation groups that hold the easements have taken in millions of dollars for processing paperwork and monitoring the easements.

    Today's Post story is accompanied by several sidebars. "Local Laws Already Bar Alterations: Intervention by Trusts Is Rare for Preservation" is available here; "Why One Building Lost Its Character While Another Didn't," is available here.

    This graphic shows how rapidly use of the write-off is growing, not only in D.C. and New York, but in Illinois, which ranks third on the chart.

    This very cool map shows the location of historic fascade easements in Washington DC.

    And what about Indiana? There are at least two NFP organizations in Indiana to which one can donate an easement and receive a tax federal income tax deduction, as well as a potential estate tax deduction and lower property taxes.

    • Historic Landmarks Foundation of Indiana provides this site, with this pull-quote: "Donating an easement to Historic Landmarks not only guarantees the protection of a historic building forever, it also provides another powerful benefit— lower taxes." Notably, the article states: "Usually, the building must be listed in the National Register of Historic Places." If I understand the Post article, that is its point - a building on the Historical Register (particularly one in a historically-zoned district, such as are common in Indianapolis) is already restricted from altering its façade.
    • Historic Madison, Inc. also provides a façade easement program.
    Undoubtedly there will be follow-ups and responses to this Post story, as there were to its series of stories about the Nature Conservancy last year; I will try to post them here.

    [Updated 12/13/04] "Tax Break Turns Into Big Business" is the headline to the second part of the Post's two-part series on façade easements, published today. As explained in the story today:

    Historic preservation was a sleepy little field until seven years ago, when financial adviser James M. Kearns began inviting property owners into his Dupont Circle home to learn about an obscure federal program.

    Kearns and a friend, Steven McClain, advised homeowners that they could use the program to claim sizable income tax write-offs -- tax breaks that generally totaled 11 percent of their house's market value. To obtain that windfall, though, homeowners first had to engage in a complicated process ending in a facade easement donation.

    Kearns and McClain offered a pain-free alternative in fliers for their business partnership: "For a fee, the Capitol Preservation Alliance will prepare and process the easement donations for you."

    That user-friendly pitch proved a hit. Brass plaques identifying houses in the program began popping up like crocuses, first in Washington, then in New York and other cities.

    Not only the homeowners benefited. Millions of dollars also flowed to the for-profit companies that promoted the program and to the nonprofit trusts that held the easements and monitored the facades.

    One such nonprofit is the National Architectural Trust, founded by Kearns and McClain. In less than four years in business, the nonprofit trust says it has reaped nearly $17.5 million in what it describes as contributions -- fees paid by easement donors to underwrite the cost of processing paperwork and monitoring facade restrictions. Although the Washington-based trust used some of the cash to build an endowment, it also paid more than $5.5 million in 2003 alone to a for-profit company owned by Kearns and McClain, records and interviews show.

    The Post today also has a box titled
    "How Facade Easements Work," with this explanation:
    Income tax breaks are available to owners of many buildings in designated historic districts or listed on the National Register of Historic Places. Owners sign a property easement in which they promise not to change the building's outward appearance without approval. They donate the easement to a nonprofit trust and then estimate how much the restrictions have lowered the building's value. They write off that amount as a charitable contribution. The buildings often bear plaques, such as the one above, which identify the trust.
    Finally today, the Post has this story, headlined "As Word Spreads, Clamor to Donate Grows." Some quotes from this amazing recount:
    Two years ago, the doorbell rang at Jennifer Litwin's $3 million French Renaissance townhouse, just steps from Lake Michigan on Chicago's Gold Coast. On the stoop was Andrew Fisher, an executive from the nonprofit Landmarks Preservation Council of Illinois.

    Fisher offered to show Litwin how she and others in the neighborhood could save a small fortune, she recalled, and she offered to hear him out.

    "None of my neighbors did it because they were suspicious," Litwin said. "My husband thought I had just lost my mind."

    Eventually, Litwin and her husband agreed to give the council $30,000, she said. They also gave the council a historic facade easement on their home, in which they promised not to change the outward appearance of their townhouse without first seeking approval from the council.

    That, Litwin said, allowed the couple to claim a federal income tax write-off totaling $300,000.

    News of the donation helped set off a land rush in Illinois, one that continues to this day and which mirrors a boom in easement donations that began in Washington and New York. Between 1997 and 2001, no one from Illinois applied to the National Park Service seeking to certify a home as historic for a charitable donation. That changed in 2002, when 118 Illinois property owners received certification, followed by 155 last year, according to federal data analyzed by The Washington Post.

    Posted by Marcia Oddi on Sunday, December 12, 2004
    Posted to General Law Related

    Indiana Government - Inefficient distribution of Efficiency Reports

    A brief item today at the end of the Indianapolis Star's weekly Behind Closed Doors column caught my eye. It reads:

    A book and its cover

    A reader couldn't help but remark upon the faux-leather bound, gold-lettered report of the Indiana Government Efficiency Commission's general government subcommittee. His question: Does anyone else think that this was an incongruous method of distributing a report on cost savings?

    It may be worse than that. As I wrote in this Nov. 21st ILB entry:
    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.)

    The "shots on television" were of the leatherette-bound reports referred to in today's Star story. Apparently these printed copies went to members of the General Assembly. My Nov. 21st entry goes on to detail what the rest of Indiana can do to review the Efficiency Reports; not a simple proposition.

    I've checked again today, over 3 weeks later, and nothing seems to have improved for the public. The reports technically-speaking are "available" online, via this entry page. But no effort was expended in making them accessible. Following the link to the Subcommittee on General Government, the reader is faced with a list of over 50 files, with no indication of what they are. Besides being unlabeled, some of these documents are enormous (and needn't have been). One, for instance, is a 1,409 page document, consuming 317 MB (bigger than many of my early hard drives). And there is no warning; click it and w-a-i-t if you don't have DSL.

    Again, the second half of my Nov. 21 entry spells out for the reader what is in these files, how large they are, etc. Certainly, the Government Efficiency Commission might have presented its reports more efficiently.

    Posted by Marcia Oddi on Sunday, December 12, 2004
    Posted to Indiana Government

    Saturday, December 11, 2004

    Indiana Courts - More on the school fees case

    Updating our most recent (11/24/04) entry on Nagy v. Evansville-Vanderburgh School Corp., the school fees case argued before our Supreme Court on Nov. 23rd, is this excellent review today by Pam Tharp in the Richmond Palladium-Item. A few quotes:

    The Indiana Supreme Court will decide soon whether charging fees to public school students is constitutional. And how the court defines the fees could be crucial to already cash-strapped school districts across the state.

    Almost all Indiana schools charge students some fees, though most aren't charging students the kind of fee that triggered the court case by a parent against Evansville-Vanderburgh Schools.

    The Evansville district charged students a $20 activity fee that was used to pay nurses and counselors, the Associated Press reports.

    Attorneys for parents argued the activity fee, levied to raise funds to offset the district's budget deficit, was the equivalent of charging tuition because it paid salaries. Tuition for public schools is prohibited by the Indiana Constitution.

    Richmond Community Schools charges fees but they're all directly related to instructional services, Superintendent Allen Bourff said.

    "We link all our fees to supplies. We feel very comfortable that we've complied with the law as it has been interpreted," Bourff said.

    Using fees to pay salaries brought attention to Evansville's fee, said Centerville Superintendent Charles Hobbs.

    "We have no fees that are comparable to Evansville's. Our fees are pretty standard, lab fees for materials, a postage fee for report cards," Hobbs said.

    "We're more concerned that the ruling might declare no fees could be charged, including textbooks. It could have far-reaching ramifications," Hobbs added.

    The lawsuit didn't include textbook fees as an illegal fee, but in its ruling the Indiana Court of Appeals said the activity fees, and perhaps textbooks fees, were unconstitutional. Evansville schools appealed that ruling to the Indiana Supreme Court.

    Posted by Marcia Oddi on Saturday, December 11, 2004
    Posted to Indiana Courts

    Law - More on interstate wine shipment

    Supplementing our entry from Dec. 8 on the Dec. 7th interstate wine oral arguments before the U.S. Supreme Court are two reports from the PBS NewsHour, initially broadcast the evening of Dec. 7th, 2004. First, "A report on wine consumers in Michigan who won a case challenging state laws blocking wine imports, now in appeal." Second, " A Supreme Court reporter discusses the case brought by Michigan's wineries to appeal the decision by the Sixth Circuit Court allowing Michigan consumers to import out-of-state wine over the Internet." The video is available for viewing as the fourth and fifth sequents on this page.

    [More] The Sacramento Bee today has a story titled "Wineries unite on direct shipping" that begins:

    WASHINGTON - Wineries large and small stand nearly shoulder to shoulder as they await a Supreme Court decision on direct shipping to customers.

    But the industry wasn't always so united.

    Not so long ago, Modesto's E&J Gallo Winery stood apart from California's small wineries. Indeed, it says something about the industry's evolution that in the early stages of the legal battle, which climaxed in the Supreme Court on Tuesday, Gallo and the small wineries were adversaries, not allies.

    The article goes on to provide interesting detail on the history of the large and small winery involvements. It concludes with this section about how Gallo weighed in on the original interestate wine case, an Indiana case, on the side of the wine wholesalers, but how it has since changed its stance:
    Gallo was weighing in on the first direct shipping case, which then was winding through the lower courts. A district judge had struck down Indiana's direct shipping ban, and the state was appealing. Gallo hired [Walter] Dellinger to file an amicus brief, spelling out the company's stake in the case then known as Bridenbaugh v. Modisett.

    The company aligned its arguments, at the time, with the wholesalers who were likewise fighting the wineries that advocated direct shipping.

    "As the world's largest winemaker, Gallo Winery has distributorship agreements in all 50 states with hundreds of wholesalers, including several in Indiana," the company noted in its brief. The company added that "the decision in this case may fundamentally alter how Gallo Winery conducts its business not only in Indiana, but also around the country."

    Gallo's position, which included the 21st Amendment contention, and that of the state of Indiana, prevailed in the earlier Bridenbaugh case. In time, though, as other legal challenges rose through the courts, Gallo amended its opposition to direct shipping.

    "It's a different time," Gallo spokesman John Segale said, "and that's not the position they have today."

    Instead, Gallo has adopted a studied neutrality, or, as Genesen put it, "after Bridenbaugh, they became agnostic."

    Consequently, the company says it can be content with whatever the court does. This is not the same as the enthusiastic support for direct shipping articulated by smaller wineries, but it is definitely a shift from the old opposition.

    "This case is going to be decided by the court, Segale said, "and we're prepared to do business with any decision they make."

    Posted by Marcia Oddi on Saturday, December 11, 2004
    Posted to General Law Related

    Environment - Recent stories

    "Lakes up costs for new water treatment plant: Current facility likely to be fined before money is available," is the title to a story published Friday, 12/10/04 in the Richmond Palladium-Item. A quote:

    LIBERTY, Ind. -- Complying with stricter wastewater permit standards required because the town is upstream from two recreational lakes adds $1 million to the cost of a new treatment plant, engineer Marty Wessler said Thursday.

    Even so, there are no state or federal funds earmarked to help towns in that situation. Liberty needs $5.8 million, which includes the additional $1 million for stricter compliance, to build a new treatment plant and upgrade its collection system. The council hopes to trim that total before bids are taken.

    Outreach coordinator Michael Layman of the Army Corps of Engineers told the council at a special meeting Thursday it could seek funds through the federal environmental infrastructure program but it wouldn't receive any special consideration because Brookville Lake is a corps flood-control project. Federal funds are a longshot now, Layman said.

    "Our funds are at the mercy of Congress. You can only squeeze so much blood out of a turnip. With a $300 trillion deficit, money is hard to come by," Layman said.

    Four Indiana projects were on the federal list this year for funding, but none received money, Layman said. The town's project likely would be on the shelf for five years if it waits for federal funding, Layman said.

    Liberty likely will be cited and fined by the Indiana Department of Environmental Management before then for violations at its 30-year-old plant, Wessler said.

    "Opinions aired on mercury emissions" was the headline to a story published Thursday, 12/9/04 in the Vincennes Sun-Commercial. Some quotes:
    Those affected by pending state rules to reduce mercury emissions from electric power plants were able to air their opinions during the fourth in a series of public hearings conducted Wednesday by the Indiana Department of Environmental Management (IDEM).

    As required by the federal Clean Air Act, the US Environmental Protection Agency is due to finalize federal guidelines on mercury reduction by March 15. This meeting was part of a consultative process to determine what type of rules should be adopted by Indiana in order to comply with the upcoming new federal guidelines.

    The principle purpose of this public hearing was to debate a petition filed by the Hoosier Environmental Council (HEC) with IDEM's Air Pollution Control Board (APCB) last June to require Indiana to adopt a more stringent standard of 90 percent reduction in mercury output by 2008. The U.S. EPA standards set to come into effect by March 15 require a 70 percent reduction by 2018.

    "Water tower battle brews: Valparaiso homeowners might try to halt construction," was the headline to this story Friday, 12/10/04 in the Munster Times. This story updates earlier ILB entries from 11/30/04 and 11/26/04 (2nd item). Friday's story reported:
    VALPARAISO | The Knollcreek Homeowners Association again has to decide if it wants to fight city hall, or, in this case, the city's Water Department.

    In a preliminary review before an administrative law judge this week, the city argued the association had no legal standing to file a complaint with the Indiana Department of Environmental Management. The homeowners claimed the city violated the notification requirements when seeking an IDEM permit to build a million-gallon water tower in the Meridian Woods retirement community on Campbell Street.

    The administrative law judge for the IDEM office of environmental adjudication asked the association's lawyer, Patrick McEuen, to submit his arguments by March 15. McEuen said the city would have 30 days to respond to his arguments and he would have 15 days to file a rebuttal.

    Posted by Marcia Oddi on Saturday, December 11, 2004
    Posted to Environment

    Friday, December 10, 2004

    Indiana Government - [Updated] Daniels names head of Department of Administration

    Per a just issued release:

    Governor-elect Mitch Daniels Taps Retired Telecommunications Company President as Commissioner of the Dept. of Administration

    INDIANAPOLIS - Today Governor-elect Mitch Daniels announced that retired GTE President Earl Goode agreed to leave his retirement and join state government as Commissioner of the Department of Administration.

    "Our initial look at state government has already uncovered a host of practices that defy business sense and just common sense," said Governor-elect Daniels. "With leadership like Earl's, we should be able to save millions of dollars for the taxpayers of our state."

    Goode spent 39 years working for GTE (now Verizon). He was President of GTE Information Services at the time of his retirement. Earlier, he served as President of GTE North, a telecommunication company headquartered in Central Indiana that provided telephone and related services to five million customers in a ten state region.

    "In the final weeks of the campaign I had the opportunity to hear Mitch speak at an event and it affected me," said Goode. "Mitch took the time to listen, answer questions, and speak from the heart about his vision for Indiana. I remember thinking that if I ever considered getting into public service I'd like to work with this man. If I hadn't attended that event, I probably wouldn't be here today."

    Since retirement, Goode has been involved in a number of activities including: Chairman of the Indiana Sports Corporation, and director for Sallie Mae Corporation, Goodwill Industries Foundation, and Legacy Community Foundation.

    The updated Daniels' organization chart, current as of this writing (i.e., draft #3), is available here.

    [Updated 12/11/04] This morning's Indianapolis Star contains this story, headlined "Daniels falls behind in filling posts: Governor-elect names head of administration but won't hire others until he finds right people." Some quotes:

    Finding the kind of people he wants in top state jobs is taking longer than expected and may not be wrapped up before he's sworn in Jan. 10, Gov.-elect Mitch Daniels said Friday.

    Daniels said he wants people like Earl Goode, the retired president of GTE Information Services, whom he appointed Friday as the next commissioner of the Department of Administration. "I won't sacrifice talent, top-tier talent and experience, just for speed," he said.

    Daniels said he may have some interim agency heads, people who fill those top jobs for a couple of months until a more permanent appointee is found.

    "We can count close to 40 jobs that are absolutely top-level, and we may not get all 40 of them done by the 10th," Daniels said. "We needed 10 a week, and we didn't hit it this week." * * *

    The Louisville Courier Journal reports here
    Daniels also said the process of filling the positions for the first Republican administration in 16 years has not gone as quickly as he would have liked.

    "I won't sacrifice top-tier talent just for speed," Daniels said. "I never thought this would be easy."

    Daniels would not name the positions he is having difficulty filling.

    "There are a few that I consider critical that have not made my heart sing just yet," Daniels said.

    Daniels filled an important position earlier this week when he named Edward Mitchell "Mitch" Roob Jr. to run the state's Family and Social Services Administration. That same day he named Karl Browning to be the state's chief information officer.

    Among the more prominent posts still unfilled are directors for departments of environmental management, correction, transportation and health.

    The Department of Revenue is another essential state agency.

    Posted by Marcia Oddi on Friday, December 10, 2004
    Posted to Indiana Government

    Indiana Decisions - Court of Appeals posts two today

    Michael Davis v. State of Indiana (12/10/04 IndCtApp) [Criminal Law & Procedure]
    Sullivan, Judge

    Michael Davis appeals his conviction for Battery Resulting in Serious Bodily Injury, a Class C felony. Upon appeal, Davis presents the following issues which we restate as:
    (1) whether Davis was denied a speedy trial under the Sixth Amendment;
    (2) whether the trial court erred when it refused Davis’s tendered jury
    instruction on serious bodily injury; and
    (3) whether Davis was denied a trial by a jury of his peers.
    We affirm.
    Amerisure, Inc. v. Wurster Construction Company, Inc. (12/10/04 IndCtApp) [Insurance]
    Ratliff, Judge
    * * * Based upon the foregoing analysis and authorities, we conclude that there was neither “property damage” nor an “occurrence” as those terms are defined in Wurster’s CGL policy. Therefore, the definitional requirements for coverage were not met. In addition, because there was no initial coverage, we need not look to the exclusions or exceptions to exclusions contained in the policy. Thus, the trial court erred in determining that coverage existed and entering summary judgment for Wurster and denying summary judgment for Amerisure. Reversed.
    KIRSCH, J., and CRONE, J., concur.

    Posted by Marcia Oddi on Friday, December 10, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Tax Court posts one today

    Indianapolis Osteopathic Hospital, Inc. d/b/a Westview Hospital and Health Institute of Indiana, Inc. v. Department of Local Government Finance (12/9/04 IndTaxCt) [Property Tax]
    Fisher, J.

    Indianapolis Osteopathic Hospital, Inc., d/b/a Westview Hospital (Westview), and Health Institute of Indiana, Inc. (HII) (collectively, the Petitioners) appeal the final determinations of the State Board of Tax Commissioners (State Board) assessing their real and personal property for the 1999 and 2000 tax years (the years at issue). The issue for the Court to decide is whether the Petitioners’ property qualifies for the charitable purposes exemption as provided in Indiana Code § 6-1.1-10-16. * * *

    Given the evidence in the record, this Court is not convinced that the JCC and Healthplex/MP are similarly situated. Consequently, the Petitioners have not met the second prong of the Collins test, and therefore have not shown that Indiana Code § 6-1.1-10-16, as applied, violates Article 1, § 23 of the Indiana Constitution.

    For the foregoing reasons, this Court AFFIRMS the State Board’s final determinations in part and REVERSES them in part. The final determinations are therefore REMANDED to the Indiana Board of Tax Review for action consistent with this opinion.

    Posted by Marcia Oddi on Friday, December 10, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Supreme Court posts one today

    Travis L. Stephens v. State of Indiana (12/10/04 IndSCt) [Criminal Law & Procedure]
    Sullivan, Justice

    Defendant Travis Stephens was sentenced to ten years in prison, with four years of that sentence suspended to probation. After serving the time in prison, he violated the terms of his probation. The court revoked his probation and ordered him to serve an additional three years. The Court of Appeals held that when the court revoked his probation, it was required to order him to serve the full four years originally suspended and nothing less. We hold that the probation revocation statute permits a trial court to order a defendant to serve less than the entire amount of a suspended sentence when it revokes the defendant’s probation. * * *

    We hold that a trial court has the statutory authority to order executed time following revocation of probation that is less than the length of the sentence originally suspended, so long as, when combined with the executed time previously ordered, the total sentence is not less than the statutory minimum. Here, the three-year term imposed following revocation of Defendant’s probation, when combined with the six-year term previously imposed (and satisfied), is greater than the statutory minimum (six years) for a Class B felony. I.C. § 35-50-2-5. The trial court had authority to order the three-year term.

    III. In the Court of Appeals, Defendant claimed that the additional three-year sentence for his probation violations was “unreasonable given the nature of the violations and the character of the offender.” Given the outcome in the Court of Appeals, it is not surprising that he does not review this argument to us on transfer. Nevertheless, under Indiana Appellate Rule 58(A), once transfer is granted, this court has jurisdiction over all issues in the appeal as if the case was initially filed in this court.

    We have reviewed the facts of the case and find the trial court’s reasoning for the sentence imposed to be persuasive.

    Conclusion. We affirm the judgment of the trial court.

    Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

    Posted by Marcia Oddi on Friday, December 10, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts one

    Alimi, Selman v. Ashcroft, John (Petitions for Review of Orders of the Board of Immigration Appeals)

    An immigration case, petitions for review of the Board's orders are denied.

    Posted by Marcia Oddi on Friday, December 10, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Transfer list for week ending December 10, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending December 10, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

    Two cases was granted transfer by the Supreme Court today:

  • Aaron G. Fowler v. State of Indiana (6/14/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]

  • Hershel Hammon v. State of Indiana (6/14/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]

    Access the Indiana Law Blog entries on these decisions here. Both cases involved consideration of the U.S. Supreme Court's March 8, 2004 decision in Crawford v. Washington, involving the Confrontation Clause (6th am. - "to be confronted with the witnesses against him") of the U.S. Constitution.

    Coincidentally, just this Wednesday, Dec. 8th, a new blog has appeared on the web, named "The Confrontation Blog." Authored by Richard D. Friedman, the Ralph W. Aigler Professor of Law at the University of Michigan Law School, the new blog "is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary."

    Posted by Marcia Oddi on Friday, December 10, 2004
    Posted to Indiana Transfer Lists

    Law - Ohio sets new lawsuit limits

    "Ohio sets new lawsuit limits: Legislators put caps on damages, punitive awards" is the headline to a story today in the Cincinnati Enquirer. Some quotes from the story:

    The Ohio General Assembly passed a sweeping, business-friendly bill to change the state's personal injury lawsuit system early Thursday, enacting caps on some forms of pain-and-suffering damages and punitive awards.

    Gov. Bob Taft commended passage of Senate Bill 80, and it will become law 90 days after he signs it. "A fair and effective civil justice system is an essential part of promoting and sustaining an attractive business climate in Ohio," he said Thursday.

    But whether the bill has the long-term effect of attracting businesses, creating jobs and reducing business insurance rates in Ohio remains in doubt.

    Two previous tort reform bills have been declared unconstitutional in the past decade, and many believe this bill - or portions of it - may face the same fate.

    Read the story for a thorough analysis of the bill's provisions.

    And what of Indiana? Indiana's punitive damages allocation statute, IC 34-51-3-6, provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. This law was enacted in 1998. The law was challenged and upheld by the Indiana Supreme court in the case of Cheatham v. Pohle (5/30/03). Access the Indiana Law Blog coverage of the opinion here. The 7th Circuit recently relied on Cheatham in its opinion in Juarez v. Menard, Inc. (April 2004). See Indiana Law Blog coverage here.

    The above is adapted from this 5/15/04 ILB entry.

    Posted by Marcia Oddi on Friday, December 10, 2004
    Posted to General Law Related

    Thursday, December 09, 2004

    Indiana Government - Stories today on Daniels' appointments

    No new appointments today, so far, but several noteworthy stories about recent selections.

    The Elkhart Truth has a long editorial titled "Daniels' team looking good, " containing both praise and cautions. Some quotes:

    Besides impressive resumes, the eight share something else in common -- a shortage of experience with not only state government but public administration of any kind. Their willingness to leave lucrative careers or -- in Silverman's case -- retirement is admirable.

    Daniels is counting on the fact that these new public servants will come into office unencumbered by biases and resistance to change of government bureaucracy. He's also counting on each of them bringing successful practices from the business world.

    Most who come into contact with state government will quickly realize that Indiana's services and agencies don't always hit on all cylinders. * * *

    While Silverman may bring to the BMV some good customer service ideas from his retail days, his greatest contribution may be in reshaping a culture focused too little on pleasing the customers -- Indiana motorists and vehicle owners.

    Previous charges about poor service at the BMV have usually been met with complaints by employees of inadequate compensation. We believe the problems run much deeper than that. Retailers aren't known for their generous pay packages, yet many help their customers far more efficiently than the BMV.

    With Mitch Roob, Daniels has selected an individual who has enjoyed success with government reorganization. He helped rework Indianapolis city departments in the 1990s under then-Mayor Stephen Goldsmith and headed an agency that supervised the Marion County Health Department and Wishard Memorial Hospital.

    We're eager to hear about the merits of other new ideas Daniels' team has for the state, but the new administration should also be cautious about cleaning house too thoroughly. Like it or not, Daniels needs on his side the state bureaucracy he criticized in his campaign to make the changes he believes are necessary. Therefore, the governor-elect must also select competent managers with state government and public service experience -- Roob is a good start.

    Failing to do so could mean a rocky transition for the new administration. Case in point: An overzealous outsiders' attitude torpedoed the early days of Bill Clinton's White House, leading to much wasted time and effort.

    Indiana's future cannot afford wasted time and effort. Every decision, every choice has to count.

    Daniels and his team have the ability to hit the ground running. But it must not run over key people in the process.

    The Indianapolis Star had an editorial today headlined "New FSSA chief faces big challenge." It begins: "Our position is: The governor-elect has appointed a gifted administrator to tackle the toughest job in state government."The Daniels' organization chart, current as of this writing, is available here.

    Posted by Marcia Oddi on Thursday, December 09, 2004
    Posted to Indiana Government

    Indiana Law - Law firm sues over pesky faxes

    "Law firm sues over pesky faxes" is the title to this story today in the Fort Wayne News-Sentinel. It begins:

    A local law firm has had enough of “Just the fax, ma’am.” As a result, a Fort Wayne mortgage firm has been sued for sending out unsolicited facsimile messages to another business.

    The law firm of Pellegrino & Associates brought the action this week in Allen Superior Court, seeking an injunction to block Pioneer Mortgage, 9602 Coldwater Road, from sending messages promoting low mortgage interest rates available through the company.

    Posted by Marcia Oddi on Thursday, December 09, 2004
    Posted to Indiana Law

    Environment - More stories today

    "Lawrenceburg sues gas company over polluted water" is the headline to this story today in the Aurora Journal-Press. Some quotes:

    The City of Lawrenceburg has filed suit in Dearborn Circuit Court seeking compensatory damages from the Lawrenceburg Gas Co. and four co-defendants in connection with the release to the surface of 650,000 gallons of salt brine/connate water two years ago.

    The suit contends that the polluted water released Nov. 6, 2002, from a natural gas storage reservoir did “Impact and/or threatened to impact the local aquifer, which serves as a water source for the City of Lawrenceburg, as well as others.”

    Listed as one of the co-defendants with Lawrenceburg Gas Co., also known as Cinergy, is Stair & Associates Inc., Indianapolis, Ind., and Middleton Corp., of Akron, Ohio, which were installing a geothermal loop heat exchanger for an elementary school that was built behind the Greendale Middle School in Lawrenceburg. * * *

    The suit contends that the incident occurred while the co-defendants were engaged in drilling the 400-foot geothermal line. At or near 290 feet below the surface, the city contends that the drilling broke into a subsurface reservoir of natural gas, believed to be owned and operated by the defendant, Cinergy.

    As a result of the release of pollutants into the city’s aquifer, the suit charges, and as ordered by the Indiana Department of Environmental Management, the city incurred “significant damages in terms of response and remediation costs,” according to the legal filings.

    The response and remediation costs included emergency mobilization of response teams, subsurface investigations into the extent of the brine contamination, pumping and removal of brine contamination, and testing and confirmation sampling of the area upon completion to ensure that primary and secondary drinking water standards were met, and that the aquifer had been cleaned up in accordance with state and federal law, according to the court documents.

    The suit notes that the City of Lawrenceburg bears no fault in the damages, and that the defendants are jointly and severally liable for the damages incurred by the city. Lawrenceburg’s suit was filed by city attorney Joseph W. Votaw III.

    "Defunct companies must pay fines, clean sites," is the headline to this story today in the Richmond Palladium-Item. Some quotes:
    Two former Winchester companies have been ordered to pay $206,000 for violating the state's environmental protection laws and clean up their former site.

    According to a press release from Indiana Attorney General Steve Carter, who sought the penalties, Carson Stripping and Carson Laser and their operator, Gary Phelps, must pay the fine and are ordered to establish measures to identify and dispose of the hazardous waste.

    Carter had filed a lawsuit in Randolph Superior Court last month to enforce a penalty and compliance order from the Indiana Department of Environmental Management.

    Posted by Marcia Oddi on Thursday, December 09, 2004
    Posted to Environment

    Indiana Decisions - 4 new postings by Court of Appeals

    William H. Tobin v. Saul I. Ruman, et al (12/9/04 IndCtApp) [Contracts; Employment Law]
    Baker, Judge

    In light of the issues discussed above, we conclude that the trial court: (1) erred in granting summary judgment on Count VI because the oral employment contract does not fall within the Statute of Frauds; and (2) properly granted summary judgment on Count VII because Tobin’s fraud claim fails as a matter of law. Therefore, Count VI may proceed to trial.

    We also find that the trial court: (1) properly granted Tobin’s summary judgment motion on Count II, but improperly based its Count II ruling on the Wage Payment Act, resulting in improperly calculated damages; and (2) properly granted Tobin’s summary judgment motion on Count III, but improperly based its ruling in part on a criminal conversion theory because no such conduct occurred as a matter of law. Thus, an improper calculation of damages occurred with respect to this count as well. In sum, the trial court should have granted Tobin’s summary judgment motion as to Counts II and III based on a breach of contract theory, finding that Tobin was damaged in the amount of $15,000 plus interest as to Count II, and in the amount of $5,301 plus interest as to Count III. As there appears to be a dispute with respect to the proper amount of interest that should be awarded, we remand to the trial court to determine the amount of interest that is due on Counts II and III.

    The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
    ROBB, J., concurs.
    KIRSCH, C.J., concurs and dissents with opinion.
    I fully concur in the decision of the majority as to all issues except for its holding that the alleged oral contract providing that the four one per cent equity owners would be equally compensated on an annual basis does not violate the Indiana State of Frauds. On such issue, I respectfully dissent.

    Tobin alleges that there was an oral contract which provided that he would receive compensation equal to the other one per cent equity partners on an annual basis. Thus, the alleged provision calling for equal compensation was to remain in effect over a term of years. This provision speaks prospectively from that date of contracting and falls within the Statute of Frauds. Although the contract may have been terminated pursuant to the at-will employment provision at any time, the provision was to remain in effect until termination. Indeed, Tobin alleges that it applies to the entire twelve year period in which he was employed while an equity owner. I would affirm the trial court’s grant of summary judgment on this issue.

    Paul & Jolene Rodriguez v. Margie Rodriguez (12/9/04 IndCtApp) [Family Law]
    Ratliff, Judge
    The following issue is presented in this appeal: Whether the trial court erred by holding that the premature change in beneficiary of a life insurance policy required by a marital settlement agreement was voidable and not void. * * *

    The trial court correctly determined that the premature change of beneficiary was voidable and not void. The decree, which incorporated the terms of the parties’ settlement agreement, contained a provision for the termination of Husband’s obligation to name Paul and Jolene as beneficiaries of the life insurance policy. Affirmed.
    MAY, J., and VAIDIK, J., concur.

    David A. Ryker Printing Company, Inc. v. George Nunamaker (12/9/04 IndCtApp) [Employment Law]
    BAKER, Judge
    Appellant-defendant David A. Ryker Painting Co., Inc. (Ryker) appeals the trial court’s judgment in favor of its employee, appellee-plaintiff George Nunamaker. Specifically, Ryker raises two issues, which we consolidate and restate as one dispositive issue: whether the trial court erred as a matter of law by concluding that Nunamaker was entitled to maintain a claim under Indiana Code section 22-2-5-1, the Wage Payment Statute. Concluding that the Wage Payment Statute has no application in this case, we reverse. * * *

    As noted above, the purpose of the Wage Payment statute is to punish employers for converting their employees’ services by stealing their wages. There is no need to punish an employer that genuinely believes that it has done the right thing in the frequency and amount of compensation it gives its employees. A dispute between parties as to an amount that might be owed is not tantamount to a conversion. In our view, the legislature could not have intended that a company be required to pay treble damages every time a good faith dispute as to wages arises. Furthermore, Nunamaker did not incur any attorney fees in the action before the IDL, where he received full compensation. In fact, Nunamaker never would have incurred attorney fees but for filing the present action. In light of the above reasoning, we find that the Wage Payment Statute is inapplicable in this case, and Nunamaker is entitled to neither treble damages nor attorney fees. The judgment of the trial court is reversed.
    KIRSCH, C.J., and ROBB, J., concur.

    Lonnie Cheatham v. State of Indiana (12/9/04 IndCtApp) [Criminal Law & Procedure]
    Barnes. Judge
    Case Summary. Lonnie Cheatham brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress. We affirm.

    Issue. The sole issue on appeal is whether the trial court erred in denying Cheatham’s motion to suppress numerous controlled substances that police discovered during a warrantless search of his automobile. * * *

    Conclusion. The search of Cheatham’s vehicle was permissible under the Fourth Amendment to the United States Constitution and Article One, Section Eleven of the Indiana Constitution. Therefore, we affirm the denial of his motion to suppress. Affirmed.
    NAJAM, J., and SULLIVAN, J., concur.
    We respectfully disagree with other cases from this court that have held the State must prove exigent circumstances on a case-by-case basis to invoke the automobile exception under the Fourth Amendment. See Edwards v. State, 762 N.E.2d 128 (Ind. Ct. App. 2002) aff’d on rehearing, 768 N.E.2d 506 (Ind. Ct. App. 2002), trans. denied; Scott v. State, 775 N.E.2d 1207 (Ind. Ct. App. 2002), trans. denied (2003); Shepherd v. State, 690 N.E.2d 318 (Ind. Ct. App. 1997), trans. denied; Green v. State, 647 N.E.2d 694 (Ind. Ct. App. 1995).

    Posted by Marcia Oddi on Thursday, December 09, 2004
    Posted to Indiana Decisions

    Indiana Decisions - 7th Circuit posts one

    USA v. Gilbert, Stanley (SD Ind., Sarah Evans Barker, Judge)

    * * * Gilbert raises a number of challenges on appeal, but the
    dispositive one concerns the admission at trial of pre-trial
    statements made to police officers by Gilbert’s wife, Sherese
    Gilbert (hereinafter referred to as “Sherese” so as to distinguish
    her from the defendant Gilbert). Sherese invoked
    her marital testimonial privilege and refused to testify at
    trial. The court, however, admitted the taped conversation
    with the officers as well as its transcript into evidence. In
    admitting the conversation into evidence, the court held
    that it bore sufficient circumstantial guarantees of reliability.
    The court relied for its ruling on prior caselaw that held
    such statements were admissible under the residual
    exception to the hearsay rule in Federal Rule of Evidence
    807 (formerly Fed. R. Evid. 804(b)(5)) if the declarant were
    unavailable as a witness and there were sufficient circumstantial
    guarantees of trustworthiness. * * *

    Since Gilbert’s trial, however, the Supreme Court issued
    Crawford v. Washington, 124 S. Ct. 1354 (2004). Addressing
    a similar situation in which a wife’s out-of-court statements
    to a police officer were admitted at trial, the Crawford
    Court held that the admission of testimonial hearsay
    evidence in a criminal trial where the defendant has no
    opportunity to cross-examine the witness violates the
    Confrontation Clause of the Sixth Amendment. Id. at 1374.
    In light of that Supreme Court decision, the government
    acknowledges on appeal that the taped conversation was
    not properly admissible, and that its admission at trial
    violated Gilbert’s constitutional rights under the Confrontation
    Clause. The government argues, however, that its
    admission was harmless. Therefore, the issue before us is
    whether it is clear beyond a reasonable doubt that a rational
    jury would have found Gilbert guilty even absent the
    admission of Sherese’s statement. Neder v. United States,
    527 U.S. 1, 18 (1999); United States v. Nance, 236 F.3d 820,
    825 (7th Cir. 2000). We therefore must consider the improperly
    admitted evidence in the context of the trial as a
    whole. * * *

    In light of the evidence as a whole at trial, we
    cannot determine beyond a reasonable doubt that a jury
    would have returned a guilty verdict absent the statements
    by Sherese. Accordingly, Gilbert is entitled to a new trial
    free from that error. * * *

    In conclusion, although the district court properly followed
    our precedent in admitting Sherese’s statements,
    Crawford has since made it clear that the admission of her
    statements is unconstitutional. Accordingly, the decision of
    the district court is REVERSED and the case REMANDED for
    a new trial.

    Posted by Marcia Oddi on Thursday, December 09, 2004
    Posted to Indiana Decisions

    Environment - Stories today

    "Martinsville files lawsuit over water cleanup costs" is the headline to this story today in the Indianapolis Star. A quote:

    MARTINSVILLE, Ind. -- City officials want to install a filter to protect the municipal water supply, which faces contamination from a chemical suspected of causing cancer.

    However, representatives for Masterwear Corp., the industrial dry-cleaning company accused of releasing the chemical into the soil more than a decade ago, is balking at the city's request to pay for the filter, which is estimated to add at least $600,000 to the cleanup cost.

    To turn up the heat, the city filed a lawsuit Tuesday in U.S. District Court in Indianapolis to recoup all expenses required to clean the water supply.

    "We will continue to negotiate in the hope that we don't have to go to trial," Martinsville City Attorney Rod Bray said Wednesday, "as long as it can be settled on our terms."

    Defendants in the lawsuit are Masterwear Corp.; James A. Reed and his wife, Linda Lou Mull Reed, the owners of Masterwear; and William J. Cure and Elizabeth J. Cure, former owners of the downtown Martinsville building where Masterwear operated from 1986 to 1992.

    Earlier ILB entries on Martinsville groundwater contamination may be located here.

    Porter County Open Space Ordinance. Updating this 9/14/04 ILB entry on the recently passed ordinance requiring developers to set aside open space as part of larger residential developments is a story today in the Munster Times headlined "First case under open space law works well."

    Posted by Marcia Oddi on Thursday, December 09, 2004
    Posted to Environment

    Environment - EPA May Allow the Discharge Of Partially Treated Sewage

    "EPA May Allow the Discharge Of Partially Treated Sewage: Guidelines That Are Near Release Would Permit Blended Waste" is the headline to a story today in the Washington Post. Some quotes:

    The Environmental Protection Agency is close to issuing new guidelines making it easier for sewage authorities to dump partially treated wastewater during heavy rainfalls, according to documents obtained by The Washington Post.

    EPA officials said they had not made a decision, but agency staffers have begun to brief senior political appointees on the plan, which is outlined in a 10-page document titled "Final Policy." The proposal, which was first aired in November 2003, would allow authorities to release a blend of fully treated and partially treated sewage during peak flows. [Here is much the same story from the 2/15/04 Chicago Tribune]

    Some scientists, environmentalists and state and local officials object to blending because it could foster the spread of disease. But others, including local sewage agencies and some government officials, say the approach strikes a safe middle ground between releasing untreated sewage and spending billions on plant upgrades. * * *

    Sewage treatment consists of two stages. Plants first remove solids from the waste and then use bacteria to kill the dangerous viruses, parasites and bacteria that remain. During heavy rains, however, the wastewater in many systems becomes diluted by storm runoff and cannot be fully processed to remove the pathogens.

    Under current policies, plants are supposed to discharge partially treated waste only when there is no alternative, but the EPA's proposal would allow them to do it more often as long as they monitor the waste and ensure it meets federal water quality standards. * * *

    Sewer authorities and city governments argue that blending does not pose a major health risk and makes more sense than spending money on expensive upgrades. Without blending, said Ken Kirk, executive director of the Association of Metropolitan Sewerage Agencies, the industry will have to "spend $200 billion to fix a problem that doesn't need fixing."

    Last week, the National League of Cities endorsed the EPA's plan as long as the blended waste meets federal water quality standards and has undergone initial treatment.

    "The feeling was particularly in disadvantaged areas and some cities with serious infrastructure problems, this would save ratepayers a huge amount of money while protecting their water quality," said Joanna Liberman, the league's senior policy analyst.

    Here is the link to U.S. EPA's information page on the proposed blending policy.

    Posted by Marcia Oddi on Thursday, December 09, 2004
    Posted to Environment

    Wednesday, December 08, 2004

    Indiana Decisions - 7th Circuit posts one today

    Bassiouni, Mahmoud C v. CIA (ND Ill.)

    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
    EASTERBROOK, Circuit Judge. Professor M. Cherif
    Bassiouni, a member of DePaul Law School’s faculty since
    1964, is the head of DePaul’s International Human Rights
    Law Institute and a frequent participant in human-rights
    activities sponsored by the United States, the European
    Union, and the United Nations. In 1983 Bassiouni asked
    the Central Intelligence Agency for copies of all documents
    that mention him. The agency replied that it had some but
    would not reveal any details. In 1999 Bassiouni tried again,
    invoking both the Freedom of Information Act and the
    Privacy Act. Again the agency replied that it has documents
    bearing his name. Some of these, the CIA stated, had come
    from the State Department, to which it dispatched copies.
    The State Department’s catalog and partial disclosure of
    those copies satisfies Bassiouni. But he is dissatisfied with
    the CIA’s refusal to hand over or even describe documents
    it generated internally or received from sources other than
    the State Department. The district court concluded that the
    CIA is entitled to keep mum. 2004 U.S. Dist. LEXIS 5290
    (N.D. Ill. Mar. 30, 2004). * * *

    Bassiouni could have asked
    the district judge to order the CIA to reveal in camera what
    records (if any) it received from the FBI about Bassiouni
    between 1970 and 1975 (and has clung to for 30 years), and
    either purge them from its files or give a statutory justification
    for keeping them. Yet Bassiouni has never made such a
    request—not of the CIA, not in the district court, and not in
    this court. He wants disclosure rather than erasure, and
    disclosure is the one thing that he cannot have.

    Posted by Marcia Oddi on Wednesday, December 08, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Court of Appeals posts two today

    Metropolitan School District of Lawrence Township v. M.S. (12/8/04 IndctApp) [ ]
    Sharpnack, Judge

    Metropolitan School District of Lawrence Township (“School”) appeals from the trial court’s denial of its motion for summary judgment and the grant of a cross-motion for summary judgment filed on behalf of M.S. by her parents, Cynthia Stancliffe and Thomas Stancliffe (collectively, “the Parents”). The School raises one issue, which we restate as whether the trial court erred by finding that the Parents were the “prevailing party” in due process hearing relating to M.S.’s special education needs under the Individuals with Disabilities Education Act. We reverse and remand.
    LaMar Williams v. State of Indiana (12/8/04 IndCyApp) [Criminal Law & Procedure]
    Robb, Judge
    * * * Waiver. We note at the outset that the State asserts that Williams has waived this issue on appeal because he failed to raise an objection at the time of sentencing. We disagree. The trial court sentenced Williams on January 15, 2004. The United States Supreme Court did not decide Blakely until June 24, 2004. Therefore, Williams could not raise an objection under Blakely at the time of his sentencing. * * *

    Without expressing any opinion on the retroactivity of Blakely, it was reasonable for Williams to believe at the time of his sentencing that, because he was sentenced within the sentencing range for a Class D felony provided by our legislature, his sentence did not violate Apprendi, considering our decision in Parker. Thus, Williams has not waived this issue. * * *

    A single aggravating circumstance can justify the imposition of an enhanced sentence. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Therefore, we need not address whether the trial court’s finding of other aggravating circumstances was improper under Blakely because Williams’ prior criminal history, standing alone, was sufficient to enhance his sentence. * * * Under Apprendi/Blakely, only a prior conviction may be used to enhance a defendant’s sentence without a finding of additional facts by a jury. Williams had two prior convictions: a 1994 juvenile adjudication for burglary, a Class C felony if committed by an adult; and a 1997 conviction for possession of cocaine as a Class D felony. Thus, Williams’ criminal history alone was sufficient to support the trial court’s imposition of the maximum sentence.

    Conclusion. The State did not violate Williams’ constitutional rights under Batson when it used a peremptory challenge to remove an African-American from the jury pool. Furthermore, the State presented sufficient evidence to sustain Williams’ convictions. Finally, the trial court did not err in enhancing Williams’ sentence for his Class D felony conviction. Therefore, we affirm the judgment of the trial court. Affirmed.
    KIRSCH, C.J., concurs.

    BAKER, J., concurs in result with opinion.
    I agree with the result reached in this case, but I part ways with the view espoused by the majority that Williams did not waive the Blakely issue.

    Here, at no time before the trial court did Williams raise any objection—either specifically under Apprendi or generally under the Sixth Amendment right to trial by jury—to the court’s finding of aggravating circumstances or imposition of an enhanced sentence. Thus, I believe that the issue has been waived. See Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000) (holding that when a defendant does not properly bring an objection to the trial court’s attention so that the trial court may rule upon it at the appropriate time, he is deemed to have waived that possible error).

    The United States Supreme Court issued its opinion in Apprendi, upon which the defendant in Blakely objected to his “exceptional” sentence, well before Williams’s sentencing hearing in January 2004. In my view, that the Apprendi rule was extended in Blakely is of no moment, inasmuch as Williams should have objected on Apprendi grounds and preserved this issue, just as the defendant in Blakely did.

    That said, while my colleagues in this case go on to decide that Williams’s sentence was proper in light of his prior criminal history—waiver issue aside—I concur with the decision to affirm the trial court’s judgment.

    Posted by Marcia Oddi on Wednesday, December 08, 2004
    Posted to Indiana Decisions

    Law - More on election standoff in Kentucky

    "Stephenson asks Senate to name her the winner: Court ruled she wasn't a resident" is the headline to this story today in the Louisville Courier Journa. Earlier ILB entries on this potential standoff between the Kentucky legislature and courts, involving a newly elected Kentucky state senator who may or may not have been a resident of Indiana and may or may not therefore be ineligible, are available here (12/3/04) and here (11/25/04). Some quotes from today's story:

    FRANKFORT, Ky. — Republican Dana Seum Stephenson formally asked the Republican-controlled state Senate yesterday to declare her the winner in her disputed Jefferson County race against Democratic candidate Virginia Woodward.

    The filing sets up a potential conflict between the Senate and a ruling by a judge who declared Woodward the "de facto winner" of the 37th District race.

    Senate President David Williams, R-Burkesville, said the dispute will be given a fair hearing beginning Jan. 4, the opening day of the 2005 legislative session.

    "We will follow the constitution and the statutes, and we will act as a fact-finder and make a decision, just as the Democrats did in such cases when they were in the majority," Williams said.

    But Jennifer Moore, Woodward's lawyer, said her client plans to show up the first day of the session and press the Senate to seat her as the winner, based on the judge's ruling that Stephenson did not meet a residency requirement. * * *

    In Stephenson's challenge, filed with the Senate clerk yesterday, she claims to be a lifelong resident of Kentucky. And she argues that allowing the court to decide the winner would violate the doctrine of separation of powers.

    "The court has no jurisdiction or authority to decide Stephenson's qualifications. Only this body (the Senate) has the right to determine the qualifications and returns of its members," her application to contest the election says.

    The 22-page appeal — signed by Stephenson and her lawyer, James Milliman — contends that Stephenson has been a legal resident of Kentucky for more than six years and that she "stayed only temporarily in Indiana to obtain her master's degree."

    "She continued to own a house in Kentucky, spent weekends at that house, continued to teach school in Kentucky, maintained church membership and regularly attended services in Kentucky," the filing says.

    Stephenson and Milliman cited a late 1980s precedent when the state House, investigating a similar dispute, decided that a candidate should not be disqualified for technical issues relating to residency.

    In that case, the House decided that the candidate was "certainly familiar with the district and the people. She did all that was possible to adjust her residency and therefore should be seated."

    Posted by Marcia Oddi on Wednesday, December 08, 2004
    Posted to General Law Related

    Indiana Government - More this morning on Daniels' appointments

    This Indianapolis Star has a front page story this morning, bylined by Mary Beth Schneider and Tim Evans, on Gov.-elect Daniels' appointment yesterday of Mitch Roob to head the troubled FSSA. Some quotes:

    E. Mitchell "Mitch" Roob Jr., 43, known as a smart, tough administrator, helped reorganize city departments while working for then-Mayor Stephen Goldsmith and later shook up the Marion County Health and Hospital Corp. That agency oversees Wishard Memorial Hospital, whose patients include the city's poorest, and the Marion County Health Department.

    Daniels said Roob "is deeply committed to the interests of the least fortunate among us and equally committed to getting the most service from every tax dollar." * * *

    Indiana faces an $800 million budget deficit. And like most states, it struggles with rising costs for Medicaid, the national health care program for the poor. Roob said his most immediate challenge would be the Medicaid issue. The second challenge, he said, would be improving child protection services.

    The Star also has an Andrea Neal opinion-piece this morning on Daniels' appointment of Joel Silverman to head the BMV. A quote:
    No appointment in the administration of Gov.-elect Mitch Daniels carries as much symbolic significance as Silverman's. That's because no department of state government is as much a part of our daily lives. If you're one of the 5.5 million who own or operate a vehicle in Indiana, you have to deal with the BMV.

    By appointing the former president and CEO of Galyans to the post, Daniels has implemented a policy change before taking office. He has told citizens that the BMV will not be a government bureaucracy known for long lines and bad service, but a retail business that exists to satisfy customers and shareholders -- in this case, taxpayers.

    Updated Organization Chart. Here is my updated organization chart of Daniels' appointments, so far.

    Posted by Marcia Oddi on Wednesday, December 08, 2004
    Posted to Indiana Government

    Law - Update on Interstate Wine Argument

    Updating our report from yesterday on the interstate wine oral arguments before the U.S. Supreme Court, is this story today by Charles Lane of the Washington Post. Some quotes:

    The states, backed by wholesalers, say that the 21st Amendment, which repealed Prohibition in 1933, permits such laws. It bars importing alcohol into any state "in violation of the laws thereof."

    But Justice Antonin Scalia seemed to reject that assertion when New York State Solicitor Caitlin J. Halligan raised it yesterday, telling her: "I don't think so. I think when you have facial discrimination, the bar's a little higher than that."

    Justice Stephen G. Breyer told Michigan's solicitor general, Thomas L. Casey, "there's not a word" in the history of the 21st Amendment to suggest it was "intended to permit discrimination."

    And Justice Ruth Bader Ginsburg cited a 1984 decision of the court that struck down a Hawaii tax that applied only to imported alcohol. "One thing is certain," Ginsburg read. "The central purpose of [the 21st Amendment] was not to empower states to favor local liquor industries by erecting barriers to competition."

    Perhaps most encouraging for the winemakers and wine drinkers, Justice Sandra Day O'Connor, who dissented from the 1984 ruling, seemed willing to apply it to this case, telling the states' lawyers repeatedly that it "cuts against you."

    The justices seemed especially skeptical of the states' assertions that they may treat out-of-state wine differently because it is easier to enforce drinking-age and tax laws against in-state companies -- and that those laws are crucial to limiting the harm caused by excessive drinking. Almost nothing the states' lawyers said in this regard seemed to convince the court.

    See also this interesting article by Linda Greenhouse of the NY Times, headlined "Justices Pick Apart Ban on Wine Sales From State to State." One example:
    The justices appeared notably unmoved by the arguments offered by New York and Michigan in defense of laws that prohibit the direct shipment of wine from other states while permitting in-state wineries to ship their products to their customers' homes.

    Posted by Marcia Oddi on Wednesday, December 08, 2004
    Posted to General Law Related

    Tuesday, December 07, 2004

    Indiana Government - Daniels Names Former Hospital President to FSSA

    According to a press release issued this afternoon:

    Gov.-elect Mitch Daniels Names Former Hospital President Director of Family and Social Services Administration

    INDIANAPOLIS - Today Governor-elect Mitch Daniels named Edward Mitchell ("Mitch") Roob, Jr. (pronounced Robe) as Director of Indiana's Family and Social Services Administration (FSSA).

    "Mitch is deeply committed to the interests of the least fortunate among us and equally committed to getting the most service from every tax dollar," said Governor-elect Daniels. "He is the best qualified person for the one of the toughest jobs in the state."

    Roob, 43, has extensive experience helping Hoosiers. In 1994, he was appointed the President of the Marion County Health and Hospital Corporation, responsible for the Health Department and Wishard Hospital. During his tenure, Roob developed the Wishard Advantage (a low income health program), the IU Medial Group, and worked to reduce infant mortality without raising taxes. Wishard was named one of the top 100 hospitals in the nation three of the four years Roob served as President.

    "The Family and Social Services Administration touches Hoosiers lives in many ways," said Roob. "We face a great challenge regaining Hoosiers' trust and meeting Hoosiers' needs. Mitch (Daniels) has set the bar high for service and responsibility and I look forward to attaining those goals."

    The Family and Social Services Administration is the largest agency in state government with 9,700 employees and an operating budget that represents roughly one-third of the state budget.

    According to an Indianapolis Star report just posted:
    Under Goldsmith, Roob headed the Department of Transportation in 1992 and 1993. In 1994, he was named president of the Marion County Health and Hospital Corporation. That municipal body oversees both Wishard Memorial Hospital and the Marion County Health Department.

    At Health and Hospital, Roob focused much of his attention on Wishard, the county's publicly funded hospital which is responsible for providing medical care regardless of a patient's ability to pay. He oversaw efforts to make the hospital more patient-friendly, and more capable of competing for patients and the business of companies seeking health-care services.

    But he also oversaw a cost-cutting reorganization of the health department that resulted in 41 layoffs.

    He left that post in 1998 to become president of IWC Services, which was the services division of the Indianapolis Water Co.

    Posted by Marcia Oddi on Tuesday, December 07, 2004
    Posted to Indiana Government

    Indiana Government - Governor-elect Mitch Daniels Names Technology Leader Indiana's Chief Information Officer

    According to a press release issued this afternoon:

    Governor-elect Mitch Daniels Names Technology Leader Indiana's Chief Information Officer

    INDIANAPOLIS - Today Governor-elect Mitch Daniels named business technology leader Karl Browning as Indiana's Chief Information Officer.

    Browning, 56, will lead efforts to better unify state government's information departments.

    "Karl brings unmatched experience in the Information Technology (IT) arena," said Daniels' Chief of Staff Harry Gonso. "The state has never had an IT leader with Karl's proven leadership abilities. His appointment sends another strong signal about the high caliber of people Mitch is bringing to public service."

    Mr. Browning currently serves as Senior Vice President and Chief Information Officer for Golden Rule Insurance. In that position, Karl reduced IT expenses by 20% annually and implemented a performance management system across the IT division. He has more than 30 years of experience in IT and operational management.

    "Currently the state has dozens of separate IT departments which seems redundant and wasteful," said Browning. "Mitch is charting a new course for our state and I couldn't say no when asked to be a part of it."

    As Chief Information Officer, Browning will oversee the reorganization of the state's IT infrastructure.

    [More] Re where does this position fit into the state structure, what I find right now is the Information Technology Oversight Commission and the Division of Information Techology within the Department of Administration.

    In addition, there is the quasi-public Intelenet Commission, recently in the news.

    Posted by Marcia Oddi on Tuesday, December 07, 2004
    Posted to Indiana Government

    Indiana Decisions - 7th Circuit posts four today

    Details maybe later ...

    Tegtmeier, Allen v. Midwest Operat Pension Trust Fund (ND Ill.)

    Filipovic, Momcilo v. K & R Express (ND Ill.)

    Kuqo, Arben v. Ashcroft, John (On Petitions for Review of an Order of the Board of Immigration Appeals)

    USA v. Frazer, David (CD Ill.)

    Before POSNER, KANNE, and EVANS, Circuit Judges.
    EVANS, Circuit Judge. This case concerns an upward
    adjustment under the federal sentencing guidelines that is
    unaffected by the uncertainty created in the wake of Blakely
    v. Washington
    , ___ U.S. ___, 124 S. Ct. 2531 (2004), and
    United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert.
    granted, 125 S. Ct. 11 (Aug. 2, 2004).
    David Frazer pled guilty to a single-count indictment
    charging him with using a telephone to make threatening
    communications in violation of 18 U.S.C. § 844(e). The
    indictment charged that Frazer made two bomb threats, but
    at sentencing the district judge determined that the
    undisputed evidence demonstrated that he made three separate
    threats, so he applied U.S.S.G. §2A6.1(b)(2), which provides
    for a 2-level upward adjustment if the offense involved
    “more than two threats.” Frazer challenges this increase on
    a legal, not a factual basis, so, undeterred by Blakely/
    , we proceed to resolve his appeal. * * *

    Ultimately, the question comes down to whether the second
    or third calls can properly be said to be de minimis.
    Frazer adduces no legal authority for this proposition, and
    we have been unable to find a single case in which a federal
    court found any threat of violence to be de minimis. Furthermore,
    there is no question that all three calls were “true
    threats” under the test of United States v. Khorrami, 895
    F.2d 1186 (7th Cir. 1990). The calls conveyed a message
    that a reasonable person would foresee a recipient interpret
    ing as an expression of intent to cause serious harm. Id. at
    1192. By insisting that the third call was a continuation of
    the second, Frazer is really arguing that what matters is the
    number of communications he intended to make. But the
    test we apply is an objective one. United States v. Schneider,
    910 F.2d 1569, 1570 (7th Cir. 1990). By that measure
    there were three threats.

    Posted by Marcia Oddi on Tuesday, December 07, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Three today from Court of Appeals

    Board of Directors of the Bass Lake Conservancy District v. Susan & John Brewer (12/7/04 IndCtApp) [Municipal Law]
    Baker, Judge

    Appellant-defendant, The [Bass Lake Board], appeals the trial court’s grant of summary judgment in favor of [the Brewers]. Specifically, the Bass Lake Board argues that the trial court erred in determining that it had acted arbitrarily, capriciously and contrary to law in categorizing the Brewers’ residence as a duplex or multiplex under the applicable sewer rate ordinance. Concluding that the trial court did not abuse its discretion in determining that the Bass Lake Board’s actions were arbitrary, capricious and contrary to law in these circumstances, we affirm the grant of summary judgment for the Brewers. * * *

    Notwithstanding the contentions advanced by the Bass Lake Board, we note that the ordinance at issue fails to define the term “duplex” or “multiplex.” Moreover, we have found no Indiana case specifically defining either of these terms. Therefore, we may utilize the definitions of those terms as set out in English language dictionaries, and we may also consider the context in which the terms are used. See Essany, 790 N.E.2d at 151. One such definition of a duplex is as follows: a “two-fold; double; a house divided into two living units.” American Heritage Dictionary, p. 264 (3rd ed. 1994). From this definition, it is apparent that the plain and ordinary meaning of the term “duplex” is a home divided for use by two families. * * *

    In our view, the Bass Lake Board has erroneously relied upon the presence of duplicate household amenities to support its conclusion that the Brewers’ residence is a duplex or multiplex for purposes of sewer rate charges. To be sure, there is nothing in the record to suggest that the Bass Lake Board had any basis for determining that their newly coined term “multiplex” used in the ordinance had any rational relationship to the volume of sewage that the residents in the Brewer household might generate. * * *

    That said, it is apparent that the Bass Lake Board has failed to show a reasonable basis for determining that charging the Brewers a multiplex sewer rate had any rational relationship with user volume. Additionally, inasmuch as the terms “multiplex” or “duplex” are not defined under the ordinance, the evidence presented by the Brewers shows that the residence does not qualify as either within the ordinary meaning of those terms. To be sure, it was reasonable for the trial court to recognize the residence as a single-family dwelling. The rates applied to the Brewers upon the theory that they owned a multiplex residence under the ordinance were not established by the evidence put forth by the Bass Lake Board. In addition to the existence of separate kitchen facilities, the Bass Lake Board decided that the Brewers’ residence should be characterized as a multiplex or duplex under the ordinance simply because it might someday be converted to such a structure. In light of these circumstances, we must conclude that the trial court made a reasonable determination that the Bass Lake Board’s classification of the Brewer residence as a duplex or multiplex was an arbitrary and capricious exercise of its power with regard to the increased sewer rate charges. Therefore, the Brewers have met their burden of proof in establishing that the Bass Lake Board’s increased sewer rate as applied to them was not “just and reasonable” pursuant to Indiana Code section 14-33-5-21. As a result, we conclude that the trial court properly entered summary judgment in the Brewers’ favor.
    The judgment of the trial court is affirmed.
    KIRSCH, C.J., concurs.

    ROBB, J., dissents with opinion.
    I respectfully dissent. The majority concludes that “the Bass Lake Board’s classification of the Brewer residence as a duplex or multiplex was an arbitrary and capricious exercise of its power with regard to the increased sewer rate charges.” I disagree.

    I begin by noting that the Brewers have not challenged the ordinance defining “duplex” or “multiplex” as a whole. They have challenged only the Bass Lake Board’s application of the ordinance to them. Thus, the question is not whether the Bass Lake Board acted arbitrarily or capriciously in enacting the ordinance, but only if it acted arbitrarily or capriciously in applying the ordinance to their structure. And I reiterate, as stated by the majority, that “a trial court may not substitute its own judgment for the municipality’s discretionary authority. That is, the trial court should only determine whether the municipality is acting pursuant to statutory authority.” Slip op. at 8 (citing Farley Neighborhood Ass’n v. Speedway, 765 N.E.2d 1226, 1229 (Ind. 2002)).

    With that in mind, I believe that the Brewers have failed to carry their burden of proving that the Bass Lake Board’s decision was in error. Bass Lake Board has apparently had for some time a standard for what constitutes a “duplex.” It ultimately struck the word “duplex” in favor of the term “multiplex” and reduced the standard to an ordinance. The fact that how the Bass Lake Board has defined a duplex or multiplex is not how the English language dictionaries or the trial court or the majority would define the term is not determinative. Nor is the fact that the area where the Brewers live is zoned only for single-family residences controlling, as the zoning and sewer rate ordinances have different purposes. Although the two ordinances may use the same term, the term can be and is defined differently in order to meet the specific purpose of each ordinance.

    A duplex, and subsequently a multiplex, was defined by the rate-making authority as a residential structure with more than one living area and the existence of separate cooking facilities. As there is no question that the Brewers’ residence had two separate cooking areas, it was a duplex or multiplex as defined by the ordinance, and I would hold that the Bass Lake Board made the appropriate decision in classifying the Brewers’ residence as such and charging the corresponding sewer rate. I would accordingly reverse the judgment of the trial court, and I therefore dissent.

    Nancy A. Naville v. James F. Naville (12/07/04 IndCtApp) [Family Law]
    Baker, Judge
    Appellant-petitioner Nancy Naville appeals the trial court’s order granting Appellee-respondent James Naville’s motion to modify child support. Specifically, Nancy makes five arguments, which we consolidate and restate as follows: the trial court abused its discretion by (1) modifying the parties’ child support order based on a Parenting Time Credit applied to James; (2) applying the Parenting Time Credit to James while simultaneously leaving in place a fifty percent abatement that was awarded to him pursuant to outdated Child Support Guidelines; and (3) modifying the original child support order when James claimed one of the children as a dependent for tax purposes. James argues that the trial court erred by failing to include the amount of uninsured medical expenses for which Nancy is responsible in its order.

    Concluding that the trial court properly modified the original child support order but improperly left the fifty percent abatement in place and failed to indicate in its order the amount of uninsured medical expenses for which Nancy is responsible, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion. * * *

    The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
    KIRSCH, C.J., and BAILEY, J., concur.

    Michelle & Alvie Ellenwine v. Dawn Fairley (12/07/04 IndCtApp) [Medical Malpractice]
    Sullivan, Judge
    Michelle and Alvie Ellenwine (“the Parents”), as parents and natural guardians of Dustin Ellenwine, appeal from the trial court’s grant of summary judgment in favor of Dr. Dawn Fairley on their claim arising out of her alleged malpractice. They present several issues for our review, which we restate as whether the Medical Malpractice Act precluded the filing of a claim to recover damages arising out of the alleged malpractice suffered by Dustin which resulted in his death. We reverse and remand. * * *

    In the case before us, it is true that the Parents could have filed a negligence claim within the two years after the malpractice occurred. However, they chose not to because their son was still alive and the Medical Malpractice Act gave them until his eighth birthday to file. The position argued by Dr. Fairley and accepted by the trial court is that Dustin’s death extinguished all claims. However, such a conclusion does not take into consideration that the Parents are inserting a claim which did not exist until Dustin’s death to replace the claim lost by his death. While it is true that they are separate claims, it is also true that the Parents will be able to recover the medical bills which they must pay because of the alleged malpractice, just as they could have recovered in an action filed on behalf of Dustin, and should not be precluded from collecting additional damages. Moreover, nothing is gained or lost by allowing the Parents to pursue a wrongful death claim at the time in which they did. Had Dustin lived, the Parents would have had nearly six years to file a negligence complaint on his behalf. After Dustin’s death, the Parents filed their proposed complaint within eight months. Thus, any fear of delay in prosecution of the claim or that the Parents were sitting on their rights was not realized.

    We also must address the inconsistency between the manner in which families who have been affected by malpractice would be treated when they have a child who survives past his eighth birthday and a child who dies before his eighth birthday if we were to adopt the position of Dr. Fairley. Assume the same doctor committed the same act of malpractice when two different children were born. Both children survive past their second birthday but one dies before his eighth, just as Dustin, and the other survives past his childhood. Neither set of parents sought to prosecute a claim for malpractice before the child reached two years of age because the parents were relying upon the extended statute of limitations. By sheer happenstance, one set of parents will be able to prosecute their claim and receive compensation for the injuries to their child and resulting expenses and the other set of parents will be precluded from any recovery. Not only will that second set of parents be without their child, they will likely have exorbitant medical bills to pay for that child’s treatment. One set of parents keeps their child and receives some just compensation, the other loses their child and possibly faces financial ruin. The Medical Malpractice Act cannot be read to order such a disparate treatment between similarly situated parents.

    Given these considerations, we hold that the Privileges and Immunities Clause prohibits a reading of the Medical Malpractice Act such that the Parents are precluded from filing a wrongful death claim in place of a negligence claim they could have filed on behalf of their son had he lived. In this case, the Parents have asked that we consider their claim timely filed because it was filed within a reasonable time after their son’s death. Notably, they have not asked that we allow for the filing of a claim until the time in which Dustin would have been eight years old. Their request is in line with the import of the holding of Martin; in essence, a party must be given a meaningful opportunity to bring forth a medical malpractice claim. See also Boggs, 730 N.E.2d at 697; Jacobs v. Manhart, 770 N.E.2d 344, 355 (Ind. Ct. App. 2002), trans. denied. Thus, we hold that the Parents’ claim was brought within a reasonable time after Dustin’s death and the trial court should not have granted summary judgment in Dr. Fairley’s favor upon the ground that the Parents missed the relevant statute of limitations.

    The judgment is reversed. We remand to the trial court for further proceedings not inconsistent with this decision.
    NAJAM, J., and BARNES, J., concur.

    Posted by Marcia Oddi on Tuesday, December 07, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Two today from the Supreme Court

    Afredo D. Ruiz v. State of Indiana (12/7/04 IndSCt) [Criminal Law & Procedure]
    Boehm, Justice

    Afredo D. Ruiz, was sentenced to the maximum of twenty years after pleading guilty to child molestation, a Class B felony. The presumptive sentence for a Class B felony is ten years. Ind. Code § 35-50-2-5 (2004). Ruiz, twenty years old at the time of the crime, had sexual intercourse with a thirteen-year-old girl who described their relationship as boyfriend and girlfriend. The sole aggravating circumstance was Ruiz’s four prior alcohol related misdemeanors. We hold that Ruiz’s sentence is inappropriate in light of the lack of more severe aggravating circumstances and the non-violent nature of the offense. We revise the sentence to the presumptive sentence of ten years. * * *

    Article VII, Section 4 of the Indiana Constitution provides that “the Supreme Court shall have, in all appeals of criminal cases, the power to . . . review and revise the sentence imposed.” Indiana Appellate Rule 7(B) implements that authority by stating that “[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), which held that facts supporting an enhanced sentence must be admitted by the defendant or found by a jury. We direct revision of the sentence to the presumptive sentence solely on state law grounds, in exercise of our authority to revise a sentence found to be inappropriate. Accordingly, no Blakely issue is presented or addressed. * * *

    Although appellate courts are reluctant to substitute their judgments for those of the trial court in sentencing, sentences are reviewed to ensure they are not “inappropriate in light of the nature of the offense and the character of the offender.” App. R. 7(B); Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). The presumptive sentence is the starting point the General Assembly has selected as an appropriate sentence for the crime committed. Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002). Here the presumptive sentence was doubled from ten to twenty years, based on unrelated and relatively insignificant prior convictions. We conclude that neither the nature of the offense nor the character of the offender supports an enhanced sentence.

    Conclusion. We remand for new sentencing to a term of ten years. We note that Ruiz is under detention order as an illegal alien and presumably will be deported after serving his sentence.
    Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

    Lydia Escobedo, et al v. BHM Health Associates, Inc., AAA Home Care LLC/Rocky Mountain Home Care, et al (12/7/04 IndSCt) [Corporations]
    Sullivan, Justcie
    Employees of BHM Health Associates, Inc., a now-defunct corporation, seek to “pierce the corporate veil” and recover two weeks’ unpaid wages from BHM’s individual shareholders. We affirm the trial court’s judgment that there is no basis under the law for “piercing the corporate veil” here because the evidence does not meet the two-prong test that the corporate form was so ignored, controlled, or manipulated that it was merely the instrumentality of another and that the misuse of the corporate form would constitute a fraud or promote injustice. * * *

    Shepard, C.J., and Dickson, J., concur. Boehm, J., concurs with separate opinion. Rucker, J., concurs in result.

    Boehm, J., concurring.
    I concur in the majority’s holding that facts sufficient to pierce the corporate veil are not established. The Court of Appeals reversed the trial court on the basis that it would be inequitable to permit the corporate officers to escape liability for discharging a liability they had guaranteed as individuals, if it had the effect of diverting limited assets otherwise available for other creditors, including the plaintiffs. I agree that the facts as found by the trial court would support such a theory of recovery except for one point. The debt discharged was to the Internal Revenue Service for past payroll taxes. If the nature of that obligation rendered the IRS a preferred creditor vis-à-vis claims for wages for the period immediately preceding collapse of the corporation, the plaintiffs here suffered no loss by the payment of the debt to the IRS. Perhaps this was the reason no theory of self dealing by corporate officers or directors, breach of fiduciary duty, fraudulent transfer or fraud on creditors was advanced. In any event, the facts are sufficiently murky that I concur in affirming the trial court.

    Posted by Marcia Oddi on Tuesday, December 07, 2004
    Posted to Indiana Decisions

    Law - Interstate wine issue argued today before the U.S. Supreme Court

    Nina Totenberg had an excellent summary of the issues this morning on NPR's Morning Edition. Listen to it here. The description:

    The Supreme Court hears a case today that will decide whether small vineyards will be allowed to sell wine over state lines. Two Constitutional provisions are in the balance: the commerce clause that prevents one state from erecting economic barriers to products from another state; and the 21st Amendment, which repealed Prohibition and gave states broad authority to regulate the sale of alcoholic beverages within their borders.
    Here is another NPR report to listen to, this one from yesterday's Day to Day.

    Charles Lane of the Washington Post had a comprehensive article on this Sunday, titled "Small Wineries Find Ally On Interstate Shipping: But States and Wholesalers Oppose Direct Selling."

    The Indiana Law Blog has been covering this issue from the beginning. Here is what looks to be the first entry, from 7/26/03.

    More: 8/29/03; 9/15/03; 12/22/03; 2/12/04; 5/24/04.

    See this site, self-described as "the home page for documents relating to the litigation concerning the constitutionality of state laws prohibiting the direct shipment of wine to consumers. It is maintained by James A. Tanford, one of the attorneys involved in the litigation." As noted in earlier Indiana Law Blog entries, Professor Tanford teaches at IU Law-Bloomington and represented plaintiffs-appellees in the first of these cases to be argued before a circuit court, the 7th Circuit, in Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000) (upholding an Indiana statute restricting the direct shipment of wine on the ground that it was a permissible expression of the state’s authority under section 2 of the Twenty-first Amendment). Prof. Tanford is a counsel of record in today's U.S.S.C. arguments.

    Indiana is one of 33 states signing on to a brief supporting the State of Michigan filed by 33 state attorneys general. (Available here via Prof. Tanford's site).

    See this Findlaw.com site (scroll down to Dec. 7th) for all the documents in these three intersatate wine cases: Jennifer M. Granholm, Governor of Michigan, et al. v. Eleanor Heald, et al.; Michigan Beer & Wine Wholesalers Ass'n v. Eleanor Heald, et al.; and Juanita Swedenburg, et al. v. Edward D. Kelly, Chairman, New York Div. of Alcoholic Beverage Control, State Liquor Auth., et al.

    Posted by Marcia Oddi on Tuesday, December 07, 2004
    Posted to General Law Related

    Monday, December 06, 2004

    Indiana Government - [Updated] Daniels Likely to Answer Critics of Appointments

    "Daniels Likely to Answer Critics of Appointments" is the heading to this Jim Shella report on the WISH TV 8 news site. Some quotes:

    Mitch Daniels is learning, as if he didn’t already know it, that criticism is hard to avoid. Daniels has made a series of appointments that have made him proud (he called the selection of Mickey Maurer for a top economic development post a “coup”) and have won praise from a variety of sources, including Republicans and Democrats, as well as editorial writers. And yet not everyone is happy.

    The criticism has two major themes. First, that while Daniels has lured business professionals with sterling credentials to government service, state government is not a business. The critics say that government experience is important. * * *

    The other criticism is that the Daniels appointments represent a lack of diversity and represent only the business elite from Central Indiana. In fact, Daniels has appointed just one woman, Deputy Chief of Staff Ellen Whitt, since Election Day. It is worth pointing out, however, that he chose Lieutenant Governor-elect Becky Skillman and Secretary of Commerce designee Pat Miller during the campaign. By my count, that makes four women out of ten appointees. Nevertheless, minority representation is still lacking.

    Interestingly, even Shella is wrong. Daniels' fourth appointment, as reported here in the Indiana Law Blog on Nov. 27th, was Debra Minnot, to head State Personnel. In my opinion, this, along with the Budget Agency spot, are the two most important positions in state government, particularly if one is interested in change. From the Ft. Wayne Journal Gazette story:
    Gov.-elect Mitch Daniels announced Debra Minott, who was once general counsel and secretary of Fort Wayne’s 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 we’ve said that we would bring a new crew with unprecedented abilities and a fresh outlook, and you are seeing that start to take shape.”

    Why is the local press unaware of this appointment? Perhaps because Ms. Minott was recently based in Ft. Wayne. Or perhaps because her appointment was released on Thanksgiving eve.

    Organization chart. Here again is the useful organization chart of the Daniels' administration, so far, that I first posted this weekend. Access it here. The only "announcement" since this first draft of the chart was this brief entry (2nd item) in the Sunday Star that begins:

    Daniels' assistant returns. It took Maggie Ban just 10 seconds to tell Mitch Daniels "Yes!" Ban, who worked as Daniels' assistant at Eli Lilly and Co. for nine years, now will be his senior assistant in the governor's office.

    "I didn't even have to think about it," said Ban, 57, who lives in Carmel. She's now senior executive assistant to Lilly Chairman and CEO Sidney Taurel. She'll retire at the end of this month after 39 years with Lilly.

    Before Daniels even ran for governor, she was one of the loyal supporters who posted her pleadings on www. draftmitchdaniels.com. She wrote: "He can make tough decisions, and Indiana will be a better place to live because of him. Come back to Indiana, Mr. D!"

    [Update 12/7/04] The Indianapolis Star reports today, in a story titled "New economic chief to keep jobs," that:
    Michael "Mickey" Maurer, a top Indiana businessman who will soon be in charge of helping grow the state's economy, says he won't give up his private-sector jobs while doing the people's business.

    But, he said Monday, he'll avoid potential conflicts of interest in his new job in the administration of Gov.-elect Mitch Daniels by fully disclosing his business ties and stepping aside from any decision that would directly benefit him or his businesses.

    Maurer is an attorney, chairman of the National Bank of Indianapolis and chairman of IBJ Corp., which owns several publications, including the Indianapolis Business Journal.

    The Indiana Economic Development Corporation law, found at IC 4-1.5, is currently in a state of flux (see, eg. 4-1.5-4, membership), and presumably will be changed further during the 2005 legislative session. Currently, as far as I can see, there is no such statutory position as "President of the Indiana Economic Development Corporation (IEDC)." But it may be created during this session. See also these general ILB comments here.

    Posted by Marcia Oddi on Monday, December 06, 2004
    Posted to Indiana Government

    Indiana Decisions - 7th Circuit posts four today

    Boriboune, Souvannas v. Berge, Gerald (WD Wis.)

    Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
    EASTERBROOK, Circuit Judge. Four inmates of Wisconsin’s
    top-security prison filed this suit under 42 U.S.C. §1983 and
    asked the district judge to allow them to proceed in forma
    pauperis under 28 U.S.C. §1915. Although Fed. R. Civ. P. 20
    authorizes the joinder of these claims and parties, the
    district judge dismissed the complaint before the defendants
    had been served with process, and without reaching the
    merits. * * *

    Instead of adopting a no-joinder rule, the district court
    should have ensured that each of the four prisoners was
    assessed one full filing fee under §1915(b)(1). District judges
    may think it sound to alert prisoners to this requirement—
    as well as the risk under Rule 11 and §1915(g) that they
    will be held accountable for their co-plaintiffs’ claims—and
    give them an opportunity to drop out. Complaints about
    prison-wide practices do not require more than one plaintiff.
    Complaints with a common core plus additional claims by
    different prisoners increase each plaintiff’s risks under Rule
    11 and §1915(g) without a corresponding reduction in the
    filing fee; many prisoners will opt to litigate by themselves
    once they understand this, and the process will simplify
    litigation as the district judge hoped her approach would do.
    This can be accomplished, without any insult to Rule 20, by
    ensuring that prisoners understand how Rule 11,
    §1915(b)(1), and §1915(g) work together.

    Hunt-Golliday, Pasha v. Metro Water (ND Ill.)
    Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
    KANNE, Circuit Judge. Pasha Hunt-Golliday filed a
    complaint in federal court stating that she was wrongfully
    terminated as an employee of the Metropolitan Water
    Reclamation District of Greater Chicago (the “District”). She
    alleged violations of both the Americans with Disabilities Act
    (ADA) and the Civil Rights Act. The district court dismissed
    her case for failure to state a claim upon which relief may
    be granted. We affirm.
    Diamond Plating Co v. USA (SD Ill.)
    Before BAUER, MANION, and EVANS, Circuit Judges.
    BAUER, Circuit Judge. Plaintiff-Appellant Diamond
    Plating Company, a manufacturing company that applies
    chrome and nickel plating to metal products, failed to
    timely file its employment tax returns for 1998 and 1999
    and failed to timely deposit and pay its corresponding tax
    liability. Diamond Plating tardily filed the returns in 2000,
    and paid the taxes and interest over the next two years. The
    IRS assessed penalties against Diamond Plating for failure
    to timely file returns, failure to timely deposit taxes, and
    late payment of taxes. Diamond Plating paid a portion of
    the penalties, and then requested a refund and abatement,
    asserting that financial difficulties caused by the loss of a
    major customer justified its noncompliance. After the IRS
    Commissioner denied the request, Diamond Plating filed
    suit for a refund of the already paid penalties and for
    abatement of the remaining penalties. The district court
    granted summary judgment in favor of the government. We
    Lewis, Peter v. Sternes, Jerry (ND Ill.)
    Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Peter Lewis filed a petition for a
    writ of habeas corpus contending that his Illinois conviction
    for residential burglary should be vacated based on several
    alleged constitutional violations. The district court dismissed
    his petition, concluding that Lewis had procedurally
    defaulted each of his constitutional claims and that federal
    review of these claims was therefore barred. We agree and

    Posted by Marcia Oddi on Monday, December 06, 2004
    Posted to Indiana Decisions

    Indiana Decisions - One today from Court of Appeals

    Steven V. Wright v. State of Indiana (12/6/04 IndCtApp) [Criminal Law & Procedure]
    Baker, Judge

    Appellant-defendant Steven Wright appeals from his convictions for Neglect of a Dependent, a class B felony, and Battery, a class B felony, and from the sentence imposed for those offenses. Specifically, Wright contends that (1) there was insufficient evidence to support the convictions; (2) the trial court did not properly balance the aggravating and mitigating factors at sentencing and that it erred in imposing consecutive sentences; and (3) the sentence imposed by the trial court was inappropriate in light of the nature of the offense and the character of the offender. Finding that there was ample evidence to support Wright’s convictions and finding no sentencing errors, we affirm. * * *

    This litany of brutal acts and the extent and severity of the children’s injuries more than justify the trial court’s imposition of enhanced and consecutive sentences. This sentence is entirely appropriate in light of the nature of the offense and character of the offender. The judgment of the trial court is affirmed.
    SHARPNACK, J., and FRIEDLANDER, J., concur.

    Posted by Marcia Oddi on Monday, December 06, 2004
    Posted to Indiana Decisions

    Law - Another story on the attorney who won two cases before the high court this year

    On Nov. 27th the ILB quoted from a July 2004 CNN story about Jeff Fisher 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."

    Yesterday the LA Times had a similar story, headlined: "Most attorneys work their entire careers without appearing before the U.S. Supreme Court. Jeffrey Fisher won two cases before the high court this year at the unheard-of age of 33." Some quotes:

    Jeffrey Fisher worked at Davis Wright Tremaine, a medium-sized Seattle law firm. Until last year, he had spent most of his time assigned to civil litigation cases, which are the bread-and-butter of law firm practice. Now, he might be one of the most influential lawyers of his generation.

    This year, Fisher won two historic U.S. Supreme Court cases. Blakely vs. Washington may well have a bigger influence on the criminal justice system than any case in the last 20 years. The court's decision already has impacted the sentencing schemes of more than a dozen states and could presage the end of federal sentencing guidelines. The ruling in Crawford vs. Washington was almost as radical, precluding the admission of most statements from witnesses who aren't subject to cross-examination, thereby ending many domestic violence prosecutions.

    Litigators sometimes work 20 or 30 years before getting a first—and often last—chance to argue a Supreme Court case. But when Fisher stepped to the podium in the fall of 2003 to argue the Crawford case, he had been eligible to practice before the high court for less than six months. Crawford and Blakely were the first criminal cases he had ever argued.

    Two wins in the Supreme Court in a single term—"That's nothing short of extraordinary," says Drew S. Days III, U.S. solicitor general during the Clinton administration. That sentiment is shared by U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt, for whom Fisher clerked: "I doubt anyone has ever, at this early stage in his career, argued and won two cases like these."

    Posted by Marcia Oddi on Monday, December 06, 2004
    Posted to General Law Related

    Indiana Government - Farm Bureau pushes for central office for state�s farmers

    "Farm Bureau pushes for central office for state’s farmers" is the headline of a story posted yesterday by the Fort Wayne Journal Gazette, that gives some pros and cons of such a reorganization.

    Posted by Marcia Oddi on Monday, December 06, 2004
    Posted to Indiana Government

    Sunday, December 05, 2004

    Environment - Sellersburg saves millions on sewer system

    "Sellersburg saves millions on sewer system" is the headline to an interesting story yesterday in the Louisville Courier Journal. Some quotes:

    A businessman and former elected official in Sellersburg has saved the town millions of dollars in potential costs related to a sewer expansion, according to members of the current Town Council.

    Ken Alexander, who owns a gas station and convenience store in nearby Memphis, was hired in January to be Sellersburg's utility administrator, a new position that pays $41,000 a year. * * *

    Alexander's total pay from the town now is $71,000 a year. He also has a $30,000 annual contract to do storm-water and drainage work.

    The annual payments eclipse the salary of any employee in Sellersburg, but council members said Alexander's work has been worth the cost.

    Although he doesn't have formal training in wastewater treatment, Alexander helped come up with a $4.5million plan to expand the town's ailing sewer plant, which is under pressure from state regulators to comply with sewer-discharge regulations.

    A previous plan created by a St. Louis-based company and a team of engineers and construction experts would have cost as much as $13million. Doug Reiter, the council president, said that plan would have offered lower overall sewer capacity at a substantially higher cost. * * *

    Alexander said he scrutinized the town's existing system, then reviewed sewer facilities in 15 to 20 other communities. He presented the findings to an engineering firm, he said, and came up with dramatically lower costs.

    For example, he said, the original plan called for $1million to be spent on a belt-press system that extracts liquid from sewage. By buying reconditioned equipment and using smaller facilities, Alexander said, the same job under his plan will cost about $125,000.

    The original plan also called for special retention basins to be built near the plant. Under the new plan, Alexander said, sewage will flow directly into the plant with no reservoirs. He said the plant's overall capacity will rise to 2.4million gallons per day, up from the current 1.5million gallons. * * *

    The new sewer plan has received preliminary approval from the Indiana Department of Environmental Management, Alexander said, and construction could begin in March. It would be funded through higher tap-in fees for new customers and from the town's portion of Clark County's new income tax.

    Alexander said his contract for the storm-water work also is saving money because the town previously paid an engineering firm about $100,000 a year to do the work.

    Alexander said the sewer and storm-water work is "not rocket science," but he said engineers could be hired on a temporary basis to handle complicated aspects of the job.

    Posted by Marcia Oddi on Sunday, December 05, 2004
    Posted to Environment

    Indiana Courts - A day in town court

    The Munster Times has a story today titled "A day in town court." Some quotes:

    SCHERERVILLE | They trooped in at the 3 p.m. court call.

    One after another, in jail blues, handcuffs and nickel-plated leg irons, with an officer in front of them, and another at the rear. The five men came through the back door of the Schererville Town Court and sat on stiff-backed chairs against the wall, awaiting the entrance of Judge Kenneth Anderson.

    That's a regular day in the life of the judge who holds court every Tuesday. The court handles traffic tickets, misdemeanors and ordinance violations.

    Posted by Marcia Oddi on Sunday, December 05, 2004
    Posted to Indiana Courts

    Indiana Government - More on Daniels' early appointments

    Lesley Stedman Weidenbener of the Louisville Courier Journal has a story today headlined "Daniels busy luring businessmen to public service."

    Organization chart. I have prepared a useful organization chart of the Daniels' administration, so far. Access it here.

    The Indianapolis Star has a long and interesting front-page interview today with Gov.-elect Daniels. A quote:

    Q: You ran your campaign, though, so how good are you at delegating and living with the decisions that other people make?

    A: You have to think carefully about this. I'd assert I didn't run the campaign in the way some people might try to do. I didn't decide which county fairs we went to, what color the T-shirts were. . . .

    That would have been micromanagement. I did try to make fundamental choices for my campaign. . . .What I perceive doing in state government is having what amounts to a contract with each major department, where we will agree what our priorities and our major goals are and how we are going to know if we are achieving them or not. Literally, what are we going to measure?

    Is it how long permits take to get out the door? Is it how long the lines at the license branch are? . . . Is it how many foster children are safe at the end of the year, and how few families they had to rotate through? . . .

    I'll never know or have time to know the best way to achieve these goals. You've got to get the best people you can. They've got to figure out the 'how.' I simply want to set the 'what' and check the 'whether,' the 'how well.'

    Q: For most of your appointments you have selected people with no experience in state government. Do you have a mistrust of people with state government on their resumes, fearing they are resistant to change?

    A: You can look for a lot of people who are coming to government for the first time. But they'll tend to be people who are proven leaders and successes in other lines of work.

    Now, I have a great regard for people in public service. But don't lose sight of the fact that our party's been in the wilderness a long time, and there are not a lot of people available who have served in state government. But we'll look for a blend.

    I will say that when your whole reason for running is to change things in a major way, you do have to be careful about people who might be settled in to conventional ways of doing business.

    Posted by Marcia Oddi on Sunday, December 05, 2004
    Posted to Indiana Government

    Saturday, December 04, 2004

    Indiana Government - More on Trump Casino Contract

    According to an AP story yesterday (reported in this ILB entry):

    The Indiana Gaming Commission has agreed not to award a final contract allowing Donald Trump's casino company to operate a casino in Orange County until the deal is reviewed by Gov.-elect Mitch Daniels, the Daniels team said yesterday.
    However, today's papers contain say that is wrong. Lesley Stedman Weidenbener has a report in the Louisville Courier Journal, headlined "Casino deal won't be delayed: Regulators reject Daniels' request." Some quotes:
    INDIANAPOLIS — Saying they are a commission independent of politics, state gambling regulators declared yesterday they will work to complete plans for a French Lick casino despite Gov.-elect Mitch Daniels' request that they hold off until he takes office.

    The Indiana Gaming Commission's executive director, Glenn Lawrence, said he plans to sign a contract with Trump Hotels and Casino Resorts if final agreements are reached among the state, the company, local officials and two historic hotels that will be adjacent to the casino.

    However, the contract might not be ready to sign before Daniels' inauguration on Jan. 10, regulators acknowledged during a public meeting yesterday in Rising Sun.

    At the meeting, Lawrence denied that he ever agreed to hold off signing the contract until the Daniels administration has a chance to review it.

    If all the parties "reach agreement, then my commission has directed me to execute the contract and I think if it's in the best interest of the state of Indiana, that's what I'll do," Lawrence said after the meeting. * * *

    Indiana Gaming Commission Chairman Donald Vowels said, however, that Daniels may get his wish for a delayed contract simply because several details necessary to complete an agreement remain unresolved. Still, he said Lawrence has the authority to sign a contract if an agreement is completed. "We have to stay the course," Vowels said. "It may be quite realistic that nothing will occur before Jan. 10 anyway."

    Lawrence plans to resign, effective Jan. 9.

    Speaking yesterday in Indianapolis, Daniels said that he believes his administration should get to review the contract, especially given Trump's current financial woes. The company is awash in debt and has filed a reorganization plan in bankruptcy court.

    Gaming commission officials maintain that the bankruptcy should not derail the project and Lawrence said yesterday that Trump has obtained almost all the permits necessary for construction.

    Still, Daniels said that "one unelected bureaucrat" shouldn't be making the final call on a contract this large with so many financial questions. * * *

    State Rep. Jerry Denbo, a French Lick Democrat who pushed the project through the General Assembly, said yesterday he has no problem with the Daniels administration's request to postpone a contract decision until after he takes office. He said he welcomes Daniels' review of Trump's financial situation to ensure that the deal can be completed.

    But state Sen. Johnny Nugent, R-Lawrenceburg, said the commission should be allowed to continue its work unabated. "The Indiana Gaming Commission is an independent body that operates in a bipartisan atmosphere," he said. "I would think we would want them to continue on with their business."

    The gaming commission's executive director is appointed by the governor but is responsible to the commission members. Pointing to the commissioners, Lawrence said yesterday, "These are my bosses."

    Commission members are appointed by the governor and serve four-year terms. Under state law, the governor can't remove a member from office unless he finds the member has neglected his duties or has committed a crime or fraud.

    That makes the gaming commission different than some other state boards, whose members serve at the will of the governor.

    "It has always been my belief, my understanding, that the commission is an independent commission," Lawrence said.

    Jon Laramore, chief counsel to outgoing Gov. Joe Kernan, yesterday reiterated that independence. Under state law, "it is the gaming commission that has the duty to select an operating agent for the riverboat in Orange County," Laramore's letter said. "Neither Gov. Kernan nor anyone in the governor's office participated in the process of selecting or negotiating with Trump."

    Also check this story by Indianapolis Star reporter Michele McNeil :
    Lawrence, who has been negotiating with Trump Hotels and Casino Resorts, is expected to step down before Daniels takes office. After Jan. 10, [the Indiana Gaming Commission's executive director, Glenn Lawrence] said, the new administration "can do as they please."

    But Daniels, who expressed concern about the company's financial situation, said such a significant decision shouldn't be made by "one unelected bureaucrat," referring to Lawrence.

    "A deal that big, that uninspected, should not be hastily rushed through at the 11th hour," Daniels warned Friday.

    Last month, Trump's casino company filed for bankruptcy protection to get out from under $1.8 billion in debt. Four months earlier, the Gaming Commission had voted 4-2 to award the debt-ridden company the lucrative 11th casino license. The General Assembly granted French Lick the final riverboat license in 2003 after a 10-year legislative effort by local residents.

    Lawrence said he, his staff and the commission have spent the past year and a half on this deal, exhaustively reviewing every detail to make sure Trump's finances could support the project. Even with the bankruptcy filing, the project is on track, Lawrence said.

    Trump's Indiana counsel, Greg Hahn, said that as soon as he learned of Daniels' concerns, he offered to sit down with the new administration and explain the details.

    "We don't think there are any issues at all," he said. "But we have reached out to them."

    Hahn said the casino project is on schedule, with groundbreaking planned for the first quarter of the year. In the meantime, a contract could be signed by Jan. 10, Hahn said.

    "We've invested thousands of dollars every day in reliance upon getting all these contracts done," Hahn said.

    Local residents don't want bickering between administrations to jeopardize the project.

    Rep. Jerry Denbo, D-French Lick, said that if Daniels wants the commission to wait, members should consider it.

    "This is such a high-profile project, I can see why he would be concerned," said Denbo, who fought for years in the legislature to win a casino for his economically depressed hometown. "I'd rather be cautious and he be satisfied than worry about things later."

    What does the law say? The Indiana Gaming Commission is a state agency created by IC 4-33-3. It consists of seven members appointed by the governor. No more than 4 of the members may be of the same political party. The terms of these part-time commissioners are 3 years, and their terms are staggered. The members receive per diem and travel for their service. Sec. 11 provides:
    A member of the commission may be removed by the governor for any of the following reasons:
    (1) Neglect of duty.
    (2) Misfeasance.
    (3) Malfeasance.
    (4) Nonfeasance.
    Thus, the commissioners serve for fixed terms and may be removed by the governor for cause. On the other hand, Sec. 18 provides that:
    (a) The governor shall appoint the executive director of the commission to serve at the pleasure of the governor. The executive director's compensation shall be approved annually by the governor under IC 4-12-2.
    (b) The executive director shall perform the duties assigned to the executive director by the commission.
    (c) In addition to any salary paid under this section, the executive director is entitled to reimbursement for traveling expenses and other expenses actually incurred in connection with the executive director's duties, as provided in the state travel policies and procedures established by the department of administration and approved by the budget agency.
    Executive Director Lawrence, who the stories say plans to resign Jan. 9, 2005, is on the list of 150 people who received a letter from Gov. Kernan asking that they submit their resignations (see this ILB entry from Nov. 20th). The 5 gaming commissioners are not on that list.

    Looking at another "commission" for contrast with the gaming commission, the Indiana Utility Regulatory Commission (URC) (IC 8-1-1) has 5 full-time commissioners, no more than three of whom may be of the same party. The members of "shall be appointed by the governor from among persons nominated by the nominating committee in accordance with the provisions of IC 8-1-1.5." The members are appointed by the governor for four-year staggered terms, and "members may be removed at any time by the governor for cause." Interestingly (or perhaps inexplicably), all 5 members of the URC were on the list of 150 who received letters from Governor Kernan requesting their resignations.

    Overview. The recent efficiency commission reports point out that there is little in the way of consistency in the way state agencies are formed. I have talked about executive branch organization in detail in the past, and trace the history and rationale of state agency formation since the 1933 Executive Reorganization in my paper, "Maintaining the balance of power between the legislative and executive branches of Indiana state government post-1941." (Check here for further information.) I strongly recommend the paper to you; every major political change in state administrations has raised similar issues.

    Essential, in my opinion, to any effictive reorganziation of state government is assuring that the constitutional responsibilities of the governor: (1) in administering the executive branch of state government and (2) in taking care that the laws are faithfully executed, are adequately reflected in the statutory framework.

    Posted by Marcia Oddi on Saturday, December 04, 2004
    Posted to Indiana Government

    Friday, December 03, 2004

    Indiana Decisions - Report on oral argument yesterday in Evansville police pension case

    As noted in this ILB entry on Wednesday, the Indiana Supreme Court on Thursday heard oral arguments in Fraternal Order of Police v. Evansville.

    The Evanville Courier & Press today has a story on the argument, reported by Jennifer Whitson. Some quotes:

    INDIANAPOLIS - Both sides of a lawsuit about whether the city of Evansville owes retired police officers thousands of dollars in extra pension pay went before the Indiana Supreme Court on Thursday to argue their case. The lawsuit began in 1999 and centers on the salary used to figure police pensions. * * *

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to Indiana Decisions

    Indiana Government - Gov.-Elect Daniels appoints BMV and IEDC heads

    Per a press release today:

    Governor-Elect Mitch Daniels Names Two Indiana Business Leaders to Top State Positions

    INDIANAPOLIS - Today Governor-elect Mitch Daniels filled two top positions in his administration with two prominent Indiana business leaders.

    Daniels announced that former Galyan's President and CEO Joel Silverman will serve as Commissioner of the Bureau of Motor Vehicles (BMV) and The National Bank of Indianapolis and IBJ Corporation Chairman Michael ("Mickey") Maurer will serve as President of the Indiana Economic Development Corporation (IEDC).

    "As I have said from day one, we are not going to tinker around the edges changing state government and these appointments, along with Pat Miller, Chuck Schalliol, Harry Gonso, and others, show our commitment to that core belief," said Governor-elect Daniels. "Our team is filling with people whose lives and resumes are more than complete without a stint in public service, but they agreed to join our team because of the historic opportunity for change in our state."

    Joel Silverman - BMV Commissioner. Joel brings a retailer's eye to the state's most visible agency. Joel served as Galyan's President and CEO from 1997 to 2002. During that time, the company expanded its number of stores fivefold and experienced a near tenfold increase in sales. Prior to joining Galyan's, Joel worked for 19 years with The Limited. He began his career with Federated Department Stores.

    "I never expected to work in government, but Mitch's business approach to reform was impossible to resist," said Silverman. "The Bureau of Motor Vehicles is the retail face of state government and I look forward to implementing Mitch's plan to improve convenience, efficiency, and customer service."

    Michael ("Mickey") Maurer - President of the Indiana Economic Development Corporation. Mickey brings more than 30 years of business experience to the position of IEDC President. Mickey was a pioneer in the initial development and operations of cable television systems in the early 1970's. He was a practicing attorney in Indianapolis for 20 years. He is President and CEO of a film production company. And, he serves as Chairman of the National Bank of Indianapolis, a financial institution he founded in 1993. Mickey offers a wealth of business experience to Hoosier businessmen and woman.

    As President, Maurer will work with IEDC CEO Pat Miller on strategies to create jobs and grow Indiana's economy.

    "This is a time when we can make a lasting difference in our state," said Maurer. "Many politicians talk about running government more like business, but Mitch is recruiting an all-star team to accomplish it. Hoosiers cannot waste this rare opportunity. I am honored Mitch asked me to play a role in it."

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to Indiana Government

    Indiana Decisions - 7th Circuit posts one today

    USA v. Montgomery, Valentin (ND Ill.)

    Before BAUER, KANNE, and WOOD, Circuit Judges.
    WOOD, Circuit Judge. Each Labor Day weekend, Rockford,
    Illinois, hosts its annual “On the Waterfront” event, which
    organizers proudly describe as “the grand-daddy of summer
    festivals.” In September 2002, the event lost its festive
    character for Valentino Montgomery when a police officer
    noticed a handgun protruding from his pocket. Ultimately,
    he was arrested and convicted for being a felon in possession
    of a firearm, in violation of 18 U.S.C. § 922(g)(1). On
    appeal, Montgomery challenges his conviction on three
    grounds, none of which we find persuasive. We therefore

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Transfer list for week ending December 3, 2004

    Here is the Indiana Supreme Court's transfer list for the week ending December 3, 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: Marsha Ledbetter v. Robert Hunter, et al. (6/29/04 IndCtApp) [Medical Malpractice; Constitutional Law]. Access the now-vacated Court of Appeals decision here, and the ILB summary here (near the end). A contemporaneous newspaper report is available here, that begins: "The Indiana Court of Appeals has struck down a section of the state's medical-malpractice law that limited when a lawsuit could be filed on behalf of a child injured in a medical procedure."

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to Indiana Transfer Lists

    Economic development - Different models for city-wide internet service

    A headline yesterday in the NY Times read: "Pennsylvania Limits Cities in Offering Net Access." Some quotes from the beginning of the Times story:

    In a victory for Verizon Communications, a measure in a new Pennsylvania law will make it harder for cities to build high-speed Internet networks that compete with major telecommunications providers.

    The measure, part of a broad telecommunications law that was signed late Tuesday by Gov. Edward G. Rendell, has been watched closely by telephone companies and cities across the country. The industry and municipal governments have increasingly found themselves at odds, as cities try to spur the growth of high-speed Internet access by building their own networks - often in competition with the dominant local phone company.

    Under the new law's Internet provision, cities in Pennsylvania that want to build their own high-speed data networks must first give the main local phone company the right to build such a network within 14 months. If the phone company proceeds, the city must drop its plans to build a broadband network.

    NPR had a report on Verizon's efforts earlier this week. The description: "Philadelphia wants to hook up the entire city with high-speed, wireless Internet access in order to spur economic development. But Verizon has successfully backed a state bill that would make it illegal for any government entity in to compete with the telecom company in providing high-speed Internet service."

    The San Jose Mercury News has a column today titled "Just try to stop the coming flood of wireless Internet services." Some quotes:

    Verizon, the local phone company and DSL provider in much of Pennsylvania, took offense. Why should we spend hundreds of millions of dollars to upgrade our network, the company argued, if we face subsidized government competition?

    The dispute landed in the state legislature, which essentially took Verizon's side in a complicated bill that -- among other things -- effectively said cities in Pennsylvania couldn't build fee-supported broadband networks without first obtaining Verizon's permission.

    Gov. Ed Rendell signed the bill into law Tuesday evening, a few hours after Verizon and Philadelphia officials hammered out an agreement that Verizon wouldn't seek to block the city's WiFi project, due to launch in 2006. Other cities in the state got no such exemption.

    While an impressive display of lobbying power, Verizon is trying to hold back the ocean with a bucket.

    But then the column goes on to make an unexpected point:
    Wireless networks are much, much cheaper to build than conventional wired phone or cable systems, which require digging up streets or putting up poles.

    The costs are so low that many homes could soon have several choices for high-speed wireless Internet service.

    Those choices won't come from government, but from the private sector.

    Several cities in Indiana are considering the benefits of community-wide wireless access. The Munster Times today has a story about Highland's plans. The Indianapolis Star had a story Nov. 8, headlined "Public buildings may go wireless: City negotiating with SBC, others to make Wi-Fi Internet service available next year." Some quotes from that story:
    Mayor Bart Peterson confirmed the city is negotiating with SBC Communications and others to provide the wireless service, known as Wi-Fi, in public buildings. * * *

    Officials said they don't know which buildings and sites would be covered and what, if anything, the service would cost computer users.

    But the Peterson administration acknowledged SBC has aggressively pushed its FreedomLink network, a subscriber-based service that costs $19.95 a month and is already in place elsewhere in Indiana.

    Some computer users who link up with the city's hodgepodge of wireless Internet access points, known as "hot spots," said they would welcome a Wi-Fi expansion into public places. Some said they are wary of letting a single company dominate the market. * * *

    Parks are already "lit up" with access in New York and Austin. Libraries are wireless in Seattle, Memphis, Tenn., and Houston. Philadelphia is considering a $10 million project to spread wireless access throughout the city.

    In most of those instances, access is free and equipment is maintained by nonprofit groups or private businesses. Large telecommunications companies such as SBC and T-Mobile also provide Wi-Fi, usually for a fee. * * *

    This summer, Evansville became the first Indiana city to bring Wi-Fi to large portions of its downtown after it made a deal with SBC that appears to be similar to what city officials are discussing here.

    The agreement, like a cable franchise, allows SBC to install its antennas and network. The company charges users $19.95 a month, and a portion of that is spent on improving public technology. Monthly access fees are reduced to $1.99 if users purchase the company's DSL Internet service at home.

    As part of the arrangement, though, the company attempts to secure exclusive rights with cities to offer Wi-Fi within reach of its antennas.

    Dave Mockert, with the city's Information Services Agency, said Indianapolis would not agree to an exclusive arrangement.

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to Indiana economic development

    Law - More on Kentucky's own "District 46"-type controversy

    Updating our ILB entry from Thanksgiving Day on Kentucky's own "District 46"-type controversy is this story today in the Louisville Courier Journal, headlined "Election dispute heads to Senate: Judge has ruled Democrat won." Some quotes from the lengthy story:

    Dana Seum Stephenson will turn to the Republican-controlled state Senate in an effort to hold onto the 37th District seat she appeared to win in November.

    But with a court having awarded the seat to her Democratic opponent, Virginia Woodward, the state could be headed for a constitutional crisis, Stephenson's lawyer said yesterday.

    "I don't know what happens," Jim Milliman said. "Frankly, I think that the Supreme Court will do what courts have done in other states and say this isn't for the court to decide." * * *

    Stephenson won the election by 1,022 votes, but Jefferson Circuit Judge Barry Willett ruled last week that she did not meet the residency requirement in the Kentucky Constitution, making Woodward the "de facto" winner of the election.

    The constitution requires state senators to be residents of Kentucky for six years before their election.

    The race was thrown into question the day before the election when Woodward filed suit, asking a judge to disqualify Stephenson, who has lived in Southern Indiana for four of the past six years. * * *

    Woodward also said the Senate should rise above politics and "decide this question based on what does the law say and what does the constitution say."

    There is some precedent indicating residency isn't a hard and fast rule. In 1987 the Democratic House seated Republican Mae Hoover even though she wasn't a legal resident of the district she was elected to represent. A House committee found that the residency requirement was intended to ensure that officials have "a familiarity with the people and the area they represent" and that Hoover was familiar with the area.

    Milliman said he planned to throw the case to the state Senate to decide because of a constitutional provision that gives houses of the General Assembly authority to "judge of the qualifications, elections and returns of its members."

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to General Law Related

    Indiana Government - Trump casino contract delayed

    According to an AP story:

    INDIANAPOLIS — The Indiana Gaming Commission has agreed not to award a final contract allowing Donald Trump's casino company to operate a casino in Orange County until the deal is reviewed by Gov.-elect Mitch Daniels, the Daniels team said yesterday.

    Ellen Whitt, who will be Daniels' deputy chief of staff, said the transition team had requested that assurance in part because there were "serious unresolved issues about the solvency of the company" and other concerns.

    But she also said it was part of a standard request that no major decisions beyond ordinary state government business be made until Daniels is sworn in on Jan. 10.

    Trump Hotels & Casino Resorts Inc. filed for bankruptcy protection on Nov. 22, but the commission said it expected the project to proceed as planned. The commission had previously awarded the Orange County license to Trump's company, but a final operating contract with the state is pending.

    Note: More than a dozen earlier entries related to the Indiana-based Trump casinos may be located by typing the word "Trump" in the search box in the right column.

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to Indiana Government

    Indiana Law - Ex-lawmaker plans to go into consulting, lobbying

    Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:

    INDIANAPOLIS — Former state lawmaker Markt Lytle, a Madison Democrat, said yesterday that he plans to launch a consulting business and may do some lobbying at the Statehouse.

    Lytle, who lost his House seat in the Nov. 2 election to Republican Billy Bright, said he wants to use the experience he has gained in nearly three decades of public service to help local governments, as well as organizations and businesses that deal with government.

    "It's what I know," said Lytle, a former mayor of Madison and Jefferson County coroner and recorder. "I've worked in it for 28 to 30 years. I don't want to let all that experience go to waste."

    Indiana has no rules that prevent former lawmakers from moving directly into lobbying or consulting positions.

    A related ILB entry, titled "Fort Wayne paper urges ethics reform," was posted here Wednesday.

    Posted by Marcia Oddi on Friday, December 03, 2004
    Posted to Indiana Law

    Thursday, December 02, 2004

    Courts - Indiana Supreme Court criticized before a House subcommittee

    This story, published in the New York Lawyer today, reports that:

    The Association of the Bar of the City of New York is fighting legislation passed by the U.S. House of Representatives that would require judges to award sanctions whenever they find a lawyer has raised a frivolous claim or motion.

    The bill, which passed the House in September and is pending before the U.S. Senate Judiciary Committee, would eliminate a statutory provision that allows attorneys to cure a frivolous filing. H.R. 4571 also would extend federal rules for sanctions in civil lawsuits to state litigation when interstate commerce is affected. * * *

    The sanction provision is contained in Rule 11 of the Federal Rules of Civil Procedure and gives judges the power to award monetary fines, including an opponent's legal fees, if a lawyer is found to have made a frivolous court filing. The bill would make sanctions mandatory. * * *

    Philip K. Howard, a lawyer and frequent critic of the legal system, said the House bill deals with the core problem that judges "do not impose Rule 11 sanctions."

    Mr. Howard, who testified before a House subcommittee in support of the bill, cited a ruling by the Indiana Supreme Court that failed to impose sanctions. In the Indiana case, an accident victim had sued Cingular because the driver who caused the accident was using a cell phone.

    "If that's not a frivolous claim, I don't know what is," Mr. Howard said, noting that the lawsuit had been dismissed at every level of the Indiana court system.

    [Emphasis added]

    The Indiana case Mr. Howard references appears to be Terry L. Williams v. Cingular Wireless (6/4/04 IndCtApp) [Torts], written up in this ILB entry (3rd case). It is an appeal from the Vanderburgh Superior Court. The Court of Appeals concluded: "The trial court did not err by granting Cingular’s motion to dismiss for failing to state a claim for which relief can be granted pursuant to Trial Rule 12(b)(6). However, Cingular has not convinced us that Williams’ appeal was frivolous, so we deny its motion for appellate costs and fees. We affirm."

    The Indiana Supreme Court denied Appellant's petition to transfer on 9/28/04.

    Posted by Marcia Oddi on Thursday, December 02, 2004
    Posted to Indiana Courts

    Indiana Government - Gov.-Elect Daniels names general counsel

    Via a press release issued this afternoon:

    Governor-elect Mitch Daniels Names Columbus Attorney Steven Schultz as General Counsel

    INDIANAPOLIS - Today Governor-elect Mitch Daniels named Columbus attorney Steven Schultz as the Governor's General Counsel. Schultz joins the Daniels administration from the position of General Counsel at Columbus-based Irwin Financial Corporation.

    "Steve is a brilliant lawyer who will be a valuable addition to our team," said Daniels' Chief of Staff Harry Gonso. "We are thrilled he agreed to leave the private sector to serve the state in this important way."

    "This is an historic opportunity to make a real difference in our state, and I'm very honored to have been asked by Governor-elect Daniels to be a part of it," said Schultz. "It is because of his vision and the challenging job ahead that I decided to answer the call to public service and join the team."

    A 1984 graduate of Manual High School in Indianapolis, Steven Schultz attended Butler University, where he studied history and political science and played football on two Heartland Conference championship teams. After graduating summa cum laude from Butler in 1988, Schultz served as an aide to Governor Bob Orr until the end of the Orr Administration in January 1989.

    Schultz then received his law degree from the Yale Law School and a postgraduate degree in international law from Cambridge University, which he attended as a Rotary Foundation Ambassadorial Scholar. Upon returning home to Indiana, Steve practiced corporate law at Barnes & Thornburg in Indianapolis for six years. In 1999, he joined the firm of Fried, Frank, Harris, Shriver and Jacobson, where, as a corporate associate based in London, he specialized in cross-border mergers and acquisitions and capital markets financings. Steve returned to Indiana at the end of 2001 to join Irwin Financial Corporation, a publicly-traded financial services company based in Columbus. In September 2004, he was named Irwin Financial's General Counsel.

    Steve and his wife Brynne have four daughters: Evelyn, Anna, Audrey and Mary Claire.

    [Update 12/3/04] Here is the writeup today in the Indianapolis Star.

    Posted by Marcia Oddi on Thursday, December 02, 2004
    Posted to Indiana Government

    Indiana Decisions - 7th Circuit posts seven

    Lawrence, Darrick A. v. Kenosha County (ED Wis.)

    Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
    KANNE, Circuit Judge. As he attempted to exit the parking
    lot following a concert, Darrick Lawrence was involved
    in an altercation with Louis Vena, a Kenosha County police
    captain. Lawrence claims that he was seized illegally and
    that Vena used excessive force in removing him from his
    vehicle. The district court granted summary judgment in
    favor of Vena and Kenosha County. Lawrence appeals. We
    find that probable cause did exist for the stop and that
    Vena acted within the limits of his authority. We therefore
    affirm the grant of summary judgment.
    White, Yancey L. v. Scibana, Joseph (WD Wis.)
    Before EASTERBROOK, EVANS and SYKES, Circuit Judges.
    SYKES, Circuit Judge. This appeal presents a question of
    statutory interpretation involving the calculation of “goodtime
    credit” for prisoners serving federal sentences. Under
    the good-time statute, an eligible prisoner may receive credit
    “beyond the time served, of up to 54 days at the end of
    each year of the prisoner’s term of imprisonment, beginning
    at the end of the first year of the term,” subject to the
    Bureau of Prisons’ determination that “during that year,
    the prisoner has displayed exemplary compliance with institutional
    disciplinary regulations.” 18 U.S.C. § 3624(b)(1).
    Yancey White’s behavior has been exemplary in all but one
    of his years behind bars: after serving eight years of his tenyear
    sentence for distribution of cocaine base, he is entitled
    to all but ten days of the good-time credit allowed him
    under the statute. The question is, how much time is that?
    * * *
    We defer to the Bureau’s reasonable interpretation
    of the statute, which awards the credit for each
    year served in prison rather than each year of the sentence

    One other circuit court has addressed this issue, and our
    decision today is consistent with its analysis. In Pacheco-
    Camacho v. Hood
    , 272 F.3d 1266, 1271 (9th Cir. 2001), the
    Ninth Circuit concluded that § 3624 was ambiguous on the
    question of whether good-time credit was to be awarded on
    the basis of the sentence imposed or time served, and under
    Chevron deferred to the Bureau’s interpretation. For the
    foregoing reasons, the order of the district court granting
    White’s petition for a writ of habeas corpus under 28 U.S.C.
    § 2241 is REVERSED.

    USA v. Wilson, Reginald (SD Ill.)
    Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
    WILLIAMS, Circuit Judge. This appeal represents the tail
    end of Reginald Wilson’s protracted effort to obtain a
    shorter prison sentence for his July 2001 conviction for
    possession with intent to distribute crack cocaine. See 21
    U.S.C. § 841(a)(1). Wilson pleaded guilty pursuant to a plea
    agreement contemplating the possibility that, based on
    Wilson’s cooperation, the government would move for a
    reduced sentence on his behalf under either U.S.S.G.
    § 5K1.1 or Rule 35(b) of the Federal Rules of Criminal
    Procedure. Wilson did cooperate, and indeed the government
    admitted at sentencing that it intended to file a Rule
    35(b) motion, so after waiting nearly a year for the govern-
    ment to take action to trigger a sentence reduction, Wilson
    moved to compel the government to file a Rule 35(b) motion
    on his behalf. The district court ultimately denied Wilson’s
    motion, and he appeals. Because the government’s decision
    not to file a Rule 35(b) motion lacked a rational relationship
    to a legitimate government interest and was made in bad
    faith, we vacate the order denying Wilson’s motion and
    remand for further proceedings. * * *

    The district court rejected each of the government’s
    explanations for refusing to file a Rule 35(b) motion on
    Wilson’s behalf. It then concluded nonetheless that the
    refusal was rationally related to a legitimate government
    interest and made in good faith. Given the district court’s
    factual findings, and the sequence of events precipitating
    the government’s ultimate withdrawal of its “placeholder”
    motion, the government neither furthered a legitimate government
    objective nor acted in good faith when it refused to
    file a Rule 35(b) motion in exchange for the substantial
    assistance it concedes that Wilson provided. We thus VACATE
    the district court’s order allowing the government to
    withdraw its Rule 35(b) motion, REVERSE its order denying
    Wilson’s motion to compel, and REMAND for further proceedings.
    Pursuant to Circuit Rule 36, this case shall be reassigned
    to a new district court judge.

    Stepney, Lawrence v. Naperville School Dist. 203 (ND Ill.)
    Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
    FLAUM, Chief Judge. Plaintiff-appellant Lawrence
    Stepney filed suit against his employer, Naperville School
    District 203, alleging discrimination based on race and
    disability. Stepney appeals the district court’s grant of
    summary judgment in favor of the school district. For the
    reasons stated herein, we affirm the order of the district
    Houston, Evelyn L. v. Provident Life & Acc (ND Ill.)
    Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit Judges.
    RIPPLE, Circuit Judge. Evelyn Houston filed this action
    against Provident Life and Accident Insurance Company
    (“Provident”) to challenge the termination of her long term
    disability benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B).

    The district court denied Provident’s motion for summary
    judgment. After a trial upon the administrative record, the
    court decided that Provident’s decision to terminate Ms.
    Houston’s benefits was “arbitrary and capricious” and remanded
    the case to Provident with instructions. The court
    also denied Provident’s subsequent Rule 59(e) motion to
    alter or amend the judgment. For the reasons set forth in the
    following opinion, we reverse the judgment of the district

    IL Municipal Retirem v. Citigroup Inc (SD Ill.)
    Before FLAUM, Chief Judge, and CUDAHY and POSNER, Circuit Judges.
    FLAUM, Chief Judge. Plaintiff-appellee filed suit in Illinois
    state court. Following removal by defendants-appellants,
    the district court remanded the action to state court.
    Defendants-appellants appeal, arguing that the district
    court exceeded its authority, and seeking vacatur of the remand
    order. For the reasons stated herein, we affirm. * * *

    We will not require a district court that believes that it lacks subject matter jurisdiction over a case to facilitate a transfer under § 1407, a statute that does not itself confer jurisdiction. Rule 1.5, as applied in this case, does not conflict with the text, structure, or purpose of § 1407, and the district court did not exceed its authority in issuing a remand order.

    Skarbek, Norbert v. Barnhart, Jo Anne (ND Ind., Robert L. Miller, Jr., Chief Judge)
    Before COFFEY, ROVNER, and EVANS, Circuit Judges.
    PER CURIAM. Norbert Skarbek seeks disability insurance
    benefits, alleging that he is unable to work due to osteoarthritis
    in his knees. An ALJ found that although Skarbek
    has a severe impairment and cannot perform his past relevant
    work, he retains the capacity to perform work within
    the national economy and is therefore not entitled to benefits.
    The district court upheld that decision, and we affirm.

    Posted by Marcia Oddi on Thursday, December 02, 2004
    Posted to Indiana Decisions

    Indiana Law - Information about court records and criminals in Lake County

    Two stories today from Lake County, from two different papers, about two different systems.

    The Gary Post Tribune is reporting:

    Officials are putting the finishing touches on an Internet link that will allow people to access Lake County court records simply by logging on to the county Web site.

    Lake Superior Court Judge Jeffrey Dywan, who spearheaded the initiative along with county Data Processing Director Mark Pearman and Web contractor Net Technologies Inc., hopes the move will help unburden the county clerk’s office while making government more efficient.

    Currently, court records are available only through the computer system installed in the clerk’s office.

    The new system, to be available in mid-January at www.lakecountyin.org, will provide current records of ongoing cases in criminal and civil courts, as well as case histories.

    Attorneys, title companies and media outlets will have the option of paying $75 annually for a wider array of services, Dywan said.

    In a separate story, the Munster Times is reporting today:
    Suspects will no longer be able to wander from community to community in Lake County without detection.

    The Lake County Sheriff's Department has bought a multimillion dollar system allowing them to access data and share that information with member law enforcement agencies. The St. John Town Council became the latest community to adopt a resolution giving it entry into the Lake County Sheriff's Department's Spillman data system.

    The Utah-based Spillman program enables law enforcement agencies who are part of the joint interlocal agreement to access data about people who are arrested or are involved in civil or criminal cases in Lake County.

    The data-sharing program should be fully operational by Jan. 1. The state maintains a separate database of criminal histories and pending charges. Lake County Sheriff Rogelio "Roy" Dominguez said the computer system/database and information system maintains, retrieves and correlates the data in the Sheriff's Department.

    "Many of the local communities cannot afford this type of computer system," he said. "We have worked out a deal with Spillman, along with our local county government, where we can offer local communities an opportunity to piggyback on our system. We can share data with them."

    What this means is that an officer who stops someone will have immediate access to information about the person and any contacts they have had with member law enforcement agencies, Dominguez said.

    Posted by Marcia Oddi on Thursday, December 02, 2004
    Posted to Indiana Law

    Wednesday, December 01, 2004

    Indiana Decisions - Case on Fort Wayne Airport Board Could Affect Hundreds of Laws

    [Updated] Here is a longer version of the AP story quoted below.

    "Case on Fort Wayne Airport Board Could Affect Hundreds of Laws" is the headline to a brief AP story today on the WISHTV Indianapolis site:

    The Indiana Supreme Court is expected to hear oral arguments this month in a lawsuit that could potentially render hundreds of state laws unconstitutional.

    The lawsuit brought by backers of a small airport argues that the Fort Wayne-Allen County Airport authority is illegal because it was created by special legislation. If the court agrees, its ruling could affect more than 500 state laws benefiting specific communities or counties.

    The state constitution states that laws should be uniform across the state. However, lawmakers have skirted that uniformity principle by using population parameters instead of the specific name of a jurisdiction to write laws benefiting specific areas.

    The State Supreme Court sanctioned that approach until January 2003, in a ruling that could now be used to strike down a law that's been on the books for years.
    The oral argument is scheduled for Dec. 20, 2004 at 9:45 a.m.

    Earlier ILB reports on the Supreme Court's grant of emergency transfer in this important case, plus analysis and a link to the initial, 6/28/04 decision of the Allen Circuit Court, are available here: 9/22/04 and 9/21/04

    Note: Three oral arguments (unrelated to the above) are set for tomorrow, Thursday, December 2nd before the Supreme Court:

    10:35 am - Fraternal Order of Police v. Evansville [Statutory interpretation] (access IBL summary and case link here; 1st case)

    9:45 am - A.C. Crabtree v. Estate of Crabtree [Insurance] (access IBL summary and case link here; 2nd case)

    9:00 am - Jedediah Haltom v. State [Restitution order] (access IBL summary and case link here; 3rd case)

    Posted by Marcia Oddi on Wednesday, December 01, 2004
    Posted to Indiana Decisions

    Indiana Law - Fort Wayne editorial recommends civil unions

    The Fort Wayne News-Sentinel has an editorial today titled "Time for civil unions." Some quotes:

    Indiana ought to take a cue from the state Court of Appeals and acknowledge that families are changing, as are the ways in which children can be conceived. There’s a straightforward, fair way to clarify the way the law treats gays, lesbians and their children: Enact a civil-union law that would provide most of the same legal, financial and parental rights as married couples. * * *

    But no matter how long two men or two women have lived together, couples as surely as any two heterosexuals who marry, they are still denied most benefits granted to married couples by legal tradition hundreds of years old. What they miss out on extends far beyond adoption and parental rights.

    The members of same-sex couples can’t bequeath property to each other with the same tax breaks that benefit married couples. A man or woman in a long-term homosexual relationship doesn’t have the legal standing of a spouse to bring lawsuits or to make life-and-death decisions for an ill partner. They’re not entitled to family leave if one must care for the other during an illness. They miss out on the other financial breaks – from lower income-tax rates to cheaper auto-insurance – that make life easier for married couples.

    It’s clear from polls and from results of referendums in other states last month that most Americans aren’t ready to accept extending marriage to same-sex couples. But it’s also clear that even the country’s most powerful conservatives – President George W. Bush and Vice President Dick Cheney, for example – are increasingly supportive of allowing states to craft their own plans to extend many of the practical benefits of marriage to same-sex couples through civil unions.

    Certainly it’s a just development to extend these benefits to gay couples. But it’s more than simply right; it’s in society’s best interest to encourage long-term, committed relationships. * * *

    Gay marriage is a step neither Indiana nor the country is ready for. There are too many questions about it, and it’s the kind of change that should come through legislative recognition of societal evolution, not judicial fiat. But the state’s lawmakers ought to make it easier for gays and lesbians to live the best lives they can, including legally recognized partners.

    Some sort of civil-union law in Indiana still would alienate many. Gay activists probably would insist that anything short of marriage still relegates them to second-class citizenship. Some opponents of gay rights would be dismayed by a civil-unions law, because they believe homosexual relationships of any kind are inherently sinful.

    Civil unions could be a good compromise. Creating them should be as urgent for legislators as passing a constitutional amendment specifically defining marriage as a union between one man and one woman.

    Posted by Marcia Oddi on Wednesday, December 01, 2004
    Posted to Indiana Law

    Indiana Decisions - 7th Circuit issues 4 today

    Details may follow ...

    Williams, Paul v. Sims, Larry (ND Ill.)

    Sarver, Lloyd v. Experian Info Solutions (ND Ill.)


    Global Relief v. New York Times Co (ND Ill.)

    Posted by Marcia Oddi on Wednesday, December 01, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Three today from Court of Appeals

    Joan Ketchmark, et al. v. Northern Indiana Public Service Company (12/1/04 IndCtApp) [Torts]
    Vaidik, Judge

    In this interlocutory appeal, Paul and Joan Ketchmark appeal the grant of summary judgment to Northern Indiana Public Service Company (“NIPSCO”) on the Ketchmarks’ claim of negligent infliction of emotional distress arising from a gas explosion at the Ketchmarks’ home shortly after NIPSCO employees serviced the home’s gas meter and pipes. Because Indiana does not allow recovery for negligent infliction of emotional distress arising from only the damage or loss of property, we affirm. * * *

    Indiana’s negligent infliction of emotional distress jurisprudence has not been extended to property, with the exception of human remains. The Ketchmarks ask us to so extend the law here. While we certainly sympathize with the tremendous loss that the Ketchmarks have suffered as a result of this explosion—heirlooms, photos, and a long-standing family home—the cause of action for negligent infliction of emotional distress does not extend to the loss of property because of the obvious and substantial difference between property and people.and the line should be drawn at damage or loss of property

    Without such a rule, claims will be made for any number of items of property: the 1955 family Ford, trophies and awards housed in a business set afire, the locket given to a widow by her deceased husband, an engagement ring. Finally, we note that the harsh impact of the holding is lessened somewhat in that Indiana allows punitive damages in tort where the plaintiff can show that the defendant acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, mere negligence, or other human failing. Wohlwend v. Edwards, 796 N.E.2d 781, 784 (Ind. Ct. App. 2003); see also Ind. Code § 34-51-3 (punitive damages).
    RILEY, J., concurs.
    CRONE, J., dissents with separate opinion.
    I respectfully dissent from the majority’s decision to deny recovery as a matter of law for the negligent infliction of emotional distress arising from damage to or loss of property. The so-called “impact rule” is a legal fiction that was created to protect juries from the difficult task of evaluating claims in which the alleged damages might be fraudulent, i.e., emotional trauma. In reality, the rule has blocked the pursuit of many otherwise valid claims for want of a physical injury. * * *

    I agree with the Supreme Court of Hawaii’s enlightened rationale, and I see no legally or logically defensible reason why the Ketchmarks should not be able to seek recovery for the emotional trauma resulting from the complete destruction of the home in which they had lived for nearly half a century. Accordingly, I would reverse the trial court’s grant of summary judgment in NIPSCO’s favor and remand for further proceedings.

    Daimler Chrysler Corporation v. Samuel and Diane Yaeger (12/1/04 IndCtApp) [Contracts; Arbitration]
    Hoffman, Senior Judge
    * * * The Yaegers contend that binding arbitration of their dispute with Daimler is prohibited by the Magnuson-Moss Warranty Act (“MMWA”). The Yaegers argue that enforcement of the binding arbitration provision of the contract with Daimler would frustrate the intent of Congress to allow consumers to obtain relief through the filing of civil actions. * * *

    The Yaegers contend that the binding arbitration provision of the claim form is not enforceable under Indiana’s “Lemon Law.” The Yaegers argue that the Lemon Law “makes it clear that a consumer does not need to resort to arbitration where an automobile manufacturer’s arbitration mechanism is not certified by the Indiana Attorney General as complying with federal and state law requirements.” * * *

    As we have discussed above, binding arbitration is not an informal procedure contemplated under the MMWA. Accordingly, binding arbitration is not a proper subject of 16 C.F.R. 703, and it is not a procedure that can be certified by the attorney general in accordance with the federal regulations. Even if we were to accept the proposition that the statute speaks to binding arbitration, the Yaegers still cannot prevail. The emphasis of the statute is upon the limitations put upon a buyer’s ability to recover under the Indiana Lemon Law; the statute does not state that a procedure not certified by the attorney general is invalid. Furthermore, we note that the Yaegers argument on the Lemon Law is premised upon the same faulty Wilko-based presumption as their previous argument on the MMWA. Contrary to the Yaegers’ belief, binding arbitration is a fair and comparatively inexpensive procedure by which consumers may enforce their rights under both the MMWA and the Indiana Lemon Law. We reverse the trial court and instruct the court to dismiss the Yaegers’ suit.
    RILEY, J., concurs.
    VAIDIK, J., dissents with separate opinion.
    I agree with the majority that Daimler Chrysler has failed to raise its interlocutory appeal under any of the provisions of Indiana Appellate Rule 14. However, I disagree with the majority that we have discretion to hear this appeal under Appellate Rule 66(B). Consequently, I would dismiss the appeal. * * *

    Lake County Trust Company v. Kenneth Jones, et al. (12/1/04 IndCtApp) [Real Estate]
    Riley, Judge
    * * * The Trust raises one issue on appeal, which we restate as follows: whether the trial court erred in finding that the Joneses adversely possessed the disputed strip located on the Trust property. * * *

    Accordingly, we find that the Joneses’ claim of adverse possession fails. The evidence does not demonstrate that the Joneses’ possession of the disputed strip was continuous for the statutory period to establish ownership by adverse possession. Allen, 760 N.E.2d at 200. Thus, we find that the trial court erred as a matter of law concluding that the Joneses adversely possessed the disputed strip. Therefore, we conclude that the trial court’s Order was clearly erroneous. Wilfong, 812 N.E.2d at 865.

    Based on the foregoing, we conclude that the trial court clearly erred in concluding that the Joneses adversely possessed the disputed strip located on the Trust property. Therefore, the trial court’s Order is reversed. Reversed.
    CRONE, J., and VAIDIK, J., concur.

    Posted by Marcia Oddi on Wednesday, December 01, 2004
    Posted to Indiana Decisions

    Indiana Decisions - Judge awards $16 million to medical malpractice victim

    "Judge awards $16 million to medical malpractice victim" is the headline to this story today in the Gary Post Tribune. More:

    CROWN POINT — A Gary woman, who was twice failed by the Merrillville medical community in 1995 and 1996, sued for malpractice and was awarded a record $16 million Tuesday by Lake Circuit Court Judge Christina Miller.
    However, an AP story appearing this afternoon on the Indianapolis Star website, contains a clearer picture of the award:
    Karen DeHart, 46, sued a doctor at the now-defunct Prompt Medical Center in Merrillville, claiming her back tumor was misdiagnosed, and a neurosurgeon at a hospital for excising part of her spinal cord instead of the tumor in 1996.

    An attorney for DeHart, Kenneth Allen, said Tuesday's award by Lake Circuit Court Judge Christina Miller was possibly a record sum for a medical malpractice case in Indiana.

    DeHart, however, will only receive a fraction of that amount because Indiana's medical malpractice law imposes a cap on such awards.

    Posted by Marcia Oddi on Wednesday, December 01, 2004
    Posted to Indiana Decisions

    Indiana Law - Fort Wayne paper urges ethics reform

    Perhaps overlooking the separation of powers, an editorial today in the Fort Wayne Journal Gazette urges that Gov.-elect Daniels press for ethics reform not only in the executive branch, but also in the General Assembly. Some quotes:

    It’s an encouraging sign that Gov.-elect Mitch Daniels, whose plate is full of ideas for fixing state government, has placed executive branch ethics reform near the top of his priority list. He can take it a step further with a push for extending it to the Indiana General Assembly. * * *

    But an executive branch-only crackdown ignores the elephant in the room. Real power in Indiana state government lies in the House and Senate chambers, where it’s business as usual. Less than six months after losing a primary election battle, former Sen. Lawrence Borst has a job with one of the most powerful lobbying firms in the state.

    Julia Vaughn, policy director for Common Cause Indiana, pointed to Borst’s career turnaround as example of the need for a cooling-off period between a seat in the legislature and a job as a lobbyist. Daniels has proposed a one-year cooling-off period before executive branch employees can lobby or do business with their former colleagues.

    “It doesn’t really matter that (Borst) says he won’t be lobbying the legislature,” Vaughn said. “If you are attempting to influence the General Assembly, you are going to be effective whether you are actively working as a lobbyist or not.” * * *

    The public needs to wake up to the undue influence lobbyists have on the laws and policies of the state. It’s easy to point fingers at the high-profile scandals in the executive branch and declare that the misdeeds begin and end there; the fact is that that Hoosiers are affected as much and more by policy shamelessly shaped by businesses and organizations with deep pockets. Can lawmakers who accept free tickets to Indianapolis Colts games honestly claim they won’t be swayed if and when they are asked to spend state dollars on a new stadium?

    The governor-elect deserves credit for promptly following through on efforts to raise the ethical standards of state government. He can make even more of an impact by pressuring the General Assembly to follow suit.

    Posted by Marcia Oddi on Wednesday, December 01, 2004
    Posted to Indiana Law

    Economic development - NWI seeks steel giant�s headquarters

    According to a story in the Gary Post-Tribune today:

    State political leaders are lobbying International Steel Group CEO Rodney Mott to consider making the region the U.S. headquarters for the new Mittal Steel Co.

    They believe since Northwest Indiana boasts the highest concentration of steelmaking in the country and since the new company will employ 11,700 workers locally it would be a perfect combination to locate its headquarters here.

    Ispat International announced this fall that it intends to buy ISG and will form the world’s largest steelmaker. This deal should come to fruition in early 2005 and would mean ISG-Burns Harbor and ISG -Indiana Harbor employees and Ispat Inland employees will all be employed by Mittal Steel.

    Mott will be the CEO for the company’s U.S. operations. Lawmakers say if the headquarters are located here, it would be an economic boost and might draw new companies to the region.

    Posted by Marcia Oddi on Wednesday, December 01, 2004
    Posted to Indiana economic development