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Monday, January 31, 2005

Ind. Decisions - 7th Circuit posts four today

Fort, Vanesse v. CW Keller Trucking (ND Ind.,Robert L. Miller, Jr., Chief Judge)

Before COFFEY, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Carolina Casualty intervened in Vanesse Fort’s wrongful death action, seeking a declaratory judgment that it had no duty to provide coverage for any judgment rendered against its insured, C.W. Keller Trucking, Inc., in the wrongful death case. The district court denied Carolina Casualty the requested relief, finding that the federally-mandated MCS-90 endorsement attached to its policy was applicable. We agree and, therefore, affirm.
O'Sullivan, Gerald v. City of Chicago (ND Ill.)
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs in the two actions now before us are current and former lieutenants in the Chicago Police Department who were denied promotion to captain. They filed suit against the City of Chicago (“City”) to enforce a consent decree entered in 1983 that required the City of Chicago to make hiring and promotion decisions without reference to an individual’s political affiliation. The City moved to dismiss the complaints on the ground that the plaintiffs lacked standing to enforce the decree. The district court granted the motion to dismiss, and the plaintiffs appealed. We now reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
Davis, Thomas P. v. G.N. Mortgage Corp (ND Ill.)
Before COFFEY, KANNE, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. On September 9, 1999, Thomas P. Davis and Cathy M. Davis obtained a $288,000 adjustable rate mortgage (“ARM”) from the G.N. Mortgage Corporation (“GN”) for the purpose of refinancing prior, non-business personal debts which was to be secured by their home in Manhattan, Il. A few months later, GN sold the note to Countrywide Home Loans, Inc. (“Countrywide”). The Davises paid off the 30-year ARM from GN less than three years later, on February 20, 2002, and at that time were assessed over $12,000 in penalties pursuant to the terms of a five-year prepayment penalty rider included in the mortgage document. The Davises objected to the penalty and filed a diversity suit against GN and Countrywide, alleging that the prepayment penalty agreement was fraudulently obtained, that enforcement of the penalty constituted a breach of contract and that the penalty violated the Illinois Interest Act, 815 ILCS 205/1 et seq., and the Illinois Consumer Fraud Act, 815 ILCS 505/1 et seq. The core of the Davises’ claim is that the parties had agreed to a twentyfour month prepayment rider, but that GN had nevertheless fraudulently induced them into signing one that provided for a penalty if the loan was paid before sixty months had elapsed. The district court granted the defendants-appellees’ motions for summary judgment on each of the Davises’ legal claims, and the Davises appealed. We affirm.
Sanders, William A. v. Cotton, Zettie (ND Ind., Allen Sharp, Judge)
Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. William Sanders was convicted of murder and attempted murder by an Indiana jury and sentenced to consecutive terms of 40 and 25 years’ imprisonment, respectively. After his conviction and sentence were affirmed on direct appeal, Sanders filed a post-conviction petition in state court, claiming that the jury instructions did not correctly state the burden of proof for murder, attempted murder, voluntary manslaughter, and attempted voluntary manslaughter, and that his appellate counsel was ineffective for not challenging on direct appeal the trialcourt’s refusal to submit a jury instruction that would have correctly stated the burden of proof. Sanders’s petition was denied by the trial court and the state appellate court, and the Supreme Court of Indiana denied his petition to transfer.

Sanders then filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254, arguing that his due process rights were violated when the jury instructions did not correctly state the burden of proof and that his appellate counsel was ineffective for not challenging the trial court’s refusal to submit a jury instruction that would have correctly stated the burden of proof. The district court denied Sanders’s petition, and he now appeals that decision. We reverse. * * *

III. Conclusion. Because Sanders’s federal rights to due process and effective assistance of appellate counsel were violated, we REVERSE the district court’s denial of Sanders’s habeas corpus petition and REMAND with directions to grant the writ unless the State elects to retry Sanders.

[Note: This 19-page opinion covers a number of points important to those practicing criminal law in Indiana.]

Posted by Marcia Oddi on Monday, January 31, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Uncoupling judges' pay raises from legislators'

The Fort Wayne Journal Gazette has an editorial today on judges' pay. Some quotes:

The best section of a Senate bill on judicial salaries uncouples judges’ pay raises from legislators’.

This has been a long time coming. The portion of the bill providing automatic salary increases to judges, although well intended, should be excised. Even in robust economic conditions, the General Assembly should discuss and vote on salary increases or cost-of-living adjustments for judges.

Senate Bill 363 would provide automatic annual salary adjustments for Indiana’s judges in years when the General Assembly does not give a raise. The bill, which passed out of the Senate Judiciary Committee last Wednesday by a 9-0 vote, ties the annual cost-of-living-increases to the same level given to similar state employees in the executive branch. Those increases have ranged from zero percent to 4 percent since 2001.

Since when did it become appropriate for the legislative branch to dump the executive and judiciary branches in the same salary class? This bill, no matter how well intentioned, absolves the General Assembly from ever having to justify salary increases for judges, whose pay also affects magistrates and prosecutors. It essentially allows legislators to pass the buck while passing bucks. * * *

One of the great follies in the federal judiciary is that judges’ salaries are linked to Congress. In 2003, the Volcker Commission on public service called on Congress to delink judges from congressional pay increases. While the commission sympathized with legislators’ caution on raising its own pay at risk of raising the ire of constituents, the commission wrote that “members of Congress must make the quality of the public service their paramount concern when they consider salary adjustments for top officials of the other branches of government."

Posted by Marcia Oddi on Monday, January 31, 2005
Posted to Indiana Courts

Ind. Law - More on taking private property for private development

This ILB entry from Sunday, Jan. 23rd talks about about HB 1063, authored by Rep. David Wolkins of Winona Lake, which would prohibit the taking of private property by eminent domain for commercial purposes.

It also points out that the United States Supreme Court will be hearing oral arguments on this same issue in the current term. Although three related cases are scheduled, the closest case here is Kelo v. New London, scheduled for argument on Feb. 23, 2005. (See the earlier entry for links.)

Two items of news today:

First, HB 1063 is scheduled to be heard today by a subcommittee of the House Judiciary Committee, upon adjournment, in the North Balcony of the House Chambers.

Second, the NY Times yesterday published a lengthy story on this issue, particularly as it relates to the cases pending before the U.S. Supreme Court, titled "There Goes the Old Neighborhood, to Revitalization." Some quotes:

The issue that binds them - whether a municipality can take someone's property through eminent domain and hand it over to developers in the name of economic development - will be aired on Feb. 22, when lawyers for Mr. Dery, Ms. Kelo and other New London holdouts have their day before the United States Supreme Court.

The issue is particularly fraught in the Northeast, where two trends have intersected to sharpen the struggle between the deeply held values of individual property rights and the public benefits of bringing aging neighborhoods back to life. One is the scarcity of suburban land available for development, as local communities and state governments organize to prevent sprawl and developers turn their eyes to the cities.

The other is the need for the region's aging small towns and cities to rebuild their tax bases, lest they sink deeper into poverty and abandonment.

"With eminent domain we can now get a large tract of land and bring back to the urban centers the retail, the shopping centers, the office parks," said Thomas Londregan, New London's city attorney. "Or do we have to wait for our urban areas to deteriorate and decay into blight before we get the blessing to try to help ourselves? I hope not."

The courts, including the Supreme Court, have generally supported Mr. Londregan's argument that economic growth amounts to an overriding public benefit. But now an odd alliance of conservative and libertarian property rights campaigners and civil rights advocates are hoping that the Supreme Court's decision to hear the New London case could signal a shift. The case is an appeal by the New London residents of a unanimous decision last year by s the Connecticut Supreme Court upholding the city's condemnation rights.

Oddly, the Times article does not mention the evidence of a shift against public benefit-type (i.e. "Poletown" takings) -- for instance a Michigan Supreme Court decision last summer (reversing Poletown) and an earlier Illinois Supreme Court decision, both of which strike down such takings. More can be found in this ILB entry from 7/31/04, and this one from 8/2/04.

Posted by Marcia Oddi on Monday, January 31, 2005
Posted to Indiana Law

Ind. Gov't. - Indiana government earns C+

"Indiana government earns C+" is the headline to an AP story today in several Indiana papers. And the grades range from A to C-, not A to F. Some quotes:

INDIANAPOLIS - A new study that graded how well each state is managed gave Indiana's government an overall C+ and faulted officials for largely failing to plan beyond the two-year budget cycle.

The report was released today by the Government Performance Project of the University of Richmond that was funded by The Pew Charitable Trusts, an independent, nonpartisan group. It awarded letter grades to each state on how it handled finances, personnel, infrastructure and modern information systems through the downturn, plus an overall grade. Alabama and California scored the worst, each with a C- overall.

Access the entire report here, called "Grading the States 2005."

Posted by Marcia Oddi on Monday, January 31, 2005
Posted to Indiana Government

Sunday, January 30, 2005

Ind. Gov't. - A more business-friendly atmosphere in the Statehouse

The front-page of the business section in the Sunday Indianapolis Star features a story by J.K. Wall and Eric Martin headlined "Tide turns in latest legislature With GOP in full control, business is in; unions worry." a quote:

With Republicans controlling both the House of Representatives and the Senate for the first time since 1996, and with Republican Gov. Mitch Daniels pushing an ambitious economic agenda, legislation that is business-friendly and sometimes union-weakening has received a far warmer reception than at anytime in the last decade.

Lobbying groups such as the Indiana Chamber of Commerce and the Indiana Manufacturers Association, which were frequently in a defensive position in recent years, now have the ear of the legislative leadership. Union groups, such as the AFL-CIO, say they are a bit more removed from the inner circle.

Some of the legislation this session reflects that shift. There are bills that ease restrictions on health insurers, extend tax incentives for expanding Hoosier companies, limit legal liability against employers and weaken the position of organized labor.

A side-bar has a list of pro-business bills:
Here's a look at some of the legislation supported by business interests:
• HB 1006: Extends several tax incentives. Exempts purchases of research-and-development equipment from sales tax.
• HB 1034: Requires Indiana to observe daylight-saving time.
• HB 1075: Allows health insurers to indefinitely waive coverage of an individual's pre-existing medical condition.
• HB 1196: Caps liability for pain and suffering damages at $500,000 and at $700,000 in 2008. Does not apply to medical malpractice lawsuits.
• HB 1536: Increases the average weekly wage used to calculate worker's compensation benefits but requires employees to prove that an injury is indirectly related to work.
• SB 1: Grants a tax deduction for investments in property development. Provides a tax refund for purchases of research-and-development equipment.
• SB 78: Eliminates potential triple damages if an employer withholds an employee's wages. Says a court "may" award attorneys' fees when current law says "shall."
• SB 222: Allows health insurers to waive coverage of a pre-existing medical condition for five years instead of two.

Posted by Marcia Oddi on Sunday, January 30, 2005
Posted to Indiana Government

Ind. Gov't. - More on the "cooling off period" for legislators

Lesley Stedman Weidenbener of the Louisville Courier Journal reports in her Sunday column on "House Bill 1090, passed 10-1 by a House committee last week, [which] would require a one-year waiting period between the time a lawmaker's term ends and when he can register as a lobbyist."

She quotes former legislator Markt Lytle, "now a lobbyist after losing in Novemeber":

"After 30 years serving in city, county and state government, there's a lot of experience and knowledge I have there that would go to waste if I didn't use it," Lytle said of his new role. "This is another way to serve your communities and state. It's just in another capacity."
(Obviously a man who puts stock in the value of institutional memory . . .)

The column continues:

Last year at least 20 former lawmakers were registered to represent companies or organizations before the House and Senate, although a smaller number were actively engaged in day-to-day lobbying. Most of them began lobbying immediately or shortly after they left the legislature.

The list includes former House Speakers Paul Mannweiler, Mike Phillips and Phil Bainbridge. In 2002 Mike Smith of Rensselaer resigned his seat in the House just a few weeks after winning re-election to become executive director of the Casino Association of Indiana. Jim Atterholt, who lost a bid for re-election in 2002, registered last year to lobby for A T & T. * * *

If the bill becomes law, Indiana would join 28 states with rules forcing lawmakers to wait some period of time before lobbying, according to the bill's author, Rep. David Frizzell, R-Indianapolis.

But the laws from state to state are quite different. In Kentucky, former lawmakers must wait two years before lobbying, while in Ohio the wait is a year. In Michigan, only lawmakers who resign in mid-term are prevented from lobbying, and then only until their term would have ended. There are no restrictions in Illinois, according to the National Conference of State Legislatures.

In Indiana, the bill comes after Gov. Mitch Daniels, a Republican from Indianapolis, instituted ethics rules for the administrative branch that prohibit state employees from taking a job to lobby the governor's office or state agencies for one year.

Daniels' rules also prohibit a state employee from taking any job with a company or organization for a year if he or she had been involved in regulating that company or administered any contracts with the firm. The bill affecting lawmakers doesn't go that far. They could accept non-lobbying jobs from companies with which they've dealt in their public jobs.

A Friday ILB entry on this bill is available here.

Posted by Marcia Oddi on Sunday, January 30, 2005
Posted to Indiana Government

Ind. Gov't. - More on the statewide medical error reporting and quality system

Updating our entry from last Sunday, Jan. 23rd, on the Governor's Executive Order - #05-10: Directive to establish medical error reporting and quality system, is this editorial today in the Fort Wayne Journal Gazette, that begins:

Gov. Mitch Daniels’ order for mandatory medical-error reporting is a smart idea that should have been put in place years ago. Aside from leading to better “best practice” models among Indiana hospitals, the data will be available to the public. So for the people’s sake, the governor should demand the Indiana State Department of Health create user-friendly content.

Posted by Marcia Oddi on Sunday, January 30, 2005
Posted to Indiana Government

Env't. - More on the Tyson chicken settlement; EPA emissions agreements

The Evansville Courier& Press today has an editorial on the Tyson chicken settlement. Access it here. It begins:

After years of stinking up the Western Kentucky countryside with the stench of ammonia, poultry-processing giant Tyson Foods has agreed in a court settlement to pay for the monitoring of two broiler houses.

It is just the sort of agreement that state and local officials should have insisted upon when the big processing companies were first looking at Kentucky. Of course, back then, the smell of money overpowered any concerns about what the smell from the poultry operations might do to the quality of life in Western Kentucky.

Kentucky rolled out the welcome mat for the large poultry farms, before giving serious consideration to controls that might have prevented pollution so bad that some homeowners have been forced at times of the year to remain inside their homes, lest they become ill from the smell of ammonia, released as matter decays.

The Kentucky experience should stand as an example to Indiana Gov. Mitch Daniels, who, as a candidate, was critical of Indiana's failure to attract livestock operations. He said Indiana's regulatory system needs to be overhauled to provide livestock producers with transparent and predictable regulations.

We would add to that, to provide protection for homeowners and communities from the pollution created as a byproduct of corporate farming.

Here is an entry from the ILB dated Nov. 11, 2003, titled "Tyson Chicken Inc. ruled a 'person in charge' of houses operated by both the company and its contract growers." This month's settlement results from that ruling.

In a related story, the Ricmond Palladium-Item reports today that pork producers are being encouraged by their trade association to sign the consent agreements being offered by U.S. EPA. Some quotes:

INDIANAPOLIS, Ind. -- A consent agreement has been reached between the U.S. Environmental Protection Agency and pork, egg, dairy and poultry organizations on air quality emissions from livestock farms.

The two-part agreement protects livestock farmers from unknown past violations and will fund scientific research on which to base air quality standards for livestock farms.

The National Pork Producers Council will hold a multi-state producers meeting at 1 p.m. Feb. 11 in Indianapolis to explain the consent agreement. The meeting's location will be announced later. The meeting is one of four regional pork producer meetings around the country.

To be part of the consent agreement and receive protection from any liability for past emissions, producers must sign the EPA agreement and pay a small penalty. All sizes and types of hog operations should sign the consent agreement, said Terry Fleck, executive vice-president of the Indiana Pork Advocacy Coalition.

Operations may sign up multiple farms and contract farms. Contract producers can sign up by themselves. The cost can be as little as $200 per farm up to $1,000 for large farms. The sign-up will continue for 90 days following the publication of the agreement in the Federal Register.

For much more information on the EPA proposal, see this 1/22/05 ILB entry titled "EPA plan offers farms immunity from air pollution violations."

Posted by Marcia Oddi on Sunday, January 30, 2005
Posted to Environment

Getting closer to finalization of the new and improved Indiana Law Blog

More improvements to report:

Clicking on a date on the calendar now brings up all the entries for that day, in full-page format.

If you want to print out a month's worth of entries, you can now do so by selecting the month in the right hand column. All the entries for that month will be pulled up, in full-page format. When you print out, at least as my printer is set up, the pages are numbered -- "1 of 168" etc. Even using the full page, most months average well over 160 printed pages.

I've also added more navagation guides and dozens of tweaks. Official transfer will be no later than next weekend, hopefully sooner.

And where is the ILB Wishlist for 2005 that I promised for early in January (if not Jan. 1st)? And which some of you were kind enough to submit suggestions for? It got sidelined because of the need to reconfigure the blog, but is still on the agenda.

Posted by Marcia Oddi on Sunday, January 30, 2005
Posted to About the Indiana Law Blog

Ind. Law - Indiana impact of U.S. Supreme Court's recent sentencing decision

The U.S. Supreme Court on Jan. 12th issued its decision in the U.S. v. Booker and U.S. v. Fanfan cases. The central issue was how the Court's decision last year in Blakely v. Washington impacted the federal sentencing guidelines.

Recall that the question of how Blakely impacts the State of Indiana's sentencing is currently pending before our Supreme Court.

But judges in federal courts in Indiana and elsewhere have been subject to the mandatory federal sentencing guidelines which, because of their parallels to the sentencing system used in the State of Washington, were brought into question by the Blakely decision. The 7th Circuit in fact ruled on 7/9/04 that as a result of Blakely, the federal sentencing guidelines were unconstitutional. The case was United States v. Booker (WD Wis.) ILB entries from 7/9/04, 7/10/04, and 7/12/04 provide links to the decision and related materials. Last summer the Supreme Court agreed to review Booker and a related case, and finality in federal sentencing has been pretty much on hold awaiting the Court's rulings.

The U.S. Supreme Court's decision this month in United States v. Booker and United States v. Fanfan (January 12, 2005) is intended to resolve the questions surrounding federal sentencing. However, the Court's ruling did not totally throw out the federal guidelines, it said they were "advisory."

So what does all this mean? Here is an AP story by Hope Yen that was published last week -- I have been holding it in my file for use in the event that I did an entry on the Booker ruling. Here are some quotes:

WASHINGTON (AP) -- Thousands of criminals are filing for reduced sentences. Backlogged courts are asking lawyers to slow down their appeals. Judges say they're confused about what to do.

Two weeks after the Supreme Court threw out mandatory sentencing guidelines, federal courts are just beginning to grapple with the consequences. And judges say it may take months, if not years, to sort through thousands of appeals and piece together a new sentencing system.

"It's a much more stressful exercise now," said U.S. District Judge Harold Baer of New York, who sentences dozens of white-collar criminals and drug offenders each month. "We're all desperately trying to follow the Supreme Court decision. But what does that mean?" * * *

In the Jan. 12 ruling, the Supreme Court said making the guidelines mandatory violated a defendant's Sixth Amendment right to a jury trial because they call for judges to make factual decisions that affect prison time, such as the amount of drugs involved in a crime.

Under the ruling, the guidelines now are only advisory; as a result, federal judges are free to sentence convicted criminals as they see fit, but they may be subject to reversal if appeals courts find them "unreasonable." * * *

Carmen Hernandez, a vice president of the National Association of Criminal Defense Lawyers: "Defendants sitting in prison are calling us wanting to know how the ruling affects their case. We're having to tell them to wait."

Many judges are sticking close to the guidelines, but some judges who had long chafed under the mandatory system are showing some leniency for first-time offenders. Last week in Maine, for instance, U.S. District Judge D. Brock Hornby declined to sentence first-time offender Steven Jones to 12 to 18 months under the guidelines for illegal gun possession. Instead, he ordered a house arrest and treatment because of Jones' history of depression. "The sentence I contemplate here will in all likelihood better protect the public over the long term than the guideline sentence," Hornby wrote in an opinion Jones' attorney cheered as a "new day."

But in Utah, U.S. District Judge Paul Cassell chose to sentence a bank robber to 188 months, the same amount of time prescribed by the guidelines. In his opinion, Cassell said the guidelines should be followed in "all but the most unusual cases." If judges' "discretion is exercised responsibly, Congress may be inclined to give judges greater flexibility under a new sentencing system," Cassell wrote.

I have seen nothing in Indiana papers about the Supreme Court's Booker decision, and little about the Blakely ruling. But today John Grant Emeigh has a story in the Gary Post-Tribune about the impact of Booker on the Northern District of Indiana. Some quotes:
More appeals are expected, according to U.S. Attorney Joseph Van Bokkelen. Since the Supreme Court’s Jan. 12 ruling, two inmates convicted in the Northern District of Indiana have requested that their sentences be reduced. “I’m sure there’s going to be a lot more filed,” Van Bokkelen said. “But we’re not particularly concerned about it.”

Van Bokkelen said he doesn’t believe any of the previous sentences handed down in the Northern District will be reduced. “It’s every inmate’s right to file an appeal, and we will review every one of them,” he said.

On Jan. 12, the U.S. Supreme Court found that sentencing guidelines used in federal courts violate the Sixth Amendment to the extent that they allow judicial — rather than jury — fact finding to form the basis for sentencing.

Terrance Jackson and Clinton Parker, who were both convicted in the Northern District, are appealing their sentences. In their complaints, both men cited United States vs. Booker, which was the case the Supreme Court used to rule the sentencing guidelines were unconstitutional. * * *

The Booker case is what [sic.] the Supreme Court determined that the mandatory federal sentencing system — under which every person convicted in federal court since 1987 had been sentenced — was unconstitutional.

Van Bokkelen explained the Supreme Court ruled that a judge may only base his sentence on evidence that was presented to a jury or admitted to in connection with a guilty plea. A judge may not add new evidence that was not presented at trial or in a plea that would increase the convict’s offense level.

However, under a second majority holding of the Booker ruling, the Supreme Court didn’t find the guidelines null and void, Van Bokkelen explained. The guidelines will now become merely “advisory” for judges determining sentences. Van Bokkelen said this second holding by the high court has caused some confusion in the judicial system. “When you look at the second holding, it kind of cancels out the first part of the ruling,” he said.

The federal district courts are of course the trial courts in the federal system. The circuit courts are the intermediary appellate courts; the appeals court for Indiana's federal court is the 7th Circuit Court of Appeals in Chicago, which also covers Illinois and Wisconsin. According to Hope Yen's article, the burden of deciding whether a federal judge's sentence is reasonable falls to the appeals courts:
The burden of defining that legal standard will fall on the nation's 13 federal appeals courts, which received 400 new cases Monday after the Supreme Court ordered them to reconsider defendants' sentences for crimes ranging from securities fraud to theft and drug possession.

Those 400 cases are petitions from defendants who wanted their sentences reviewed after justices struck down a similar sentencing guidelines plan in Washington state last June, putting the federal guidelines in doubt. Hundreds of other appeals are pending at the appeals court level.

The appeals courts already are feeling the heat. At least two, the 9th Circuit in San Francisco and the 2nd Circuit in New York, are asking defense attorneys to hold off on filing some sentencing appeals for now, with exceptions for emergency cases.

Court officials cited an already congested docket in asking defendants to wait until the appeals court judges can offer some guidance on the definition of "reasonable" sentences in a few test cases in coming weeks.

Edward Becker, a senior judge for the Philadelphia-based 3rd U.S. Circuit Court of Appeals, said his court still is determining whether to delay some appeals. The main challenge, he said, will be determining whether the ruling should apply retroactively to tens of thousands of prisoners nationwide whose appeals already have run their course.

"There's been huge correspondence among the federal judges," Becker said. "But we have to wait and see how the district judges sentence in the wake of the opinion. It's going to have to spin out for another six months."

In the 400-plus cases sent back to the Courts of Appeals by the U.S. Supreme Court last Monday are several dozen for the 7th Circuit. Here is a copy of the 87-page order. (I gave some thought to going through the list and pulling out the Indiana cases, but gave up when I saw: (a) that the trial court was not identified on the list, which meant I would have to pull up all the 7th Circuit decisions, and then (b) I found I couldn't locate the first case on the list, a 7th Circuit case called Hawkins, Arthur M. v. U.S. Perhaps it is an unpublished decision.)

The Washington Post wrote about the list on Tuesday, Jan. 25:

Yesterday's 87-page list of orders in the federal sentencing cases was expected. The justices had been flooded with petitions from defendants who wanted their sentences reviewed after the court struck down a state sentencing guidelines plan in June, putting the federal sentencing guidelines in jeopardy.

The court was holding those cases pending the result in the two cases decided Jan. 12, United States v. Booker and United States v. Fanfan.

Still, the sheer volume of cases demonstrated the wide and still largely unresolved ramifications of the Booker-Fanfan decision. * * *

In its Booker-Fanfan decision, the court said that the Constitution forbids the practice, common under the guidelines, of using facts found by a judge to tack extra years onto criminal sentences. Every defendant is entitled to a jury trial on the facts that could affect his punishment, the court ruled.

At the same time, the court ruled that the guidelines, created by a congressionally authorized judicial commission to ensure that similar criminals receive similar prison terms, may remain in use as long as they are "advisory," not mandatory.

That means district judges are free to impose the sentences they deem appropriate, as long as they consult the guidelines and as long as the sentences are found "reasonable" by the appeals courts.

Finally, here are useful stories from papers in two of our sister states, this one from the Pantagraph in Bloomington, Illinois and this one from Ohio's Cincinnati Post.

Posted by Marcia Oddi on Sunday, January 30, 2005
Posted to Indiana Law

Saturday, January 29, 2005

Ind. Gov't. - Bill to remove pensions of convicted public officials stalls

"Bill to remove pensions of convicted public officials stalls" was the headline to this story Friday in the Munster (NW Indiana) Times. Some quotes:

A bill that would have required some public officials convicted of misconduct to forfeit their pension pay was shelved Thursday when state senators raised questions at a committee hearing.

The bill would give public pension boards the authority to determine whether to take away part or all of an official's pension for misconduct. Sen. Murray Clark, R-Indianapolis, authored the bill, which is backed by Gov. Mitch Daniels. Jason Barclay, special counsel to the governor, told the committee the bill is part of Daniels' larger plan for ethics and public integrity reform.

Many opponents of the bill lauded its concept but questioned seeming ambiguities, including the definition of the term "misconduct." Several committee members and opponents questioned whether the bill allowed for due process. Barclay told committee members the bill was based on a similar New Jersey law that has stood up to challenges of a lack of due process.

Other committee members questioned whether the bill would constitute double jeopardy. Barclay said the bill would impose a civil-type sanction, not criminal, and therefore not constitute double jeopardy. * * *

Clark plans to bring the bill before the committee again in a few weeks. In the meantime, he plans to make sure it allows for adequate appeals and due process. "I don't think it's ill-conceived," he told the committee. "Hoosiers want, conceptually, something like this."

The bill, Senate Bill 423, is available here. The digest to the introduced bill reads:
Forfeiture of public pensions for misconduct. Provides for the forfeiture of all or part of a pension benefit from the state excise police and conservation enforcement officers' retirement fund, the public employees' retirement fund, the teachers' retirement fund, the state police benefit system, the judges' retirement system, the prosecuting attorneys retirement fund, the 1925 police pension fund, the 1937 firefighters' pension fund, the 1953 police pension fund, the 1977 police officers' and firefighters' pension and disability fund, and the sheriff's department's pension trust fund for misconduct by a public officer or employee. Provides that: (1) meetings to receive information about or to discuss, before a determination, the forfeiture of a pension benefit may be held in an executive session; and (2) the records concerning the forfeiture are exempt from disclosure at the discretion of the pension administrator, except for the final determination, which is available for inspection and copying.

Posted by Marcia Oddi on Saturday, January 29, 2005
Posted to Indiana Government

Ind. Gov't. - I-69 toll road called not viable, or NOT

Jennifer Whitson of the Evansville Courier& Press had two stories the end of this week that I have not seen reported elsewhere and that, taken together, are fascinating.

The first story, published yesterday, Jan. 28, was headlined "I-69 toll road called not viable." Some quotes:

INDIANAPOLIS - The extension of Interstate 69 from Indianapolis to Evansville would not have enough traffic to make it a viable toll road, according to the new commissioner of the Indiana Department of Transportation.

A task force is investigating how to fund construction of I-69 and several other large projects, but if the initial data pan out, using tolls probably will be off the table, INDOT Commissioner Tom Sharp told the House Ways and Means Committee. "Cash tolling on I-69 would not bring in major funds because of (low) volume is our initial assessment," he said. * * *

"Our goal is to shrink operating costs and move those, dollar for dollar, into construction," he said. As part of that plan, he fired 32 managers in INDOT's sub-districts Monday, freeing up $2 million in salaries, and sold 250 INDOT cars, freeing up $1.5 million more. But Sharp said those types of changes won't be enough to fund the multimillion-dollar shortfall in INDOT's financing going forward. * * *

Sharp said another part of managing INDOT's money would be to cut spending on planning and design for future projects where the construction funding isn't solid. "We shouldn't be spending the money on projects we can't construct," he said.

Asked if that could slow down progress on I-69, which is still at the environmental study and design phase, Sharp said no. "It's about finding a balance," he said, between projects in design and in construction.

When asked by committee members what the time line was for I-69 construction, Sharp said he didn't know. "That's probably up in the air because it's a funding issue," he said.

Today's story is headlined: "Daniels: I-69 toll remarks wrong - Governor contradicts his new INDOT chief." Some quotes:
INDIANAPOLIS - Gov. Mitch Daniels on Friday contradicted his transportation head and said the Evansville to Indianapolis extension of Interstate 69 may still be a toll road.

Daniels said Indiana Department of Transportation Commission Tom Sharp was giving an honest answer, but using old data when he told the House Ways and Means Committee on Thursday that the new highway most likely wouldn't have enough traffic to make a toll system viable.

"We're not going to give up on the idea of tolling if that's what it takes to get highway I-69 built in this state," Daniels said. "That's an old assessment that (Sharp) was using, but he gave a straight answer based on the information he had."

Daniels made the comments when discussing the fact that many of his appointees came to the position with no previous government experience.

"Just as we said we would, we've brought brand-new people," Daniels said. "What comes along with that is some naivete. They're not politicians. They do have things to learn."

"There are going to be slips," he said, listing Sharp's comments. Sharp was out of the country on a trip, but INDOT spokeswoman Jessica Stevens said he was using 8-year-old data in the toll analysis.

And in another story today, about the Governor's call for board resignations, the reporter notes:
Asked Friday if the resignations could lead to the loss of institutional knowledge on some of these boards, Daniels said such knowledge is "overrated."
[See this earlier ILB entry today on the board resignation controversy.]

Posted by Marcia Oddi on Saturday, January 29, 2005
Posted to Indiana Government

Env't. - More on Gov. Blagojevich's landfill closings

Those of you who read the earlier stories from the Chicago Tribune on Illinois Gov. Blagojevich's ordering the closure of landfills owned by his father-in-law (see ILB entires from 1/11/05 and 1/16/05) will want to read this feature story by Monica Davey of the N.Y. Times, published last Monday Jan. 24th (and almost missed by me), that provides more information about the landfill controversy, plus interesting insights on what is involved in being a governor ...

Some quotes:

Politics is often a family business around here. Richard M. Daley, whom many consider this city's Mayor for Life, is the son of Richard J. Daley, the Mayor for Life before him. Lisa Madigan, the Illinois attorney general, is the daughter of Michael J. Madigan, speaker of the state House and chairman of the state Democratic Party.

So perhaps it should have come as no surprise that a family dinner here could deteriorate into a statewide political feud - complete with a defiant governor, a father-in-law's emotional news conferences, criminal investigations by at least three agencies, and the public looking on aghast, but also slurping up every sorry detail of a political dynasty in dysfunction.

"What I've discovered since I've been governor is that there's a certain loneliness to this job," Gov. Rod R. Blagojevich said in an interview. "There's a loneliness and a certain sadness because you have to isolate yourself to some extent. There are so many people who want so many different things from you."

The trouble began at a family get-together over the Christmas weekend. There, Mr. Blagojevich (pronounced bluh-GOY-uh-vich) heard about a landfill operation that was said to be following dubious business practices. The landfill was run by a relative of the family of Richard Mell, a Chicago alderman who happens to be the governor's father-in-law.

Since then, a war has unfolded between Mr. Blagojevich, 48, who has worked to portray himself as a reformer of this state's sometimes corrupt political culture, and Mr. Mell, 66, a powerful ward boss from the city's Democratic establishment who guided Mr. Blagojevich into politics. * * *

Mr. Blagojevich's election in 2002 returned the governorship to the Democrats for the first time in 26 years, and with the party holding majorities in the state House and Senate some people assumed smooth times were ahead for Democrats all over the state.

But Mr. Blagojevich battled with Mr. Madigan, the speaker few people dare cross, over how to solve the state's budget crisis. And he opposed Mayor Daley's wish to bring a casino to Chicago.

The governor irritated some lawmakers downstate, who griped that he cared only for his big city and that he had not bothered to move from Chicago to the governor's mansion in Springfield. Some Chicago leaders were growing irritated, too, saying the governor left little room for compromise or even conversation.

"I served on his transition team when he became governor, but the truth is, I can't even get my calls returned over there," grumbled William M. Beavers, a Chicago alderman. " Instead of him trying to get along, he tries to fight everyone." * * *

One day in 1992, Mr. Mell called Mr. Blagojevich over to his bungalow to suggest that he run for state representative. From there, Mr. Mell helped his son-in-law raise money and win support in successful bids for the state House, Congress, and most recently, the governor's job.

Then came the recent holidays.Mr. Blagojevich said he heard at his family gathering that a landfill in Joliet operated by a cousin of his wife was accepting types of construction debris that it was not licensed to take. The following week he assigned state workers to investigate and the state closed the landfill for several days.

"I have a responsibility as the governor of Illinois to protect the public interest, the public health, the environment," he said in an interview, "and in this particular case, that responsibility came up against the interest of a member of my family, and when I chose the public, he got mad."

Mr. Mell did not respond to a request for an interview last week, but earlier, he told local reporters that Mr. Blagojevich had picked on the landfill as a personal vendetta and as a way to cast himself once more as a reformer.

Mr. Mell went a step further, accusing Mr. Blagojevich's top fund-raiser of trading appointments to state commissions and boards for campaign donations, just the image the governor has tried to avoid. Mr. Mell cited an article in The Chicago Tribune that reported that 120 of Mr. Blagojevich's more than 700 appointments had gone to donors to his campaign.

Posted by Marcia Oddi on Saturday, January 29, 2005
Posted to Environment | General Law Related

Ind. Law - Proposed land use changes in Adams County

The Decatur Daily Democrat had a long story yesterday by J. Swygart on proposed changes to land use regulations, including the land application of livestock manure. According to the story, a meeting to unveil the updated requirements, held Thurs. evening, Jan. 17th:

drew a crowd of approximately 100 interested citizens -- 95 percent of whom were members of the Amish community. They heard plan commimssion attorney Dan Burry offer a synopsis of proposed changes to a 141-page county zoning ordinance that, when adopted, would affect all unincorporated areas of Adams County.

According to Burry, the county zoning ordinance has not been updated since 1996. The proposed changes unveiled Thursday have been discussed by the plan commission members at length, he said.

"We've been at this for a year and a half, and while (the zoning ordinance) is never going to be perfect, its purpose is to serve everyone in Adams County and to work towards a common goal," Burry said.

"The county commissioners and county council authorized the hiring of an engineering firm to prepare this zoning ordinance, but we decided that no one knows Adams County as well as we do, so we did it ourselves," said Burry.

Agricultural-related topics dominated the 90-minute meeting Thursday night, with sections governing intensive livestock operations and the application and storage of manure generating the most feedback from audience members.

In what Burry called a "major change" to the document, revisions contained in the proposed zoning ordinance would require "the owner of the livestock as well as the operator and/or owner of the facility upon which the intensive livestock operation is conducted" to obtain an Intensive Livestock Permit prior to operation.

But Decatur swine producer Paul Rumple noted that some area pork producers are contracted with out-of-state owners. Rumple himself contracts with the North Carolina-based Maxwell Foods, who are owners of the hogs he raises. "I'm not sure of the purpose of the joint permit, and I don't know how I'm going to get someone from North Carolina here to sign it."

But while questioning that provision of the proposed zoning rules, Rumple said other portions of the document were too lenient.

"Why do we not adopt Indiana Department of Environmental Management standards for manure application and IDEM specifications for the construction of manure pits?" Rumple asked. IDEM standards, which apply only to larger intensive livestock operations, tightly govern the amount and concentration of manure which may be field applied.

"IDEM standards protect our waterways," said Rumple. "This county is notoriously bad about spreading manure on frozen ground. We need some kind of application standards."

Neil Ogg, Adams County director of planning and zoning, said the county has neither the manpower nor the expertise to more tightly regulate manure application.

Burry added, "IDEM is a Johnny-come-lately outfit. They've not been regulating near as long as we have. Our thought is that we feel each of you producers is as concerned about your soil as anyone. Right now we don't want this ordinance to be so onerous that we're out testing people's fields."

Posted by Marcia Oddi on Saturday, January 29, 2005
Posted to Environment | Indiana Law

Ind. Courts - Proposal to make Marion County judges elected rather than appointed

The Indianapolis Star has a story today by Vic Ryckaert on House Bill 1703, which would make Marion County judges elected. Here is the digest to the introduced bill:

Marion superior court judges. Requires the 32 judges of the Marion superior court to be appointed by the governor for six year terms. Establishes the Marion superior court judicial nominating commission to submit candidates to the governor for appointment to the court. Provides that the judges are retained or rejected by the Marion County electorate every six years. Provides for the initial appointment of 17 judges before October 1, 2006, for terms beginning January 1, 2007, and ending December 31, 2008, with initial retention elections to occur at the 2008 general election. Provides for the initial appointment of the remaining 15 judges before October 1, 2008, for terms beginning January 1, 2009, and ending December 31, 2010, with initial retention elections to occur at the 2010 general election. Repeals the provision that requires the judges to be elected for six year terms.
The Star story reports:
Democrats are in a rage over proposed legislation that would make Marion County judges appointed instead of elected. While moving to appointed judges has drawn support from the legal organizations and the Indiana Supreme Court, Democrats view House Bill 1703 as a power grab. * * *

Republicans say it's time to select judges by merit. The change, they say, would remove the fund raising and campaigning that mar judicial elections. "I'm looking forward to working with the judges and coming up with a system that makes sense," said the bill's sponsor, Rep. Michael Murphy, R-Indianapolis. "How do we insulate a judge from not being slated (by the political party) because they didn't buy enough tickets to a chicken dinner?"

Murphy's bill would create a five-member commission to select two judicial candidates for each seat. One of those two candidates would be appointed to the bench by the governor. The Democratic and Republican chairmen of Marion County would serve on the commission, and three more members would be appointed by the governor. The bill would require that all judges -- including those now seated -- go through the appointment process. Once on the bench, judges would face a yes-no retention vote by voters every six years. * * *

Some powerful voices have been calling for a merit selection process for Marion County. Indiana Supreme Court Chief Justice Randall Shepard renewed his support in his State of the Judiciary address earlier this month. Shepard views Murphy's proposal as a "work in progress," said Shepard spokesman Dave Remondini. "Any bill that addresses merit selection is a step in the right direction," Remondini said.

The Indiana State Bar Association and the Indianapolis Bar Association have also endorsed merit selection. Judicial candidates raised more than $350,000 in 2002. Most of the cash came from attorneys who practice before them.

"Fund raising by judges has always been a problem," said John Kautzman, president of the Indianapolis Bar Association. "It puts them in a situation where they aren't always perceived to be as independent as they need to be."

Posted by Marcia Oddi on Saturday, January 29, 2005
Posted to Indiana Courts

Ind. Gov't. - Great majority of board appointees rebuff Daniels' call to resign

"Appointees rebuff Daniels: Several point-blank refuse to resign despite governor’s wish for new faces" is the headline to this story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

Only about a quarter of the Hoosiers Gov. Mitch Daniels asked to resign from 17 policy-making boards and commissions submitted resignations as of the deadline Friday. Of the slightly less than 120 people from whom resignations were sought, 33 resigned while 13 specifically rejected the request. Others did not respond. * * *

“The Indiana State Lottery was specifically designed to be above partisanship or even gubernatorial control,” wrote Fort Wayne executive Michael Gouloff in his letter declining Daniels’ request. “That is why in creating the Lottery, the legislative and executive branches agreed that in order to overcome political and ideological patronage in the transition of power, the terms of the Lottery Commissioners would extend beyond those of the appointing governor. “This gives the Lottery credibility, continuity and removal from political considerations.” Gouloff is chairman of the Indiana Lottery Commission, and his term ends in June.

Many of the letters declining to resign used pointed language and remarks suggesting similar concerns. * * *

Daniels said Friday he would not reappoint in the future those who did not offer to resign.

“Not all these boards have policy roles. Those that do of course we want the board members aligned with a program of change,” he said. “Frankly in some cases I think turnover is just a good idea. Let somebody else have a chance. We’ve got a lot of talented and public-spirited citizens in this state. Someone may have served for years and years. It may just simply be time to let someone else have a go.” * * *

[Fort Wayne executive Michael] Gouloff – The Fort Wayne-Allen County Airport Authority Board chairman is just months away from finishing his second term on the Indiana Lottery Commission, which has a two-term limit. He is a Democrat appointed by O’Bannon. “The new governor seems to be trying to administer government by executive order,” Gouloff told The Journal Gazette. “There has to be some continuity. I understand what he wants, but sometimes good things take time. He’s got to chill out.”

From the Indianapolis Star today, a story by Kevin Corcoran headlined "Governor's wish dealt a setback: Few appointees agree to resign so Daniels can fill state commissions with new members." Some quotes:
Gov. Mitch Daniels' unusual effort to quickly gain control of 17 state boards and commissions -- which do everything from setting education policy to running Indiana's license branches -- has hit a snag. Fewer than one-third of the nearly 120 people whose immediate resignations were sought a week ago agreed to quit by Friday's 5 p.m. deadline. The list of those who offered resignations included a smattering of both Democrats and Republicans.

"I certainly appreciate all those who stepped forward and offered," Daniels said Friday. * * * Daniels said "a large number" of the 33 people who resigned would be asked to continue if they support his agenda, and several have expressed interest. But, he said, "those who declined to take this offer will not be reappointed."

Some of those asked to resign, such as Terre Haute attorney Frederick T. Bauer, a veteran of nearly 32 years on the Commission for Higher Education, reminded Daniels of the limits of his executive power.

"For me to submit to this request would find me a participant in what painfully appears to be an effort to overturn a carefully considered legislative intent that commissioners' terms be staggered and that commissioners serve for a term certain -- not 'at the pleasure of the Governor,' " wrote Bauer, a former state lawmaker who helped write the state law that created the commission.

The Star story included this "breakdown of the 33 governor's appointees to 17 state boards, commissions and authorities who agreed to resign":
• Bureau of Motor Vehicles Commission, one of four appointees
State Board of Education, 0 of 10 appointees
• Hoosier Lottery Commission, two of five appointees
• Indiana Gaming Commission, three of seven appointees
Indiana Horse Racing Commission, five of five appointees
Commission for Higher Education, one of 14 appointees
• Unemployment Insurance Board, three of nine appointees
• Indiana Judicial Nomination Commission, 0 of six appointees
• Indiana Bond Bank, four of five appointees
• Professional Standards Board, two of 18 appointees
• Indiana Transportation Finance Authority, 0 of three appointees
• Indiana Development Finance Authority, three of six appointees
• Indiana Housing Finance Authority, one of six appointees
• State Office Building Commission, three of 13 appointees
• Indiana Ports Commission, 0 of seven appointees
• Public Employees' Retirement Fund, three of five appointees
• Teachers' Retirement Fund, two of five appointees
A story by Jennifer Whitson in the Evansville Courier& Press includes a number of quotes from letters to Daniels:
Gertrude Howard, an Evansville math teach on the Professional Standards Board, said she was offended by Gonzo's letter. "It sort of belittled our abilities to continue to do our work," she said. "(Daniels) doesn't know us. He doesn't know our capabilities." Howard, whose term ends mid-2007, said she would keep up the work.

Others who wrote in to decline the request to resign were obviously irritated by the curt letter from the governor's office.

Liz Peralta, who serves on the Judicial Nominating and Qualifications Commission, reprimanded Gonzo for the letter's tone. "Here are some alternative first paragraphs to your letter, sort of a kinder, gentler approach. Try it sometime!" the South Bend woman wrote. Her suggestions for openers were: "Gee, Liz, thanks for missing your daughter's birthday to attend a Commission meeting" or "That was swell of you to drive across the State of Indiana at 5:30 a.m. in the ... middle of winter to attend a meeting in Indy. Go, girl."

Asked Friday if the resignations could lead to the loss of institutional knowledge on some of these boards, Daniels said such knowledge is "overrated."

He said he may not accept all of the resignations but would only keep someone on a board if they bought into his philosophies.

"I would simply like the flexibility because in many cases, significant policy decisions are made in these boards and we're here to change policy in certain respects," Daniels said. "We will be selective about it but lingering, failed policies, I think, was probably not the legislature's intent.

[Update Sunday, 1/30/05] Leslie Stedman Weidenbener has a story today in the Louisville Courier Journal going over much the same ground as above, and ending with this paragraph:
Meanwhile, Daniels dismissed Democratic criticism last week that he was gutting institutional knowledge from boards and commissions that set important public policy for the state. He called such background "overrated."

Posted by Marcia Oddi on Saturday, January 29, 2005
Posted to Indiana Government

Friday, January 28, 2005

Ind. Decisions - Transfer list for week ending January 28, 2005

Here is the Indiana Supreme Court's transfer list for the week ending January 28, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Three cases were granted transfer:

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Indiana Transfer Lists

Ind. Gov't. - State government cutbacks in Illinois . . .

"State takes man's job --and his wheelchair" is the headline to a story today in the Chicago Tribune. Some quotes:

When the state laid off Arthur "Red" Burchyett a few weeks ago from his $47,000-a-year state park mechanic's job, he didn't just have to turn in his ID. Bureaucrats also repossessed the custom-designed, state-owned wheelchair that Burchyett, a paraplegic, had been using for more than a decade.

Since 1982, Burchyett had been repairing farm equipment and other vehicles at a wildlife refuge in far southern Illinois. Eleven years ago, after he lost the use of his legs in a tractor accident, the state paid $25,000 for a motorized chair specifically outfitted to help Burchyett perform his mechanic's duties.

Now it has been placed in a state pool where officials of Gov. Rod Blagojevich's administration say it will sit idle until either Burchyett gets recalled to work or another state employee can make use of its special features that can elevate someone to a standing position.

"The wheelchair that was designed for his accommodation as a mechanic has to remain state property," said Gayle Simpson, a spokeswoman for the Department of Natural Resources, the state agency that cut Burchyett's job. "He can't use it. It has to stay."

Apparently, no sooner did the paper hit the streets, however, than the Tribune was able to publish this update on its website:
UPDATE: Gov. Rod Blagojevich's office this morning announced the governor has ordered the Department of Natural Resources to return Arthur Burchyett's wheelchair and give him back his job. "Yes, these are tough times and we have to make tough decisions, but that has to be balanced with compassion and common sense," Blagojevich said in a prepared statement.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues three today

John Johnston, et al v. First Federal Savings Bank (1/28/05 IndCtApp) [Attorney's Lien]
Vaidik, Judge

An attorney who represented a client in a dissolution action sought to have the attorney’s lien on a house purchased by the client while the proceedings were pending take priority over the judgment lien of the client’s spouse from the same action. Because the house was not recovered by the attorney for the client, we find that the attorney was not entitled to an attorney’s lien on the property. * * *

The attorney’s lien statute has not been applied in the manner that Johnston suggests in a dissolution case, namely to an item specifically designated as not being a marital asset. See Putnam v. Tennyson, 50 Ind. 456, 458-59 (1875) (holding that an attorney who obtained a judgment of alimony for his client may, under the attorney lien statute, have a lien for his fees). Moreover, the rationale for allowing an attorney’s lien as explained by the Booram Court does not apply in this instance. In other words, an attorney would be entitled to a lien only upon property recovered for a client.

Here, Johnston did not recover the Crown Hill property for Korkos; Korkos bought it with his own funds, and it was specifically declared not to be a marital asset by the trial court. The Crown Hill property, not having been designated as a marital asset, was outside of the judgment of the trial court, and as such it could not be considered a “recovery” by Johnston. Therefore, Johnston is not entitled to an attorney’s lien on the Crown Hill property.
SULLIVAN, J., concurs.

MAY, J., dissents with separate opinion.
The case before us represents a rare if not unique situation where an asset was explicitly excluded from the marital pot yet was funded at least in part with assets that were or should have been included in the marital pot. Because the house was so funded, I believe it represents “something created by, or recovered for, the client,” Booram, 216 Ind. at 506, 25 N.E.2d at 330, and is therefore subject to an attorney’s lien. * * * The majority’s holding that the real estate does not represent something Johnston created or recovered for Korkos elevates form over substance. I would decline to do so and must therefore respectfully dissent.

John Goldsberry v. State of Indiana
(1/28/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
John Goldsberry appeals his convictions of and sentences for criminal recklessness, a Class D felony, and battery, a Class A misdemeanor. He raises several issues on appeal, which we consolidate and restate as:
1. Whether the trial court erred when it admitted evidence of prior physical altercations between Goldsberry and the victim and of phone calls Goldsberry made to the victim in the months after the crimes in question;
2. Whether Goldsberry’s convictions violate his right under the Indiana Constitution to be free from double jeopardy;
3. Whether Goldsberry’s sentences violate his Sixth Amendment right to trial by jury pursuant to Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), reh’g denied 125 S. Ct. 21 (2004); and
4. Whether the trial court erred when it prohibited Goldsberry from possessing or owning a firearm.
We affirm in part and reverse and remand in part. * * *

An exception to [the Blakely] rule is the fact of a prior conviction. The State argues Goldsberry waived his Sixth Amendment argument by failing to raise it at sentencing. Recently, a panel of this court held that a defendant did not waive his Blakely argument by failing to present it at trial because a defendant must knowingly and intelligently waive his right to trial by jury, which the defendant could not have done prior to knowing he had such a right. Strong v. State, 817 N.E.2d 256, 260-61 (Ind. Ct. App. 2004). We see no reason to stray from that holding here. * * *

Given the number of convictions in Goldsberry’s criminal history and the fact the court can find criminal history as an aggravator without the assistance of a jury, the trial court did not violate Blakely when it sentenced Goldsberry to more than the presumptive for criminal recklessness. * * *

The trial court ordered Goldsberry to serve a one-year sentence for battery as a Class A misdemeanor. Ind. Code § 35-50-3-2 provides: “A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year; in addition, he may be fined not more than five thousand dollars ($5,000).” * * * As the trial court can impose a one-year sentence for a Class A misdemeanor without any additional findings, Blakely is not implicated. * * *

Consecutive Sentences * * * The State also notes that numerous jurisdictions have held Blakely does not apply to consecutive sentencing decisions. We agree with the State. Recently, a panel of this court held Blakely does not apply to a trial court’s decision to order sentences to be served consecutively, Cowens v. State, 817 N.E.2d 255, 255 (Ind. Ct. App. 2004), and we reaffirm that holding here. * * *

[Ex post facto issue] Those statutes [see below] give the trial court authority to prohibit a person who commits an act of “domestic violence” from possessing a gun in the future. However, we have concern about the application of those statutes to Goldsberry.

Ind. Code § 35-38-1-7.7, subsection (b) of Ind. Code § 3-7-13-5, and subsection (g) of Ind. Code § 33-28-4-8 were all added to the Indiana Code pursuant to Public Law 195 – 2003. The additions and modifications in P.L. 195 – 2003 had an effective date of July 1, 2003. Goldsberry committed battery and criminal recklessness against Wilkerson on or about January 31, 2003, prior to the effective date of those statutes.

Both the United States Constitution and the Indiana Constitution prohibit ex post facto laws. See U.S. Const. Art. I, § 10, Ind. Const. Art. I, § 24. The analysis for whether a statute violates the ex post facto provisions is the same under the federal and state constitutions. The ex post facto clauses prohibit Indiana from enacting a law that “imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Our focus is not on whether the legislative change causes a “disadvantage.” Rather, we must determine whether the change “increases the penalty by which a crime is punishable” or “alters the definition of criminal conduct.”

[The Court then adapts a "two-part test" for determining whether a sanction is punishment.]

As the Act explicitly indicates it is to amend the criminal code and the legislature placed in Title 35 the statute ordering the trial court to make a finding of domestic violence upon sentencing, we believe the legislature intended the sanction to be a criminal punishment. Cf. Spencer, 707 N.E.2d at 1043 (holding legislature’s intent was civil where Act had no stated purpose and Act added only civil code sections). Therefore, application of Ind. Code § 35-38-1-7.7 to Goldsberry violates the ex post facto clauses of the federal and state constitutions, and we must reverse the trial court’s order finding Goldsberry committed an act of domestic violence.

Conclusion. The trial court’s admission of the prior acts was not erroneous and the admission of the phone calls was harmless error. Goldsberry’s right to be free from double jeopardy was not violated by his convictions of both criminal recklessness and battery. Goldsberry’s sentences do not violate the Sixth Amendment as explained in Blakely. However, the trial court’s order finding Goldsberry committed an act of domestic violence, which finding would indefinitely prohibit Goldsberry from owning a firearm, violates Goldsberry’s right to be free from ex post facto laws and must be reversed.
Affirmed in part and reversed in part.
BARNES, J., and CRONE, J., concur.

Melissa Lynn Gabbard v. Gerald Dennis (1/28/05 IndCtApp) [Attorney Fees; Statutory Interpretation]
Darden, Judge
Melissa Lynn Gabbard appeals the trial court's denial of her motion for an award for attorney's fees, costs, and expenses pursuant to [IC] 34-50-1-6 after she had made a timely qualified settlement offer to Gerald Dennis in Dennis' personal injury action against her and a jury had returned a verdict in her favor. We reverse and remand with instructions. * * *

On December 11, 2003, the trial court heard the parties' arguments. Dennis conceded that "a qualified offer . . . was sent" to him by Gabbard on August 29, 2000, and that he "received zero in [a] jury trial." However, Dennis argued that the counsel's affidavit regarding Gabbard's attorney's fees "doesn't set out time records, does not set out any kind of detail itemization for the Court." Gabbard's counsel responded that the statute only sets a maximum award of $1,000, with a maximum hourly of $100 for attorney's fees, and his affidavit was made "as an officer of the Court." Gabbard's counsel then proceeded to review the various legal tasks he had undertaken for Gabbard before trial and argued that "fees for the two days of jury trial alone were over $1,500.00" at an hourly rate of $100.

On January 5, 2004, the trial court issued an order granting Dennis' motion to set aside the order to pay $1,000.00 to Gabbard for attorney's fees, costs and expenses. The order did not indicate the basis therefor.

On February 5, 2004, Gabbard filed a motion to correct error, alleging that the trial court erred when it failed to take judicial notice of the litigation activity, including a two-day jury trial, and failed to afford appropriate weight to the unrebutted affidavit of Gabbard's counsel. A hearing was held on May 10, 2004, wherein Gabbard argued that the statute does not require the attorney's time to be "detailed in the affidavit" and that the statute specifically states "that the affidavit constitutes prima facie proof of the reasonableness of the amount." The trial court denied Gabbard's motion. * * *

The statute does not mandate that certain facts be contained in an affidavit in order to establish reasonable attorney's fees, costs, and expenses for the purpose of an award thereunder. The affidavit of Gabbard's counsel stated that her representation "greatly exceed[ed]" the statutory maximum of $1,000. The court's own record clearly reflects that counsel's representation of Gabbard required a significant amount of time and expense. Dennis did not challenge the prima facie proof presented by Gabbard's counsel showing that she had incurred attorney's fees, costs, and expenses in excess of $1,000. Given the language of the statute and the overwhelming evidence in the record before us, we can find no basis upon which the trial court could properly have denied Gabbard's motion. Accordingly, based upon the facts herein, we find that it was an abuse of discretion and contrary to law for the trial court to have not awarded Gabbard $1,000 for attorney's fees, costs, and expenses.

We reverse and remand with instruction to the trial court to enter an award to Gabbard in the amount of $1,000 for attorney's fees, costs, and expenses.
FRIEDLANDER, J., and MATHIAS, J., concur.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts three today

Jordan, Juanita v. Thompson, Donald L. (ND Ind., Theresa L. Springmann, Judge)

Before BAUER, POSNER and COFFEY, Circuit Judges.
COFFEY, Circuit Judge. Juanita Jordan filed a complaint on May 2, 2001 in federal court against her former employer, the City of Gary, Indiana, and her former supervisor Donald Thompson alleging sex discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., as well as defamation of character and violation of her freedom of speech. Following the defendant’s motion for summary judgment, the district court, Judge Theresa Springmann presiding, found as a matter of law that Jordan failed to present sufficient evidence as to any claim which would warrant a trial. The district court granted the defendants’ motion for summary judgment and entered judgment in their favor. We affirm.

Woodhaven Homes & Re v. Robbins, Douglas E. (ED Wis.)

Before BAUER, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case, which began as a minor copyright infringement dispute, has mushroomed into a protracted fight over, what else, attorney fees. * * *

Nat'l Org. for Women v. Scheidler, Joseph M. (ND Ill.)


Before ROVNER, WOOD and EVANS, Circuit Judges.
WOOD, Circuit Judge. On February 26, 2004, this court issued an order responding to the remand of this case from the Supreme Court of the United States. See Nat’l Org. for Women, Inc. v. Scheidler, 2004 WL 375995 (7th Cir. Feb. 26, 2004), on remand from Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 397 (2003) (NOW II). In that order, we acknowledged the issues that were resolved by the Supreme Court, and we identified one question that remains in the case. The defendants then filed petitions for rehearing and rehearing en banc from that order. This opinion responds to those petitions. * * *

In closing, we wish to re-emphasize that this remand is not a “green light” to start this old litigation anew. The plaintiffs have lost their bid to have a nationwide injunction based on the 117 acts that the Supreme Court has now decreed do not qualify as “extortion” for purposes of the Hobbs Act and RICO. From what we can tell of the record, it appears that it would be an abuse of discretion for the district court to re-enter any nationwide injunction based only on the four remaining acts of violence found by the jury. Such an injunction would violate the rule requiring courts to tailor injunctive relief to the scope of the violation found. We note as well that the Freedom of Access to Clinic Entrances Act, 18 U.S.C. §248, has now been in effect for five more years since the district court first considered the necessity of a nationwide injunction, and experience may require a reassessment of the Act’s impact. Finally, it is too late in the day for the plaintiffs to try to seek additional damages relief for acts that they could have addressed at the original trial. The only remaining question is therefore whether any injunction is appropriate to redress the four acts of physical violence that the jury found had taken place and that were not encompassed within the Supreme Court’s ruling. This does not open Pandora’s Box. It merely resolves the final loose ends in this long-running litigation in a manner that is fair to both sides and that acknowledges the need to resolve all properly presented issues. The case is REMANDED to the district court for further proceedings consistent with this opinion. * * *

MANION, Circuit Judge, joined by KANNE, Circuit Judge, dissenting from the denial of petition to rehear en banc. Following more than eighteen years of litigation, a sevenweek jury trial, and two trips to the United States Supreme Court, the Supreme Court held in Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003), that “all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed,” and that “[w]ithout an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.” Id. at 410 (emphasis added). Nonetheless, on remand, a panel of this court concluded that not “all of the predicate acts” were reversed, but that the jury’s finding of four predicate acts or threats of violence remained viable. National Org. for Women, Inc. v. Scheidler, 2004 WL 375995, at *3 (7th Cir. Feb. 26, 2004). Today on rehearing, the panel reaffirms that remand order, while unnecessarily debating, but not deciding, the scope of the Hobbs Act. Because I believe that the Supreme Court meant what it said, and because, in any event, the underlying four predicate acts of violence cannot, as a matter of law, constitute an independent violation of the Hobbs Act, I dissent from the denial of the petition for rehearing en banc.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Indiana boards "on the chopping block"

Following along on the progress of the Governor's board bills, the Fort Wayne Journal Gazette reports today, in a story by Niki Kelly:

More than 200 state boards and commissions are on the chopping block under a bill heard Thursday that is backed by Gov. Mitch Daniels.

House Bill 1188 aims to eliminate ineffective or wasteful boards and commissions that exist in state government, many of which cost Indiana per-diem pay and travel reimbursements.

Some of the entities haven’t met in years or involve more minor issues, such as the Boiler and Pressure Vessel Rules Board; the Civil War Flags Commission; the Indiana Egg Board and the Indiana State Capitol Athletic Council.

Others, though, have major regulatory or policy roles, including the Education Roundtable, State Board of Education, State Ethics Commission, Indiana Board of Tax Review and the troubled Intelenet Commission.

“A review of these boards and commissions and their functions is needed to determine if they are still needed or should be abolished,” said Rep. Rich McClain, R-Logansport, author of the bill. * * *

The bill, which was amended in committee, ironically would re-establish the Indiana Government Efficiency Commission to examine the other boards and commissions in the bill and recommend to the governor whether the entities should remain. * * *

Rep. Win Moses Jr., D-Fort Wayne, thinks the bill excludes public input. “It’s well-intentioned but ill-conceived,” he said. “He wants to streamline state government, but he’s doing it by taking all the power into his hands.”

An editorial today in the Journal Gazette continues this discussion:
* * * Weeds in the garden of good government? How about the Indiana State Board of Education? The Child Protection Team? The Indiana Election Commission? How about the Maumee River Basin Commission?

Each is among the 337 boards, commissions and advisory committees identified in legislation to carry out the governor’s review. House Bill 1188, sponsored by Republican Richard McClain of Logansport, would establish a one-year moratorium on all boards and committees created by statute. It directs the governor to recommend to a legislative council what boards should be continued, combined or repealed.

Senate Bill 625, sponsored by Republican Murray Clark of Indianapolis, takes a more moderate approach. It terminates about 225 boards on July 1, 2006, allowing the governor, by executive order, to continue any board based on a recommendation from a re-established Government Efficiency Study Commission.

It’s easy to point to the Civil War Flags Commission, the Egg Board and the Indiana Hypnotists Committee and suggest that Hoosiers can live without their services. But all were created with the consent of the General Assembly. Elected officials at one time determined there was a need for each commission, yet the House bill would place a one-year moratorium on their operations, unless allowed by the governor or the chairman or vice chairman of the legislative council. That leaves vital services vulnerable to interruption. * * *

Both the House and Senate versions of the legislation invest a great deal of authority in a handful of individuals, including an efficiency commission that includes no elected officials.

Daniels may be right that the state needs to review its stable of boards and commissions, eliminating any that are obsolete or redundant. The manner proposed to achieve that goal, however, threatens services and oversight that Hoosiers have grown to depend on. Lawmakers should insist that more time and public review be built into the process.

For background, see this earlier ILB entry.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Indiana Government

Env't. - Stories today from Kentucky on Tyson Chicken and on mountaintop-mining

Another story on the Tyson chicken settlement, this one by John Lucas in the Evansville Courier& Press. A quote:

Aloma Dew, the Sierra Club's Midwest representative in Kentucky, described the lawsuit and its resolution as a "David versus Goliath battle."

"They (companies) tend to go into areas where there are not as many people usually, but where they think people are not going to have the means or initiative to fight back," Dew said. "These women have fought back. They're strong, strong women."

Dew said two rulings by U.S. District Judge Joseph McKinley were important.

The judge extended responsibility, or liability, for reporting of emissions to Tyson. The company contended the chickens were grown under contract with individual growers and it had no responsibility for operation of the broiler houses.

Judge McKinley also held that emissions from a broiler house complex should be considered as a whole for reporting purposes. The company had argued each chicken house should be considered individually.

Unfortunately, I have been unable to locate copies of these opinions.

"Three groups sue over permits for valley fills: Mining practice blamed for destroying streams" is the headline to this story today in the Louisville Courier Journal. It begins:

Three environmental groups sued the federal government yesterday to force more regulation of coal companies that fill in Eastern Kentucky valleys and streams with rock and dirt from mountaintop mining.

The issue of so-called valley fills has long evoked passionate debate in Appalachia, where some residents say mountaintop mining produces developable land, but others object to the environmental toll it causes.

The lawsuit filed in U.S. District Court in Lexington claims the Army Corps of Engineers improperly issued permits under a process that does not require public comment or extensive scrutiny of whether the coal waste was harming the environment.

The groups said they were encouraged by a federal court ruling last year in West Virginia on a similar suit filed by other citizen groups. A judge ruled that the corps can no longer issue valley fill permits through a streamlined process that is intended for mining that causes only minor damage.

The ruling is under appeal and does not apply to valley fills in Kentucky. Valley fills occur during mountaintop mining, which involves shearing off the tops of mountains to get at coal.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Environment

Ind. Law - IEDC bill amended again, this time in Senate Committee

Niki Kelly reports today (2nd item) in the Fort Wayne Journal Gazette that:

The Senate Appropriations Committee voted 8-0 Thursday to send House Bill 1003 to the full Senate for discussion. The legislation further defines the Indiana Economic Development Corp., a public-private entity set to take over job creation and economic development efforts for the Indiana Department of Commerce. * * *

The committee made numerous changes to the bill Thursday, including requiring the board to formulate rules under the same public process other agencies must use; be audited by the State Board of Accounts; and allowing it to enter into contracts without approval from the attorney general or any other state officer.

“This is a bill that sharpens the point of the spear in terms of economic development,” said Sen. Joe Zakas, R-Granger. “I hope it will be a great weapon.”

Several Democratic amendments were defeated, including an attempt to ensure an appointee from each congressional district.

The Evansville Courier& Press story by Jennifer Whitson reports:
"The whole point is to make this corporation much more nimble than state government can be," said Sen. David Ford, R- Hartford City. Ford offered the changes that would set up a nonprofit to field all donations to the corporation and require an annual state audit of the nonprofit; require the corporation to adopt its internal rules through the same public process state agencies must use; and allow the corporation to add its employees to state health insurance and benefits plans.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - One year cooling-off period before legislators switch sides?

"Panel OKs curbs on ex-legislators: House committee endorses bill to force former lawmakers to wait a year before taking lobbyist jobs," is the headline to a story today by Indianapolis Star political reporter Mary Beth Schneider. some quotes:

Legislators with their eyes on lobbying jobs would have to wait at least a year under a bill that passed a House committee Thursday.

It's believed to be the first time a bill imposing a cooling-off period for lawmakers has made it out of a legislative committee. The chances of the bill becoming law this year, though, are good. It has the backing of House Speaker Brian Bosma, R-Indianapolis, and Senate President Pro Tempore Robert D. Garton, R-Columbus.

Bosma has backed the measure, House Bill 1090, from the beginning, saying it's needed to improve the public image of the legislature.

Garton, though, has opposed the measure in the past as an unnecessary restriction of a person's right to earn a living and will only reluctantly support it this year. "The governor wants it, and I said I'd support him as much as I can," Garton said.

Gov. Mitch Daniels has, by executive order, placed a one-year ban on executive branch employees becoming lobbyists. That and other ethics reforms for the administrative branch are included in another measure, House Bill 1002.

Rep. David Frizzell, R-Indianapolis, sponsor of HB 1090, told the House Government and Regulatory Reform committee the bill is needed to change the perception of lawmakers. He noted that 28 states have such bans. Of those, 19 have one-year bans.

The Fort Wayne Journal Gazette has a story by Niki Kelly that begins:
Lawmakers would not be able to register as lobbyists for one year after their departure from the legislature under a bill that received initial approval Thursday.

House Bill 1090 provides a cooling-off period before legislators switch sides, something that has been occurring with more frequency in recent years. At least three former lawmakers who were defeated or gave up their seat in 2004 are lobbying this year.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Indiana Government | Indiana Law

Indiana Courts - Filling Judge Payne's seat on the Marion County Superior Court

The Indianapolis Star has this story today today headlined "5 nominated for judge's post: GOP offers candidates to fill the seat vacated by Judge Payne's move to child welfare job." The story reports that:

There's no guarantee the new judge will take over juvenile court, but Payne's departure signals a major change that will affect the thousands of children who go through the court every year. Judges are considering changes, such as adding a second juvenile court judge and implementing a family court.

"We're going to go through some exciting changes in the way we handle juvenile and family law cases," said Cale Bradford, the presiding judge of the county's 32 Superior Courts. "The public expectations should be high. We will meet those expectations."

Senior Judge Richard Good is overseeing the court while the search is being conducted for a replacement.

In Marion County, the juvenile court judge has more authority and more responsibility than any other elected judge. While most judges manage a staff of about seven people, the juvenile court judge oversees about 220 employees, runs a secure detention center and manages an $11.1 million budget. * * *

There's a chance that whoever is appointed to fill Payne's seat will not end up in juvenile court. Judicial assignments are made by Bradford and two other judges who sit on the Superior Court's executive committee.

Three sitting judges -- Republican William Young and Democrats Evan Goodman and Tanya Walton Pratt -- have expressed interest in moving to the juvenile court, Bradford said.

Another change for the court could be assigning a second judge to hear cases. Bradford said it is a credit to Payne that he managed to handle all the court's responsibilities by himself for the past two decades.

Within the next two years, Bradford said, he hopes to turn Marion County's juvenile court into a family court, which would hear all matters involving children and families.

Family courts, which operate in Boone, Johnson, Monroe and more than a dozen other Indiana counties, have jurisdiction over custody, domestic violence, delinquency and other family-oriented cases.

Andrea Marshall, executive director of Prevent Child Abuse Indiana, applauds the idea of bringing a family court to Marion County. She said it's time to find alternatives that will help troubled youths without turning them into criminals.

"I think it's time to try a different approach and see if it will give us better results," Marshall said, "because the current system is not giving us the outcomes we want."

The five names that have been given to Gov. Mitch Daniels by Marion County's GOP chairman Mike Murphy are identified by the Star as:
• Julie Cartmel, a juvenile court magistrate
• Marilyn Moores, an attorney and a former City-County Council member
• Tim Oakes, executive director of the Indiana Cable Telecommunications Association
• Mark Renner, the Marion Superior Court administrator
• Carol Terzo, a Marion Superior Court commissioner, who runs the child support court

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Indiana Courts

Ind. Courts - Appeals Court intervening in Conner Prairie lawsuit

"Appeals court intervening in Conner Prairie lawsuit" is the headline of a brief story today in the Indianapolis Star. This dispute between the Indiana Attorney General and Earlham College over the future control of Conner Prairie has thus been taken to a new level. Here are quotes from the Star story:

The Indiana Court of Appeals agreed this week to intervene in a Hamilton County lawsuit over the future control of Conner Prairie.

A panel of appellate judges reviewing the request for intervention, made by Earlham College, has agreed to determine whether gifts of stock to Earlham to finance the living-history museum are legal trusts or restricted endowments.

Indiana Attorney General Steve Carter, who initiated a lawsuit in an attempt to make Conner Prairie an independent entity, contends the gifts of Eli Lilly and Co. stock constitute trusts under Indiana law.

As such, Carter claims, state law requires a public accounting, which he says is needed to fairly determine how much money Earlham, as the museum's trustee, should surrender for its continued success.

Earlham representatives argue that the gifts of stock from Eli Lilly, grandson of the pharmaceutical company's founder, were bestowed as endowments that can be used by Earlham for both Conner Prairie and Earlham College. They say the gifts are not subject to trust law. * * *

In voting to intervene, the appellate judges said the nature of the stock gifts involves "substantial questions of law, the early determination of which would promote a more orderly disposition of the case."

What this dispute is about, exactly, is hazy to me. (Richmond attorney and blogger E. Thomas Kemp has posted a number of entries on this topic over the past months, in his Kemplog, but there does not seem to be a way to pull them all up.) [*But see below.]

I've accessed the docket in the interlocutory appeal, Earlham College v. State of Indiana, ex. rel. and posted a copy here. I am going to try to obtain additional information - check back here later today.

[Update] Kemplog has now posted this useful index to its Earlham entries - scroll down the page to access them all.

Note: Here is the Court's 1/25/05 order.

Posted by Marcia Oddi on Friday, January 28, 2005
Posted to Ind. App.Ct. Decisions | Indiana Courts

Thursday, January 27, 2005

Ind. Decisions - Three today from Court of Appeals

Jay K. Walters v. The Grant County Council (1/27/05 IndCtApp) [Statutory Interpretation]
Friedlander, Judge

Grant County Assessor Jay K. Walters appeals the trial court’s grant of summary judgment in favor of the Grant County Council, the Grant County Board of Commissioners, and the Grant County Auditor (collectively referred to as “the Council”) in Walters’s declaratory judgment action seeking to compel the Council to appropriate funds from the Property Assessment Fund upon Walters’s recommendation. Walters presents one issue for our review: Did the trial court err in granting the Council’s summary judgment motion? We affirm. * * *

Here, we cannot say that I.C. § 6-1.1-4-28.5 clearly shows an intention by the legislature to eliminate the county council’s historic discretion in county fiscal matters. See also Warrick County Comm’s v. Warrick County Council, 706 N.E.2d 579 (Ind. Ct. App. 1999), trans. denied, (holding that county commissioners did not have the power to compel the county council to appropriate funds to pay executive director’s salary). The trial court did not err in granting the Council’s summary judgment motion. Judgment affirmed.

BAKER, J., and SHARPNACK, J., concur.

Willene Gray, Widow of Willie Gray v. Daimler Chrysler Corporation (1/27/05 IndCtApp) [Worker's Compensation; Constitutional Law]
Robb, Judge
* * * Gray raises one issue for our review, which we restate as whether Indiana Code section 22-3-7-9(f)(1) as applied violates Article I, Section 23 of the Indiana Constitution. * * *

Here, our legislature has struck an economic balance between the interests of individuals who suffer from occupational diseases and their employers. The statute of repose in Indiana Code section 22-3-7-9(f)(1) reflects the legislative determination that disablement occurring more than three years after the employee’s last work-related exposure to silica dust is not an injury for which employers should be liable. It also promotes certainty and finality by limiting the exposure of employers to three years after the last work-related contact with silica dust. The distinction between individuals who suffer disablement within three years of their last exposure to silica dust and those who do not suffer disablement within three years is rationally related to serving these legislative goals and is a permissible balancing of the competing interests involved here. Were we to conclude that Indiana Code section 22-3-7-9(f)(1) did violate Article I, Section 23 of the Indiana Constitution, we would be upsetting the balance created by the legislature, and, in effect, usurping the powers of the legislature by essentially rewriting this statute. See Bunker, 441 N.E.2d at 13. Although we recognize that this result is harsh, we believe we must conclude that Indiana Code section 22-3-7-9(f)(1) as applied is not unconstitutional pursuant to Article I, Section 23.

Conclusion. We conclude that Indiana Code section 22-3-7-9(f)(1) as applied is not unconstitutional pursuant to Article I, Section 23 of the Indiana Constitution. We therefore affirm the Board’s order granting Chrysler’s motion to dismiss. Affirmed.

RILEY, J., and CRONE, J., concur.

Larry D. Best, Jr. v. State of Indiana (1/27/05 IndCtApp) [Criminal Law & Procedure]
Robb, Judge
* * * Conclusion. We conclude that the search of the Treaty Line Road property did not violate Best’s Fourth Amendment rights. Nevertheless, Best had standing under Article I, Section 11 to challenge the search. The trial court did not err in finding that the search warrant was facially defective. However, because the police officers relied on the search warrant in good faith, the trial court correctly concluded that the evidence found at the Treaty Line Road property should not be suppressed. The trial court properly found that the evidence seized at the East Water Street residence should not be suppressed. For these reasons, we affirm the trial court’s decision. Affirmed.
KIRSCH, C.J., concurs.

BAKER, J., concurs with separate opinion.
I concur with the majority’s holding that the evidence seized by the police officers in these circumstances should not have been suppressed. But I part ways with the determination that Best’s Fourth Amendment rights may not have been violated with respect to the Treaty Line Road Property. * * *

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from Supreme Court

Lanny D. Abney v. State of Indiana (1/27/05 IndSCt) [Criminal Law & Procedure]
Rucker, Justice

* * * Prior to retrial, Abney filed a motion to suppress the results of the blood test, which the trial court denied after a hearing. Upon Abney’s request the trial court certified its order for interlocutory appeal, and the Court of Appeals accepted jurisdiction. On review the Court of Appeals affirmed the judgment of the trial court. See Abney v. State, 811 N.E.2d 415 (Ind. Ct. App. 2004). In so doing the Court of Appeals determined that Indiana Code § 9-30-6-6(g) allowed for the warrantless non-consensual taking of blood samples in cases involving serious bodily injury or death, regardless of whether a physician was reluctant to take the sample. Id. at 422. Abney petitioned this Court for transfer contending among other things that the Court of Appeals’ opinion in this case conflicts with other Court of Appeals opinions, namely: Guy v. State, 678 N.E.2d 1130 (Ind. Ct. App. 1997); Spriggs v. State, 671 N.E.2d 470 (Ind. Ct. App. 1996); and State v. Robbins, 549 N.E.2d 1107 (Ind. Ct. App. 1990). * * *

Indiana’s implied consent statutes provide the State with a mechanism necessary to obtain evidence of a driver’s intoxication in order to keep Indiana highways safe by removing the threat posed by the presence of drunk drivers. Brown v. State, 774 N.E.2d 1001, 1005 (Ind. Ct. App. 2002). As the Court of Appeals has observed, Indiana Code § 9-30-6-6(g) is designed as a tool to acquire evidence of blood alcohol content rather than as a device to exclude evidence. Guy, 678 N.E.2d at 1134; Spriggs, 671 N.E.2d at 472. In our view, limiting Indiana Code § 9-30-6-6(g) to those instances in which a physician refuses to draw blood is inconsistent with the intent of the implied consent statutes. Contrary language in Robbins, Glasscock, Spriggs, and Guy is hereby disapproved. We therefore grant Abney’s petition to transfer and adopt the opinion of the Court of Appeals in this case.

Conclusion. We affirm the judgment of the trial court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

Sherman C. Debro v. State of Indiana (1/27/05 IndSCt) [Criminal Law & Procedure]
Rucker, Justice
We grant transfer in this case to address the question of whether a plea agreement based on a withheld judgment is a nullity per se and thus void ab initio. We conclude it is not. * * *

Conclusion. We affirm the judgment of the trial court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Ind. Sup.Ct. Decisions

Law - Story today from Chicago on "woman-owned" business

"Duff mom interview stuns city investigator" is the headline today to this story in the Chicago Tribune by Matt O'Connor. Some quotes:

As a city investigator interviewed Patricia Green Duff, the purported head of a woman-owned janitorial company, her son, James, sat close by, coaching her and writing down answers for her to give, prosecutors have contended.

Nevertheless, the August 1999 interview over the phone didn't go well, according to testimony Wednesday at a federal trial.

The city investigator, checking on the veracity of Windy City Maintenance's status as female-controlled, was "stunned" when Mrs. Duff couldn't answer a fundamental business question--how to determine the cost of the company's services in order to bid on work. * * *

James Duff pleaded guilty recently to hiding his role as the real power behind the family's phony woman- and minority-controlled businesses that reaped more than $100 million in city business. Patricia Green Duff, 76, charged with pretending to be boss of Windy City Maintenance, has been excused from trial after doctors found her mentally incompetent. * * *

In a pretrial filing, the government alleged that before the 1999 interview, James Duff had his office manager tutor his mother for about two weeks on Windy City Maintenance business operations in a bid to fool city officials into thinking she really ran the company.

When Duff sat in on the tutoring sessions, he sometimes lost his temper when his mother misstated details on how the business functioned, the government said.

During the phone interview, Mrs. Duff maintained she made the day-to-day business decisions for Windy City Maintenance, even contending that she still made "cold calls" to drum up sales, according to Cunniff's report, which was admitted into evidence. * * *

Windy City Maintenance obtained more than $37 million from the city to do janitorial work at the international terminal at O'Hare International Airport, the Harold Washington Library and the 911 Center.

Stanley Ryniewski, who formerly worked for the city at the 911 Center, said he negotiated a deal with James Duff to also remove snow from the parking lot.

Stanley Gaynor, president of Tishman Midwest Management Corp., which managed the library, testified Windy City Maintenance wouldn't have been considered for the janitorial contract at the library if it hadn't been certified by the city as a women business enterprise.

[More] See also this story from the Tribune: "How firm beat city set-aside program: White-owned concrete company created minority firms to get increased share of business with the city."

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to General Law Related

Ind. Law - Senate likely to OK gay-marriage ban, panel's leader says

"Senate likely to OK gay-marriage ban, panel's leader says" is the headline to this report today in the Indianapolis Star:

The Senate Corrections, Criminal and Civil Matters Committee is likely to take up a joint resolution Feb. 9 that could lead to a constitutional amendment banning same-sex marriage, the panel's chairman said Wednesday. The measure, authored by Sens. Brandt Hershman, R-Wheatfield, and Allie Craycraft, D-Selma, states that in Indiana, marriage will consist solely of the union between a man and a woman.

If the General Assembly passes Senate Joint Resolution 7 this year, a separately elected legislature would have to pass an identical measure before the proposed change could appear on the statewide ballot.

"I expect that to pass committee and the Senate, since it passed 42-7 last year in a very strong bipartisan vote," the committee's chairman, Sen. David Long, R-Fort Wayne, said. "We will give it a fair hearing, probably an hour for each side, most likely in the Senate chamber."

Long said the measure is needed even though the Indiana Court of Appeals ruled last week that the Indiana Constitution includes no right for same-sex couples to marry. "What you have to remember is courts can change their minds. What one court says today may change tomorrow," Long said. "I think that will make a rock-solid statement about where Indiana stands on the institution of marriage. Only that statement would be able to stand the test of time."

Here is the link to SJR 007. The measure would add a new Section 38 to Article 1, Bill of Rights, of the Indiana Constitution, to read:
(a) Marriage in Indiana consists only of the union of one (1) man and one (1) woman.

(b) Neither this Constitution nor any other Indiana law may be construed to confer marital status or any legal incidents of marriage upon unmarried couples or groups. [emphasis added]
See also this Nov. 12, 2004 ILB entry on the legal issues raised by the passage of similar constitutional amendments by Kentucky and Ohio last November.

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Indiana Law

Ind. Gov't. - More on broadband issue

The Muncie Star-Press has a story today on HB 1148, headlined "Bill would disconnect government from broadband service." It begins:

Broadband communication is growing in Indiana, and there's a debate in the Legislature about whether local government should be involved.

State Rep. Jack Lutz, R-Anderson, chairman of the House Utility and Energy Committee, authored a bill that would prohibit local government from owning or operating telecommunications, cable or other information services if private industry already provides or intends to offer the service.

While SBC and other telecommunications companies support the legislation, representatives of Indiana Cities and Towns Association oppose it, saying it would virtually stop government from entering the broadband market.

"It is not my intent to rob anybody out of high speed broadband access," Lutz said. "This is a bill that is still under construction."

Matt Greller, IACT's executive director, said municipal officials oppose the bill because it would eliminate competition for broadband service.

"This bill would drag out the time it will take to bring broadband to every home or business," said Greller, pointing to the requirement of public hearings and studies to decide whether other providers could offer service.

Marion Mayor Wayne Seybold recently took action to get wireless broadband in that city to attract and keep business. Greller said government, especially in rural areas, had to step in when private telecommunications companies said the market was not there.

Access Tuesday's ILB entry on this topic here.

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Indiana Government

Env't. - Several stories today

"Tyson agrees to monitor air for ammonia at chicken farms" is the headline to this story today in the Louisville Courier Journal. Some quotes:

Tyson Foods has agreed to spend up to $500,000 to monitor air for ammonia at two chicken farms it owns in Western Kentucky, the company announced yesterday. As part of a settlement in a federal lawsuit brought by the Sierra Club and three Western Kentucky residents, the poultry giant also agreed to plant buffers of trees at other locations, club members and Tyson officials said. The farms are in Webster, McLean and Hopkins counties.

Sierra Club leaders called the agreement a major victory. "This is an admission they are a factory, not a farm," said Aloma Dew, an Owensboro resident and Sierra Club representative.

If the air monitoring reveals what the environmental group's own screening has shown, the company could be compelled to curb ammonia emissions after further legal action, said John Harbison, a lawyer for the environmental group.

Tyson spokesman Gary Mickelson said there's nothing in the settlement that specifically requires any farm to reduce its ammonia emissions. But company officials said they are happy to resolve the matter with monitoring and tree planting. * * *

Dew said three plaintiffs in the case -- Mary B. Edwards, Leesa Webster and Norma Caine, who live near the large farms -- will receive financial compensation. Those terms are to remain confidential, she said.

Caine, who lives in Webster County, said in a statement: "After a long battle, we have won a victory for all the other families suffering from factory farm pollution. We hope other citizens will now be able to speak up, and protect communities throughout Kentucky from this kind of pollution -- for our families and our future."

U.S. District Judge Joseph H. McKinley Jr., is expected to sign the agreement this week, making it final, Dew said.

The 2002 lawsuit claimed that the farms -- with hundreds of thousands of chickens at each -- were so large that they should be regulated under some of the same federal air-pollution laws adopted primarily to control emissions from factories, refineries and chemical plants.

The same lawsuit produced a ruling in November 2003 with potential national implications. In that decision, a judge determined that Arkansas-based Tyson shares responsibility for air pollution from large farms it helps to operate in Western Kentucky. Previously, Tyson had maintained that farmers who grow Tyson chickens under contract are primarily responsible.

Mickelson downplayed the significance of the lawsuit and settlement as a potential legal precedent, but he said information gained from the ammonia monitoring -- to be done by Iowa State University researchers -- could help the company at other locations.

There are more than 120 farms in Kentucky and 70 in Indiana where chickens are raised for Tyson. People who live near some of these farms have long complained about strong odors and swarms of flies from manure.

An AP story by Rick Callahan bears the headline "Old power plants as dirty as ever: Overall air quality in state improving." It begins:
Pollution worsened at many of Indiana's oldest coal-fired power plants between 1995 and 2003, sullying regional air quality despite an overall decline in state power-plant emissions, a new report concludes.

The report, released yesterday by Clear the Air, a Washington-based environmental coalition, blames the trend on federal rules that permit utilities to avoid cleaning up their dirtiest plants by purchasing pollution "credits" from utilities with cleaner-burning plants.

Here is the Clean the Air website; here is their news release and 64-page report (somewhat slow loading).

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Environment

Ind. Decisions - More on potential Camm retrial

"$20,000 bond set for Camm in murder case" is the headline to this story today in the Louisville Courier Journal. Some quotes from the story by Ben Z. Hershberg:

BOONVILLE, Ind. -- Former Indiana state trooper David Camm -- facing a retrial on charges of murdering his wife and two children -- may be released from jail on a $20,000 cash bond, a judge ruled yesterday.

Katharine Liell, one of Camm's lawyers, said the bond should be posted and arrangements made for his release from the Floyd County Jail within a couple of days. * * *

Camm was convicted in March 2002 of shooting his wife Kimberly, 36, and their two children -- Bradley, 7, and Jill, 5 -- in the garage of their Georgetown-area home.

But the Indiana Court of Appeals overturned the conviction last August on grounds that testimony in his trial from a dozen women who said he had affairs with or propositioned them unfairly biased the jury.

Floyd County Prosecutor Keith Henderson refiled the murder charges in November, and the case was moved to Warrick County Superior Court in Boonville because of the intense publicity surrounding the first trial. * * *

In her arguments for Camm's release, Liell said that the case against him was weak and that Henderson was attempting to reuse evidence discredited in the first trial. She said the Court of Appeals decision makes it clear the evidence against Camm "is far from overwhelming."

She presented three witnesses who testified yesterday -- as they did in Camm's first trial -- that they played with or observed Camm in a pick-up basketball game at a Georgetown church at the time investigators determined his family was murdered on the night of Sept. 28, 2000.

Here is the Court of Appeals decision: David Camm v. State of Indiana (8/10/04 IndCtApp).

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Indiana Courts

Ind. Gov't. - Three gaming officials resign positions

"Three gaming officials resign positions" is the headline to this Lesley Stedman Weidenbener report today in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS -- Three of the seven members of the Indiana Gaming Commission -- including Norm Melhiser of New Albany -- have submitted resignations in response to requests from Gov. Mitch Daniels. But more could come this week.

Daniels mailed letters to the seven members -- along with members of 16 other boards and commissions -- last week requesting the resignations by tomorrow. He said he expects those members to "do the right thing" by resigning so he can appoint people who back his own policies and philosophies.

So far, a total of 17 board members have resigned, said the governor's press secretary, Jane Jankowski. Two board members -- neither on the gaming commission -- have refused.

Daniels has said he won't accept all of the resignations.

The 17 boards were listed in this Indianapolis Star story last weekend. They are:
• Bureau of Motor Vehicles Commission
• State Board of Education
• Indiana Gaming Commission
• Hoosier Lottery Commission
• Horse Racing Commission
• Commission for Higher Education
• Unemployment Insurance Board
• Judicial Nominating Commission
• Indiana Bond Bank
• Professional Standards Board
• Indiana Transportation Finance Authority
• Indiana Development Finance Authority
• Indiana House Finance Authority
• State Office Building Commission
• Indiana Ports Commission
• Public Employees' Retirement Fund
• Teachers' Retirement Fund
Find recent entries titled "Still more on Gov. Daniels' plan to 'prune' boards" and "Authority of the Governor over Executive Branch appointees," here and here, respectively. Or click on the "Ind. Goovernment" category in the right column.

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Indiana Government

Ind. Courts - Judges' pay raise bills being considered

Two stories today on the possibility of a pay raise for Indiana judges this year. The Fort Wayne Journal Gazette has this report today, in a story by Niki Kelly headlined "Pay-increase bill for state’s judges clears committee." Some quotes:

INDIANAPOLIS – The Senate Judiciary Committee voted 9-0 Wednesday to provide automatic annual salary adjustments for the state’s judges and prosecutors in years when the General Assembly does not give a raise.

House Bill 363, which now moves to the full Senate, would tie the annual cost-of-living increases to the same level given to similar state employees in the executive branch. Those increases have ranged from zero to 4 percent since 2001.

A 1 percent increase would cost the state about $500,000, according to a fiscal impact statement on the bill. A 5 percent increase would cost $2.4 million.

Trial judges currently earn $90,000 and haven’t received a pay raise since 1997. Magistrates and prosecutors also would see a bump under the bill because their salaries are linked to judicial rates.

Sen. David Long, R-Fort Wayne, said the bill has a lot of merit and is a sensible approach to the problem. “There is a danger that you lose your best and brightest from the bench” if salaries are not increased, he said.

A story in the Indianapolis Star by Kevin Corcoran and Richard D. Walton
Indiana lawmakers hoping for a pay raise this session are out of luck, but there's still a chance for judges, Republican leaders of the GOP-controlled Indiana General Assembly said Wednesday.

"I think there'll be some kind of judicial salary bill that passes," said House Ways and Means Chairman Jeff Espich, R-Uniondale. "I don't think there is any hope of raises for lawmakers."

While legislators always face a tough sell in passing pay raises for themselves, there is sentiment in the legislature for approving higher pay for Indiana judges, who trail many of their peers nationwide in salaries.

Advocates for a judicial pay raise say the gap must be bridged to attract the best and brightest attorneys to the bench. * * *

In the past 31 years, judges have received pay hikes 10 times, compared with 26 times for most state workers, testified Judge Paul Mathias, a member of the Indiana Court of Appeals and a former president of the Indiana Judges Association.

"This is really a 'me-too' bill. This is not a 'more-for-me' bill," Mathias said after the Senate committee hearing. "All we're seeking is fairness. Isn't that what the judiciary's all about?"

Under the Senate bill, if state employees received a 1 percent raise, it would cost taxpayers about $496,000 to give the same raise to judges and prosecutors. In any year in which judges were voted a flat raise, they would not get the cost-of-living adjustment.

The Senate proposal is a far cry from a pending House measure to give the judiciary pay raises ranging from 25 to 35 percent.

Posted by Marcia Oddi on Thursday, January 27, 2005
Posted to Indiana Courts

Wednesday, January 26, 2005

Ind. Gov't. - Details re Governor Mitch Daniels' office

Mitch Daniels Governor 317-232-1198
Maggie Ban Exec. Assist. to the Governor 317-232-7988
Danielle Chrysler Dir. of Schedule & Operations 317-232-7987
Ben Ledo Special Assist. to the Gov. 317-232-1053
Doug Huntsinger Staff Assistant & Reception 317-232-1763
Harry Gonzo Sr. Counsel & Chief of Staff 317-232-1561
Ellen Whitt Deputy Chief of Staff 317-232-1561
Steve Schultz Governor's Counsel 317-233-5764
John Clark Senior Advisor - Econ. Growth 317-234-3158
Dave Shane Senior Advisor - Education 317-232-4579
Betsy Burdick Dir. of Cabinet and Agency 317-233-9997
Jason Barclay Spec. Counsel & Policy Dir. 317-232-6812
Scott Tittle Spec. Counsel & Policy Dir. 317-232-3515
David Wu Policy Director - Regulatory 317-232-1200
Tony Kirkland Policy Director- Sys. Services 317-232-3770
Jennifer Thuma Legislative Liaison 317-232-1971
Mike O'Brien Assist. Legislative Liaison 317-232-7566
Eric Holcomb Intergovernmental Affairs 317-233-4198
Jon Vanator Assist. Intergovernmental Aff. 317-233-4198
Stephanie Reeve Spec. Asst. Boards & Comm. 317-232-1050
Burgess Brown Spec. Asst. Operations 317-232-4566
Scott Zarazee Dir. Constituent Services 317-232-1051
Anita Kolkmeier Admin. Assist. to COS 317-232-4581
Roger Neal Assist. to Policy & Cabinet 317-232-4564
Marc Lotter Director of Public Advocacy 317-233-8852
Jane Jankowski Press Secretary 317-232-1622
Stephanie Genrich   317-232-1012
Cassandra Sponsel Ofc. Mgr./Comptroller 317-232-2588
Kendra Price Phone Receptionist 317-232-1198
Switchboard Phone Receptionist 317-232-4567
Danielle Chrysler Chief of Staff 317-232-7987
Jill Brooks Residence Director 317-283-8172

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Indiana Government

Env't. - Factory farms the feature of NPR stories today

NPR had two stories today on the topic of "factory farms".

EPA Plan Exempts Factory Farms from Pollution Regulations
All Things Considered, January 26, 2005 · "On Inauguration Day, the EPA offered the nation's factory farms a two-year amnesty from prosecution for violation of air pollution laws if they agree to let federal regulators run a two-year study of the farms' airborne emissions. Environment advocates and local activists are calling it a sham regulation and a ticket to pollute." (This story calls factory farms the one of the nation's dirtiest and fastest growing industry.)

Dutch Dairy Farmers Cause Friction in U.S. Midwest (5:11)
Day to Day, January 26, 2005 · "Tamara Keith from member station WOSU in Columbus, Ohio, reports on the friction between residents of the U.S. Midwest and immigrant Dutch dairy farmers who are moving in and setting up dairy operations."

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Environment

Law - New Hampshire has its own version of Tail Hook

This today from an editorial in the Nashua (NH) Telegraph (thanks to How Appealing):

Instead of trying to hang on to his job, Judge Franklin Jones of the Rochester District Court should resign. Failing that, the state Supreme Court should give him the boot.

We realize it’s hard to give up a $116,000-a-year job and the possibility of a generous state pension with about five more years of service on the bench.

But the judge gave himself a black eye when he got drunk and groped five women during an after-hours social at a conference on sexual assault and domestic violence last May at the Mount Washington Hotel.

That was the same conference that led to Attorney General Peter Heed being forced out of office for unbecoming behavior on the dance floor. In Heed’s case, no woman filed a formal complaint. On the other hand, one woman made known her objections to Jones’ behavior. * * *

Jones is currently suspended without pay and the Judicial Conduct Committee is weighing appropriate sanctions.

However, some of the women who were groped are dismayed by some professionals in law enforcement, including prosecutors and police officers, who testified for Jones’ reinstatement, based on his record as a fair-minded jurist. Some of these professionals often appear in Jones’ court.

The judge has said he’s sorry about what happened, but that one incident shouldn’t be the end of an otherwise blemish-free career. * * *

Yes, it’s regrettable that a few too many drinks will terminate a lengthy judicial career but, in the private sector, groping women’s breasts and buttocks at a job-related conference would be grounds for dismissal.

No less should be considered for someone whose job is to pass judgment on others, including the occasional drunk accused of a serious crime.

The Jones case is also a test of how well the judiciary can police itself. Letting Jones get off lightly would show that the judiciary does have different standards for one of its own.

A later AP story indicates that the judge has now resigned:
CONCORD, N.H. (AP) -- A New Hampshire judge who was suspended for groping five women at a conference on sexual assault and domestic violence resigned on Wednesday, the same day a committee recommended he not get his job back. * * *

Late-night partying at the conference also led to Attorney General Peter W. Heeds resignation after an investigation was launched into whether he inappropriately touched a woman on the dance floor.

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to General Law Related

Ind. Decisions - Two today from the Court of Appeals

Corey Purifoy v. State of Indiana (1/26/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

Corey Purifoy appeals his conviction and part of his sentence for theft. We affirm. * * *

The introduction of allegedly inadmissible hearsay in this case did not constitute fundamental error, and there was sufficient evidence to support Purifoy’s conviction. Additionally, the trial court did not err in imposing a fine and costs against Purifoy as part of his sentence. We affirm. Affirmed.
MAY, J., concurs.
DARDEN, J., concurs in result.

In Re The Estate of Mary A. Cullop (/1/26/05 Ind CtApp) [Torts]
Vaidik, Judge
Following an automobile collision resulting in the death of his wife, Larry Cullop filed a negligence action against property owners and tenant farmers of land from which water had been diverted onto a roadway. The trial court granted summary judgment in favor of the property owners and tenant farmers. Because the property owners and the tenant farmers neither knew nor should have known of the latent design defect in the highway approach, which was designed, constructed, and maintained by the State, we find that they did not breach their common law duty to refrain from creating hazards to the traveling public. Additionally, we decline to recognize a private cause of action under Indiana Code § 9-21-19-6. Accordingly, we affirm the trial court’s grant of summary judgment to both the property owners and the tenant farmers. * * *

Based on the foregoing, we conclude that both the Property Owners and the McCammons are entitled to summary judgment. Affirmed.
RILEY, J., and CRONE, J., concur.

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

Faiz-Mohammad, Khali v. Ashcroft, John (On Review of a Final Order of the Immigration and Naturalization Service)

Before POSNER, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Khalid Faiz-Mohammad, a native of Pakistan, applied to the former Immigration and Naturalization Service (“INS”) for an adjustment of status based on his marriage to a naturalized United States citizen. Without fully adjudicating Mr. Faiz-Mohammad’s application, the INS reinstated a prior deportation order and directed that Mr. Faiz-Mohammad be removed. Mr. Faiz-Mohammad timely appealed this final order of removal. We now reverse and remand for further proceedings.
Hinton, Leonard v. Hinsley, Charles (ND Ill.)
Before BAUER, COFFEY, and WOOD, Circuit Judges.
COFFEY, Circuit Judge. On September 13, 1985, Leonard Hinton was convicted of murdering John Durham, Dorothy McDaniel, and Edward Bradley and sentenced to life in prison. The Illinois Appellate Court, on direct appeal, up held Hinton’s conviction on three counts of murder. Hinton responded with the filing of a pro se post-conviction petition in the circuit court alleging a laundry list of constitutional violations, which was denied and affirmed by the Appellate Court of Illinois. Thereafter, Hinton filed a petition for a writ of habeas corpus in federal court alleging that the police obtained his signed confession through physical coercion, abuse and police brutality and claimed that the admission of his confession at trial was a violation of his Fifth Amendment rights. The district court ruled that Hinton’s Fifth Amendment claim did not warrant habeas relief; concluding that any error arising from the admission of his confession was harmless when one considers that the State produced an overwhelming amount of evidence of his guilt separate and distinct from the confession. We affirm. * * *

WOOD, Circuit Judge, concurring. While I agree that the district court correctly denied Leonard Hinton’s petition for a writ of habeas corpus under 28 U.S.C. § 2254, given the stringent standards for relief that apply to such claims, I see this as a much closer case than the majority does. Hinton raised a serious challenge to his conviction. He loses, however, because the state court’s conclusion that the tainted confession did not affect the outcome of Hinton’s trial was not downright unreasonable. Nevertheless, the claim Hinton has made regarding his confession illustrates dramatically the high price our system of criminal justice pays when police abuse runs rampant: a cloud hangs over everything that the bad actors touched, whether or not they did anything wrong on a particular occasion. * * *

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on legislative financial disclosures

In this ILB entry from Sunday, Jan. 23 we provided links to the Indianapolis Star database of Indiana lawmakers' financial disclosures filed this month (Jan. 2005) covering the past year (i.e. calendar year 2004). Yesterday the Indiana Daily Insight posted this link to The Center for Public Integrity's database of Indiana lawmakers' financial disclosures covering earlier years (the 2004 Form for 2003 calendar year through the 2002 Form for 2001 calendar year). In some cases they go back even further, for instance the filings for this legislator and this legislator go back to the 2000 Form for the 1999 calendar year.

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Indiana Government

Ind. Courts - Judge faces inquiry over misconduct allegation

The Munster (NW Indiana) Times reports here today:

GARY | A panel of three state judges will begin hearing evidence today on whether Lake County's longest serving judge is guilty of misconduct.

Lake Superior Court Civil Division Judge James Danikolas is defending himself against allegations he fired a court employee in 2003 in retaliation for her testimony against him for earlier misconduct.

Judges from Indianapolis, South Bend and Kokomo will hear evidence from Danikolas and the Indiana Judicial Qualifications Commission, which brought allegations against him.

The panel will report its findings to the Indiana Supreme Court by Feb. 28.

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Indiana Courts

Env't. - Several landfill-related stories today

Landfill news in several Indiana papers today.

"Landfill bill infuriates citizens" is the headline to a story today by Seth Slabaugh in the Muncie Star-Press. A quote:

MUNCIE - Sen. Beverly Gard has made members of Killbuck Concerned Citizens (KCC) furious.

The Republican legislator from Greenfield introduced a bill to eliminate the good character and demonstration of need requirements for businesses seeking to start or expand landfills in this state.

"This bill is designed to remove the barriers the state put up in 1989 to keep out-of-state waste out of our state," said Helen Wean, a real estate agent and president of KCC, which has been fighting the proposed Mallard Lake Landfill in Madison County for a quarter of a century. "The federal government said we could not prevent the flow of trash coming to our state but we could make sure it is being brought in by people who are reputable and address the fact that Indiana shouldn't have to put a landfill on every corner if we don't need it."

Gard chairs the Senate's Environmental Affairs Committee, which conducted a hearing on her bill - SB 279 - last week but did not take a vote.

"It's well known that when I introduce legislation, I go about as extreme as you can go to generate a lot of discussion," Gard said in an interview. "I don't anticipate repealing those requirements. We will not take away people's ability to be able to use these statutes to protect their neighborhoods." * * *

Gard said: "This legislation was passed in the early 1990s when the solid waste issues was in a different context than we have now. We were receiving lots of out of state waste and we had diminished landfill capacity. I thought it was time to go back and see if these statutes are doing what was intended.

"While I don't anticipate repealing these provisions, there may be a chance in a couple of weeks to try to add a few provisions to require IDEM (Indiana Department of Environmental Management) to develop rules or guidance for their consistent application. We did find out after these laws were passed that IDEM never developed rules to implement the good character requirements or determination of need. We will look at fine-tuning that."

An earlier entry on this legislation may be found here, from 1/18/05.

The Feddeler landfill in NW Indiana is in the news again. See also this entry from 9/17/04. The Gary Post-Tribune reports here that:

Allied Waste Industries plans to expand its Lowell construction and demolition landfill by approximately 55 acres, bringing the landfill within 1Ú4 mile of the Lowell town limits.

In return for a zoning change from the Lake County Plan Commission, Allied has agreed to clean up the deserted Feddeler landfill. Bob and Julie Feddeler, officers of the old landfill, went bankrupt and it never has been closed properly.

Terry Zona of Allied Waste Industries said that with the income from the proposed expansion, his company would be willing to do a $3-million to $4-million clean-up of the site.

“A slurry wall is the most economically feasible idea,” Zona said, “but until we have access to the site, we can’t say what option would be best.” * * *

According to Indiana Department of Environmental Management spokesperson Amy Hartsock, no one has contacted IDEM about the proposed clean-up. IDEM has not given its OK to any plan.

And the Munster (NW Indiana) Times reports here that:
LOWELL | The property tax fiasco may have temporarily moved annexation to the west to the back burner, but officials have their eye on the prize -- tipping fees generated from an Allied Waste-operated construction and demolition landfill within a half mile of the town.

That's why the Town Council was receptive Monday to West Creek Township Trustee Rick Niemeyer's presentation on Allied Waste's proposed expansion plans there.

Niemeyer said Allied Waste, which operates Lake County C & D directly south of the former Feddeler landfill, has offered to pay $2.5 million to cleanup the Feddeler site in exchange for cooperation in its expansion efforts. * * *

Niemeyer said past efforts to control the Feddeler landfill and keep Allied out were stymied by unresponsive state environmental officials and a Lake County Council that ignored a county plan commission recommendation.

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Environment

Ind. Gov't. - More on Daniels' most recent appointees

Updating yesterday's entry (here) is a story in today's Indianapolis Star headlined "2 appointed to oversee school and state spending."

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Indiana Government

Ind. Law - Constitutional amendment on hunting and fishing

"Constitutional guarantee for hunting, fishing faces an unlikely future," is the headline today of a story by Jennifer Whitson in the Evansville Courier&Press. Some quotes:

The Indiana House took the first step Tuesday to give Hoosiers a constitutional guaranteed right to hunt and fish.

The House passed an amendment that would spell out residents' right to trap, hunt and fish in the state constitution. If the Senate passes the measure, it would still have to pass the General Assembly again in 2007 and could go to the voters on the 2008 ballot.

Rep. John Ulmer, R-Goshen, sponsored the measure and said it's needed to fight a well-funded, national push to outlaw hunting. But others argued that no one is trying to ban hunting in Indiana and that such a proposal will fail.

"I think this is an exercise in the unnecessary," said Rep. Dennis Avery, D-Evansville. "All this legislation does is clutter up our constitution."

Here it is, HJR 4.

Posted by Marcia Oddi on Wednesday, January 26, 2005
Posted to Indiana Law

Tuesday, January 25, 2005

Ind. Gov't. - More on the broadband bill

Updating our entry from yesterday ("Bill may derail city's plan for broadband system") is a second story from the South Bend Tribune about HB 1148. This story is about Bremen, and is headlined "Council doesn't connect with Net bill: Town manager says development could suffer under proposed law." Some quotes:

BREMEN -- A proposed Indiana House bill drew strong opposition on Monday night during the Bremen Town Council meeting. The issue came up when Tim Montague, electric department superintendent, gave the Town Council his usual update during the meeting.

Montague said that House Bill 1148 was a big problem. The bill would ban government support for high-speed Internet services if any private-sector firm already provides them or expresses plans to provide them. "It is what I'm calling a terrible bill," Montague said. "We're actively fighting that bill."

Duwaine Elliott, town manager and director of operations, agreed. "It really could be a detriment to economic development," he said. "I think it's a problem we should inform our senators and representatives of." Elliott said the proposed bill could, for example, hinder any future plans to build a technology park in Bremen.

In response to a question, Montague said telecommunications companies were strongly pushing the bill, which he said was not in Bremen's interest. The council then passed a resolution to have Elliott draft a letter opposing the bill on behalf of the town. The letter will go to area politicians.

Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to Indiana Government

Ind. Decisions - Court of Appeals posts four today

Argy Charnas, et al. v. The Estate of Georgia Loizos, et al. (1/25/05 IndCtApp) [Civil Procedure; Constitutional Law]
Riley, Judge

Appellant-Defendant, Argy Charnas (Charnas), appeals the trial court’s denial to set aside and vacate its Amended Default Order divesting Charnas of her interest in the stock accounts held in joint tenancy with Appellee-Plaintiff, Georgia Loizos, now the Estate of Georgia Loizos (Loizos). We affirm.

ISSUES. Charnas raises two issues on appeal, which we restate as follows:
Whether Charnas’ procedural due process rights under the Fourteenth Amendment are violated by the trial court’s denial to set aside and vacate its Amended Default Order divesting Charnas of her interest in the joint tenancy stock accounts when she was not notified of or granted an opportunity to join in the lawsuit instituted by Loizos against Equiserve Limited Partnership (Equiserve) and Melon Investor Services (Melon); and Whether the trial court’s Amended Default Order is void pursuant to Ind. Trial Rule 60(B)(6) because the trial court failed to establish personal jurisdiction over Charnas. * * *

CONCLUSION. Based on the foregoing, we find that the trial court did not violate Charnas’ due process rights under the Fourteenth Amendment. Furthermore, we hold that Charnas was not an indispensable party under T.R. 19. Affirmed.
CRONE, J., and VAIDIK, J., concur.

Lisa Harwell v. State of Indiana (10/7/04 IndCtApp) [Criminal Law & Procedure]
[Originally issued as NFP]
Riley, Judge
* * * Harwell raises one issue on appeal, which we restate as follows: whether the State presented sufficient evidence to sustain her conviction for prostitution. * * *

Based on the evidence before us, we conclude that the agreement was implicit in the parties’ words and actions when considered in the context in which they occurred. By indicating that the sexual service would not be more expensive than $20.00, Harwell emitted an inference that there was a cost involved and that she would accept money.

Moreover, Harwell’s argument that a specific price has to be determined between the parties prior to there being a meeting of the minds is not supported by the statutory language of I.C. § 35-45-4-2. Indiana Code section 35-45-4-2 only requires evidence of a performance, offer, or agreement to commit sexual services in exchange for money. The statute is silent as to the requirement of a pre-set price. Surely, it cannot be said that to constitute a violation of the statute, the agreement must be expressed and in precise statutory language. See Williams, 256 N.E.2d at 914. Therefore, we agree with the trial court that a meeting of the minds existed between Officer Miller and Harwell that she would perform fellatio for money, with a more specific price to be determined somewhere between 1 penny and $20.00, but definitely not more than $20.00. See Bain, 550 N.E.2d at 110. Accordingly, we find that there is substantial evidence of probative value to support the judgment of the trial court. See Williams, 714 N.E.2d at 672. Consequently, we hold that the State presented sufficient evidence to support Harwell’s conviction for prostitution.

CONCLUSION. Based on the foregoing, we find that the State presented sufficient evidence to sustain Harwell’s conviction for prostitution. Affirmed.
CRONE, J., and VAIDIK, J., concur.

Commitment of B.S. (10/20/04 IndCtApp) [Involuntary Commitment]
[Originally issued as NFP]
Baker, Judge
Appellant-respondent Benjamin Steinberg appeals his involuntary commitment to a mental health facility. Specifically, he contends that the evidence was insufficient to support the trial court’s findings that he was mentally ill, dangerous, or gravely disabled. Finding that the State did not carry its burden of proof with respect to the elements of dangerousness and grave disability, we reverse and remand with instructions to vacate the order of involuntary commitment.

While the evidence was sufficient to support the finding that Steinberg suffered from a mental illness, the probate court erred in finding that Steinberg was dangerous or gravely disabled. Inasmuch as the statute requires the respondent to be either dangerous or gravely disabled, the involuntary commitment order cannot stand. The judgment of the probate court is reversed and remanded with instructions to vacate the order of involuntary commitment.
ROBB, J., concurs.
KIRSCH, C.J., dissents. [without opinion]

[More] Kemplog has more in-depth coverage of this decision, here.

Larry Mitchell v. State of Indiana
(10/22/04 IndCtApp) [Criminal Law & Procedure]
[Originally issued as NFP]
Baker, Judge

Appellant-defendant Larry D. Mitchell appeals his convictions for three counts of Murder, a felony, one count of Attempted Murder, a class A felony, one count of Robbery, a class B felony, and one count of carrying a Handgun Without a License, a class C felony. Specifically, Mitchell claims that the trial court committed fundamental error in instructing the jury that it could convict him as an accessory to attempted murder by finding that he knowingly aided, induced or caused another person to shoot Ashmore, one of the victims, as attempted murder requires specific intent to kill. Mitchell also claims that erroneous identification evidence offered by a victim was admitted at trial, and that the evidence was insufficient to support the convictions. Finally, Mitchell contends that the ninety-three-year enhanced sentence violated his Sixth Amendment right to a jury trial under the United States Constitution because the aggravating circumstances used to support the sentence were neither admitted by him nor found by a jury, thus contravening the rule announced in Blakely v. Washington, 124 S.Ct. 2531 (2004). Concluding that no reversible error occurred, we affirm the trial court’s judgment. * * *

In light of the above, Mitchell contends that his sentence must be set aside because the factual determinations that were deemed aggravating factors by the trial court, includig: (1) his juvenile history; (2) the heinousness of the offense; (3) the observation that Mitchell was a major participant in the crimes; and (4) the fact that Mitchell and his codefendants had planned to commit the robbery were never specifically submitted to a jury.

In addressing Mitchell’s claims, we note that at no time before the trial court did Mitchell 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, his contention is waived. See Carson, 813 N.E.2d at 1189; see also 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 Mitchell’s sentencing hearing in 2004. That the Apprendi rule was extended in Blakely is of no moment, inasmuch as Mitchell should have objected on Apprendi grounds and preserved this issue, just as the defendant in Blakely did. As a result, we decline to disturb Mitchell’s sentence. The judgment of the trial court is affirmed.
KIRSCH, C.J., and ROBB, J., concur.

Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

Nylok Corporation v. Fastener World Inc. (ND Ill.)

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges. KANNE, Circuit Judge. Nylok Corporation filed a complaint in the district court alleging trademark violations by five foreign corporations. The case was dismissed under Federal Rule of Civil Procedure 4(m) because of Nylok’s failure to serve the defendants within 120 days. Nylok argues on appeal that Rule 4(m) explicitly does not apply to foreign service and that the district court’s decision to dismiss should be reversed. For the reasons set forth in this opinion, we agree.
Crest Hill Land v. City of Joliet (ND Ill.)
Before KANNE, EVANS, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Crest Hill Land Development, LLC (“Crest”), the owner of a proposed business park on Division Street, in Will County Illinois, filed a two-count complaint against the City of Joliet alleging that its “no truck” policy on that street constituted violations of federal and state law. In its answer, the City admitted that Division Street was a “locally designated highway,” a designation that would allow truck access. Nearly six months later, after the close of discovery, the City moved to amend its answer with regard to the characterization of Division Street. The district court denied the City’s motion to amend and granted permanent injunctive relief by way of summary judgment for Crest. The City appeals. For the reasons stated herein, we affirm.

Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to Ind. (7th Cir.) Decisions

Environment - Recent stories about the Great Lakes

"Invasive species rules to be revised" is the headline to this story published last weekend in the Minneapolis Star-Tribune. Some quotes:

The U.S. Coast Guard says it must find new ways to keep foreign species out of the Great Lakes, conceding that its regulation of transoceanic ships since 1993 hasn't done the job.

In a little-noticed announcement in the Federal Register this month, the Coast Guard confirmed what scientists have been documenting for years: Invasive species can be carried into the Great Lakes in the residual water and mud at the bottom of ships' ballast water tanks. The extent of the problem was detailed in a series of Star Tribune reports last June.

Ballast tanks are used to balance and stabilize ships. They are emptied and refilled depending upon how much cargo a ship is carrying. Since 1993 the Coast Guard has required ships from foreign ports to discharge ballast water in mid-ocean and to replace it with salt water before entering the St. Lawrence Seaway. The intent is to remove or kill freshwater hitchhikers that might otherwise be carried into the Great Lakes, where they could proliferate and damage natural species.

But the regulations have a gaping loophole. Ships with empty tanks -- which represent about 80 percent of the incoming vessels -- have been exempt from federal inspections.

Scientists have found eggs, spores and other living things in the residual water and muck in the bottom of those uninspected tanks. The foreign species have been dumped into Great Lakes ports when ships take on and release ballast water, scientists say. * * *

At least 179 foreign species have entered the Great Lakes since the 1800s. About 40 percent arrived since 1959, mostly in ballast tanks. The invaders include zebra mussels and such fish as round gobies and Eurasian ruffe, which displace or out-eat native fish and mussels. * * *

Scientists who study the lakes recently reported that the invading species are being discovered at a faster pace in the past decade. Their article, published in the October issue of BioScience, predicted that, without better controls, invaders will keep coming and spread in the Great Lakes "with an associated loss of native biodiversity and an increase in unpredicted ecological disruptions."

Among the species discovered since the 1993 regulations is the fishhook water flea, which displaces native fish food. Scientists have warned that other species from European and Asian ports could invade the lakes, including the killer shrimp, an inchlong feeding machine that devours food needed by fish.

Great Lakes states sue. Last July, attorneys general from seven Great Lakes states, including Minnesota, sued the Coast Guard over the problem. They argued that species from foreign ports must be stopped because they disrupt the ecology and cause billions of dollars in damage to industries, sport fisheries and public utilities. They said that the Coast Guard's exemption for most transoceanic ships must end.

See this ILB entry from July 17, 2005 discussing the Great Lake states' attorneys general suit. Indiana was not among the seven states participating. The U.S. Coast Guard Federal Register notice referenced in the story is available here.

An AP story yesterday in the Indianapolis Star and other papers, titled "Erosion lowers water levels on Great Lakes, report says," began"

TRAVERSE CITY, MICH. -- Lake Huron and Lake Michigan are losing vast amounts of water because of erosion from a commercial navigation channel at the bottom of the St. Clair River, says a report issued Monday.

It was widely known that the two geologically connected lakes lost water when the channel was dug in 1962, boosting the flow south toward Lake Erie. But previously undetected erosion has made the channel more than 60 feet deep in some places _ twice as deep as needed for shipping, the report said.

That has contributed to a decline of 8 to 13 inches in the Huron-Michigan water level in the past three decades, the report said, and it continues a trend dating to around 1860, when the first channels were dredged on the St. Clair river.

Since then, levels on the two lakes have fallen a combined 32 inches _ enough water to fill Lake St. Clair 28 times _ and the problem only will worsen unless it's corrected, the report said.


Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to Environment

Ind. Gov't. - Two new Daniels appointments, in fiscal area

The Indianapolis Star is reporting this morning on its website:

Gov. Mitch Daniels has appointed Melissa Henson, a longtime state staffer, to lead the state's Department of Local Government Finance and Cristopher Johnston, a former chief deputy state treasurer, to lead the Department of Government Efficiency and Financial Planning. Both positions will report to Charles Schalliol, the governor's director of the Office of Management and Budget. * * *

Since 2003, [Henson] has been in charge of the local government agency's budget division, which approves local government spending and sets property tax rates and levies. She will be in charge of implementing Daniels' new policy for reviewing school construction projects to ensure they are academically oriented and not too costly.

Johnston, who served as Indiana's chief deputy treasurer from 1988 to 1992, most recently led the government finance unit within Crowe Chizek, a company that provides consulting and accounting services.

Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to Indiana Government

Law - U.S. Supreme Court rules Contingent Fees Taxable to Client

Tony Mauro of Legal Times reports today:

In a pair of cases with potential pocketbook impact on lawyers and their clients, the Supreme Court ruled on Monday that the contingent fee portion of lawsuit settlements and awards is taxable to the client, even if the money goes directly to the attorney.

But initial reaction to the 8-0 decision was more muted than expected because a law passed by Congress last fall limits the ruling's implications, and the decision won't doom the contingent fee system, which fuels a broad range of private litigation.

While the cases -- Commissioner of Internal Revenue v. Banks and Commissioner of Internal Revenue v. Banaitis -- were pending last fall, Congress passed a provision allowing taxpayers who win awards in employment, whistleblower and civil rights litigation not to count attorney fees and court costs as taxable income. Congress already allows this for lawyer fees in personal injury cases.

Here is Linda Greenhouse's report in today's NY Times. Some quotes:
The Supreme Court ruled on Monday that the full amount of a court award or legal settlement is taxable to the successful plaintiff, even if a sizable portion goes directly to a lawyer under a contingent fee agreement.

The lower federal courts have been split on the question. Acting on government appeals in two cases, the justices voted 8 to 0, with the ailing Chief Justice William H. Rehnquist not participating, to overturn decisions by the federal appeals courts in San Francisco and Cincinnati. Both courts had rejected the Internal Revenue Service's position that all economic gain is taxable to the person who has earned it, unless specifically exempted by Congress.

Shortly before the cases were argued in November, Congress changed the tax law in favor of a subcategory of lawsuit-winning taxpayers. Under that law, the American Jobs Creation Act of 2004, taxpayers can deduct lawyers' fees and court costs "in connection with any action involving a claim of unlawful discrimination." Discrimination is broadly defined to include many kinds of employment disputes.

Writing for the court on Monday, Justice Anthony M. Kennedy said the new law would probably have applied to the cases at issue, both involving employment-related lawsuits. But the law is not retroactive and does not apply to other kinds of lawsuits. Consequently, the Justice Department had urged the court not to find the cases moot.

Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to General Law Related

Ind. Decisions - More on IKEC v. IDEM

Below is a summary of Indiana-Kentucky Electric Corporation v. Commissioner, Indiana Department of Environmental Management (1/19/05 IndCtApp) prepared by Barnes & Thornburg LLP. The initial Indiana Law Blog entry is available here.

On January 19, 2005, the Indiana Court of Appeals issued an opinion in Indiana Kentucky Electric Co. (IKEC) v. Indiana Department of Environmental Management (IDEM), finding that in order to obtain a waiver from all sulfur dioxide (SO2) ambient monitoring requirements under 326 IAC 7-3-2, the source must show: (1) the SO2 ambient air quality standards is likely to be maintained in the future and (2) that there is at least one or more alternative sources of data available, besides ambient monitoring at the source, from which IDEM can determine the SO2 standards will be maintained.

This case involved a request by IKEC for a waiver from all ambient SO2 monitoring because existing monitoring data and air dispersion modeling demonstrated the SO2 standards would continue to be maintained in the area. IDEM denied IKEC's request on the grounds that it could not determine whether the standards would continue to be met unless an SO2 ambient monitor was located within 10 kilometers of IKEC.

The Court of Appeals held IDEM's interpretation of the rule, which allowed a waiver of all monitoring requirements only if another entity within 10 kilometers was conducting ambient monitoring, was "so overly narrow as to be unreasonable." Consequently, the Court found that IDEM is required to consider other sources of data in determining whether SO2 standards will continue to be met in an area.

The Court also held that IDEM's policy requiring ambient monitoring be conducted no more than 10 kilometers from a source of SO2 emissions was an invalid rule. Because the policy was an agency statement of general applicability designed to have the effect of law, it should have been properly promulgated as a rule.

Finally, the Court held that the proper standard of review by the Office of Environmental Adjudication (OEA) of an IDEM decision is a de novo standard of review. OEA is not to give deference to an agency's interpretation of a rule.

Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to Administrative Law | Environment | Ind. App.Ct. Decisions

Ind. Gov't. - Still more on Gov. Daniels' plan to "prune" boards

Updating our most recent entry on this topic (1/22/05) are these "pro" and "con" items.

"Pro" is this editorial today from the Munster (NW Indiana) Times, headlined "All those state agencies, boards and commissions need to justify their existence:"

Our opinion: Agencies, boards and commissions should be proactive and detail their contributions. If they can show how they benefit Northwest Indiana and detail their accomplishments on behalf of the region, they should have nothing to worry about.

The order by Gov. Mitch Daniels to clean house in state government has the agencies, boards and commissions he has targeted scrambling to justify their existence. There are about 300 such boards, agencies and commissions that Daniels believes should be trimmed to fewer than 100, as part of the belt-tightening the state must do.

He is right about that. Saving money and being more efficient are the cornerstones of the new governor's agenda. Some of these are advisory committees or boards, with members likely appointed as much as a political thank you. Some have not met for years. Does anyone even attend meetings of the Egg Board, for example, or the Civil War Flags Commission? Do they even meet? If they do, why?

What do some of these agencies do? And how much taxpayer money goes toward keeping them going? Those are questions that need to be answered as the housecleaning of useless agencies, boards and commissions continues.

As a result of Daniels' call, two bills have been introduced at the Statehouse. A Senate bill would shut down most government boards and commissions on July 1, 2006, and only those recommended by the state government efficiency commission and approved by the governor would continue to exist. A House bill would impose a one-year moratorium on all boards and commissions this July 1.

Of the two, the Senate bill makes more sense because the entities would have to justify their existence, even those that clearly serve a useful purpose, whether the state Ethics Commission or the Board of Dentistry.

Closer to home, targets include the Northern Indiana Regional Planning Commission, the Regional Transportation Authority and the Kankakee and Little Calumet River basin commissions. NIRPC, however, is a federally funded and mandated agency, so it might be spared.

Cynical civic watchdogs and taxpayers have been known to wonder exactly what these agencies do. They should be proactive and outline their contributions. If they can show how they benefit Northwest Indiana and detail their accomplishments on behalf of the region, they should have nothing to worry about.

The two bills are SB 625 (Sen. Clark) and HB 1188 (Rep. MCCain). Here are their digests (as introduced):
SB 625. Sunset of boards and commissions. Terminates most statutory boards and commissions, and numerous other governmental entities on July 1, 2006. Reestablishes the government efficiency study commission (which expired January 1, 2005) until December 31, 2006, and directs the commission to make recommendations to the governor and the general assembly concerning the advisability of continuing or modifying a board or commission that would otherwise expire. Permits the governor, by executive order, to extend the life of a board, commission, or other entity based on the recommendation of the government efficiency commission. Directs the legislative services agency, under the direction of the legislative council, to prepare legislation to bring affected statutes into compliance with this act.

HB 1188. Moratorium for boards and commissions. Establishes a one year moratorium on the operation of all statutorily created boards, commissions, committees, and other similar entities. Permits the governor, or the chairman and vice chairman of the legislative council, to authorize exceptions to the moratorium on a case by case basis. Directs the governor, at the conclusion of the moratorium, to make recommendations to the legislative council concerning continuation, combination, restructuring, or repeal of each of the boards and commissions.

"Con" is this story by Paulene Poparad published last Friday in the Chesterton Tribune, headlined "Proposed bill would shut down much of local government." It begins:
Most thought it was a bad joke, but it wasn’t. Members of the Northwestern Indiana Regional Planning Commission reacted swiftly Thursday by unanimously voting to oppose efforts to shut it down effective July 1 under Indiana House Bill 1188 that appears to threaten operation of most town government boards and commissions as well.

Said NIRPC member State Rep. Chet Dobis, D-Merrillville, “This is the governor’s bill. I tell you it will pass but probably not in this form.”

In new Gov. Mitch Daniels’ attempt to erase a projected state budget deficit that tops $600 million, H.B. 1188 would establish a one-year moratorium on the operation of all statutorily created boards, commissions, committees and other similar entities. At the conclusion, the governor would make recommendations concerning continuation, combination, restructuring or repeal of each board and commission.

NIRPC asked to be authorized an exception under the bill’s provisions to allow it to continue to operate during the study period. The governor may by executive order grant full or partial exemptions under four criteria including if the health or safety of the public could be jeopardized, or the operation of the board or commission is critical for the efficient and orderly conduct of state or local government.

The Recycling and Waste Reduction District of Porter County, formerly the county’s Solid Waste District, on Tuesday took a similar stand against separate legislation that could dismantle such districts throughout the state. H.B. 1188 also identifies solid waste management boards as among those subject to the moratorium.

NIRPC attorney David Hollenbeck said even the Porter County Health Department is included under the legislation, which lists eight pages of boards and commissions to be evaluated including airport authority, commuter transportation district, State Board of Education, Indiana Gaming Commission, county hospital governing boards, the Indiana Lottery Commission, the Indiana Port Commission, the Indiana Department of Transportation and the Workers’ Compensation Board of Indiana.

Problematic locally is the inclusion of the economic development commission, town board of metropolitan police commissioners, redevelopment commission and board of zoning appeals listed in the legislation.

“There’s something missing here,” said NIRPC member Lake County Surveyor George Van Til. “The Legislature.” In his fervor to eliminate government waste, some believe Daniels is inviting chaos.

[Thanks to Marty Lucas of bigeastern.com for the link to the Tribune story.]

Posted by Marcia Oddi on Tuesday, January 25, 2005
Posted to Indiana Government

Monday, January 24, 2005

Ind. Decisions - 7th Circuit posts one today

Blue Cross Blue IL v. Cruz, Julia (ND Ill.)
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Jose S. Cruz was injured in a car accident. Cruz’s insurer, Blue Cross and Blue Shield of Illinois, a division of Health Care Service Corporation (“Blue Cross”), paid for the treatment of his injuries. Cruz was enrolled in Blue Cross’s Service Benefit Plan provided for government employees and their dependents under the Federal Employees Health Benefits Act (“FEHBA”). Cruz sued the tortfeasor responsible for his injuries and recovered money in excess of his medical expenses in a settlement agreement. Pursuant to the Statement of Benefits in the Service Benefit Plan, Blue Cross filed suit demanding reimbursement for the benefits paid to Cruz. The district court dismissed the suit for lack of subject matter jurisdiction. Because we find that FEHBA preempts state law on this matter, we reverse. * * *

III. Conclusion. With FEHBA, Congress intended to create cost-efficient and uniform health insurance benefits for employees of the United States and their dependents throughout the country. The Act’s express preemption provision dictates that the terms of contracts created under FEHBA preempt state law when such terms are related to benefits and coverage. Congress intended for terms related to subrogation to be included in this realm. Thus, the FEHBA-created contract provision in the Statement of Benefits preempts state law with respect to reimbursement for benefits paid to Cruz. The district court has federal question subject matter jurisdiction over this case under 28 U.S.C. § 1331. Accordingly, we REVERSE the district court’s finding to the contrary and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, January 24, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals post one today

Frank Stott v. State of Indiana (1/5/05 IndCtApp) [Criminal Law & Procedure] [Initially published as NFP]
Hoffman, Senior Judge

STATEMENT OF THE CASE. Defendant-Appellant Frank Stott was charged with three counts of the Class C felony of child molesting. After a bench trial Stott was found guilty of one count, acquitted on one count, and the third count was dismissed. Stott was sentenced on two counts of child molesting, the sentences to be served concurrently, three years executed followed by three years of probation. This appeal follows. We affirm in part and reverse and remand with instructions in part.

ISSUES. Stott states the issues as:

I. Whether the trial court erred in entering judgment of conviction and sentencing the Defendant for a count of child molesting after finding reasonable doubt as to that count and entering an acquittal during a bench trial.

II. Whether the six year sentence, two more years than the “fixed term” provided by statute, was improperly based on aggravating circumstances found only by the trial court in contravention of the Sixth and Fourteenth Amendments as explained in Blakely v. Washington, 124 S. Ct. 2531 (2004).

III. Whether the six-year sentence is further flawed because the trial court improperly relied on incorrect factual information and material elements of the offense in finding “the nature and circumstances of the offense” as an aggravating circumstances.

IV. Whether conditions of probation barring the Defendant from any contact with children and entering within 1000 [feet] of any school or daycare center are overly broad. * * *

CONCLUSION. Stott’s sentence on Count One should be set aside and this cause is remanded for that purpose. The dictates of Blakely were not violated; therefore, Stott’s sentence was properly enhanced because of his prior criminal record. The conditions of Stott’s probation are not overly broad. These issues are affirmed. Affirmed in part and reversed and remanded in part with instructions.
NAJAM, J., and RILEY, J., concur.

Posted by Marcia Oddi on Monday, January 24, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Bill may derail city's plan for broadband system

"Bill may derail city's plan for broadband system: Proposal shows telecommunications industry opposition," is the headline to this story today by Martin DeAgostino in the South Bend Tribune. Some quotes:

A House bill backed by SBC and other telecommunications interests could scuttle South Bend's plans for a broadband communications system to enhance economic growth. The bill would ban any direct or indirect government support for high-speed Internet services if any private-sector firm already provides them or expresses even vague plans to do so. And where cities could proceed, the bill closely manages the public process for approval, complaints and financing, including a ban on general-fund support.

Supporters say the legislation would prevent unfair competition between the private sector and publicly subsidized ventures, while ensuring that any public investment receives adequate review and support. But the bill's authors and SBC have emphasized the second issue more than the first, while minimizing state and local studies that highlight inadequate broadband access at affordable prices. * * *

House Bill 1148 does not prohibit municipal involvement in telecommunications facilities or operations. But it sets a high bar before any government unit could launch or support them, including wireless Internet access called WiFi. "This would prevent a city from doing anything like that," said Rep. Ryan Dvorak, D-South Bend. Under the bill:

  • No services or facilities could be developed if a company already provides them or indicates it might within nine months of formal inquiry.

  • A negative determination would trigger an extensive public process about city plans, including a detailed report on finances and operations and a public hearing.

  • Rate payers alone would foot any public costs, although revenue bonds could be issued, with conditions.

  • Cities would have to create a formal complaint and resolution process by ordinance, and challenged determinations could proceed to court "regardless of the amount in controversy."

  • Finally, cities could not proceed while any complaint or court action is pending.
But the bill includes no prescriptive language for private-sector providers, whether in pricing, access or good-faith commitments toward future intended service. That troubles [Rep.} Dvorak, who sees a high-technology future built on low-cost transmission of massive data volumes. "I'm worried about it," he said. "I haven't seen the willpower here in the Statehouse to do anything about the utility monopolies."

Cities may get little support from Gov. Mitch Daniels, whose State of the State speech said Hoosiers "must build out our broadband infrastructure." Asked later about the bill, Daniels described a narrow role for government promotion of broadband.

"I think there's a role," he said, "but we do have to be careful when governments go into the business of competing with the private sector. "In the first place, they generally don't do a very good job of it; and secondly, it's hardly a way to grow our economy to have any agency of government subsidize competition for business on the backs of taxpayers."

Here is a link to HB 1148. And here is a link to a December 3, 2004 Indiana Law Blog entry titled "Different models for city-wide internet service." It reports on a similar, successful effort in Pennsylvania by Verizon Communications. It also reports on wi-fi efforts by several cities in Indiana in addition to South Bend.

Posted by Marcia Oddi on Monday, January 24, 2005
Posted to Indiana Law | Indiana economic development

Temporary message - Welcome to the nearly completed new ILB

Within a week the transfer will be complete, but much remains to be done.

I have created new categories (see right column) so that "Indiana Courts" is now broken down by "7th Cir." IndSCt", etc. However, I still have to reassign earlier entries to these categories (and it turns out there are several 1,000s of earlier entries) so right now both old and new catergories co-exist.

Click on the Transfer List category to see how things should look in the end.

I am planning to change the calendar so that when you click on a date, you see excerpts of all entries for that date, rather than just the most recent.

And there are a lot of other improvements. However, also some drawbacks. When the transfer is completed, your links to indivdual entries from the old site probably will no longer work. Sorry. Worse, my older internal links to earlier entries may no longer work - I hope to resolve this at some point.

Also, when I imported the old entries a number of characters, such as the quotation mark, turns into question marks. This is annoying; I will work on it.

I am also working on the page format so that if you want to print out all the entries for a month, you will be able to do this in full-page format, rather than with a blank column taking up one-third of the page, as now.

There is more, but most of you are probably not interesting in nuts-and-bolts. If you have thoughts, let me know. (There is still no spell-check.)

Finally, for a future project, I would like to create a companion site which will track all Ind. Supreme and Appellate cases - giving their name, link, date, class (property, criminal, etc), status (transfer, etc.), date of oral argument, etc., using the information already accumulated as a start and building from there. The data would be sortable.

Posted by Marcia Oddi on Monday, January 24, 2005
Posted to About the Indiana Law Blog

Ind. Gov't. - Short course on Indiana's budget-making process

Niki Kelly of the Fort Wayne Journal Gazette had an entertaining story yesterday on the course of a budget through the Indiana General Assembly, comparing it to a ride on a roller coaster. Some quotes:

Gov. Mitch Daniels last week gave lawmakers and Hoosiers a doozy of a first hill: pledging to restrain spending, cut Medicaid and balance the budget with a tax increase on the wealthy.

But there is a lot more track to see – full of sharp turns, corkscrews and upside-down loops – before the coaster comes screeching to a halt at the end of the ride, otherwise known as the legislative session.

“There are many things that happen between now and the end of April,” said Rep. Jeff Espich, R-Uniondale, chairman of the House Ways and Means Committee. “It’s (the governor’s) responsibility to propose big vision and big plans, and our job is to evaluate those and pick and choose. “That’s what session is for; to determine priorities.”

To start with, Daniels proposed freezing K-12 education spending, which is certainly unpopular but not unusual when a state isn’t on the surest of fiscal footing. Start low, aim high. That’s what Sen. Robert Meeks, R-LaGrange, calls it.

“Passing it may be a bigger task than anyone thinks,” said Meeks, who runs the Appropriations Committee in the Senate and is charged with crafting the chamber’s own budget version. “A flat-line education budget always touches the heart of every legislator.”

Espich also acknowledges the strategy of starting with a minimal budget, saying the last several spending plans presented by recent governors began the same way. Espich and Meeks are two of the most important people in the process. Although the governor has the bully pulpit and a lot of political capital from a resounding electoral win, he doesn’t have a vote.

Meeks and Espich not only get to vote on the budget; they get to write it. Espich gets first dibs. He will present House Bill 1001 to his Ways and Means Committee in the coming weeks. He acknowledges that it will contain much of the governor’s plan, but not the tax increase.

Posted by Marcia Oddi on Monday, January 24, 2005
Posted to Indiana Government

Sunday, January 23, 2005

Env't. - Former poultry farm to be industrial park

Here is an interesting story from Kentucky, particularly in light of yesterday's entry headed "Owen Co. farm odor rankles neighbors" (3rd entry down).

The Evansville Courier&Press, in this story today, reports:

MARION, Ky. - The former poultry farm just outside the Marion city limits is being converted to an industrial park. The Crittenden County Economic Development Corp. is buying the 105-acre tract as a site for industries it can bring to the community of 3,000 residents.

But Steve Davidson, president of the economic development group, said people who live near the former farm, which ceased operation in 2003, shouldn't worry about having more unsavory neighbors.

The former facility shut down after residents complained about the foul odor from 16 broiler houses. "We're going to guard the integrity of the property and the people who live in that area," Davidson said, explaining the development group will be selective.

The people who lived near the former chicken houses filed a lawsuit in 1997 in an unsuccessful attempt to block the construction. Then in 2000, they used a city nuisance ordinance to file criminal complaints against Tyson Foods and its contract grower, Bud Wardlaw. After three years of litigation, Wardlaw moved away from the community, and Tyson quit raising chickens there.

The property was purchased from Tyson by Jason and Jared Singleton. They have sold the poultry houses, which are being dismantled, Davidson said. The economic development corporation hopes to complete the purchase of the property later this month, he said, for $272,000, utilizing a recently approved $400,000 loan through the Kentucky Economic Development Finance Authority. * * *

Davidson said the economic development group needed additional land because its current industrial park, on the opposite side of town from the new property, is nearly full.

[More] Here is another story I ran across this morning, from the Washington Post. It is about farmland being turned over to economic development, but with an entirely different twist. Headlined "Farmer's Death Lifts Restrictions on Property," it really deserves to be read in full. Here are a few quotes:
Developers have long salivated over 138 rolling acres on Route 28 in Rockville that are surrounded by housing and major highways. But the land's owner, Elizabeth Beall Banks, a feisty farmer and former schoolteacher, spent most of her 93 years fighting to protect it from developers.

Banks once scared county planning officials off her land with a shotgun. Another time she stood in front of bulldozers, hugging trees to stop development around her. She turned down numerous lucrative offers to turn the grassy fields into a housing development. And she complained, vehemently, at times, in letters and phone calls to politicians, planners and most anyone who would listen when her land was taken by eminent domain and fences for her cattle were pushed back to widen roads in the traffic-clogged area.

Banks died Jan. 17, lifting the one restriction on developing her land -- that the farm known as Belward not be developed until after her death. It is one of the large remaining tracts of land in Montgomery County.

Sixteen years ago, she sold the property that had been in her family since the late 1800s for $5 million, far less than its estimated $40 million market value at the time, to Johns Hopkins University, with a few conditions.

The university could eventually develop the land, which sits in the middle of the Interstate 270 corridor, into a major center of medical research, but it had to build her a white rambler to live in next to her old, drafty farmhouse. She would live on the bulk of the land, 100 acres, and raise her 80 cattle until she died.

Posted by Marcia Oddi on Sunday, January 23, 2005
Posted to Environment

Ind. Gov't. - Lawmakers' financial disclosures don't tell all

"Lawmakers' financial disclosures don't tell all: Indiana's law, which leaves depth of reporting up to state legislators, gets an F from watchdog group." is the headline to a long story today in the Indianapolis Star. A companion story is about lawmaker dealings with lobbyists.

To accompany the stories, the Star has scanned and made available online the actual statement of economic interest forms submitted for this year by state senators and representatives, in their own hand.

Posted by Marcia Oddi on Sunday, January 23, 2005
Posted to Indiana Government

Ind. Law - Taking private property for public development (or not)

A fascinating story by Chris Poynter in the Louisville Courier Journal today contrasts the way Indiana and Kentucky deal with land located in the proposed route of a highway or bridge, with Indiana coming out the better. The headline: "Land develops in bridge's path; Kentucky waits - Delay might hike cost of Ohio River project." Some quotes from the beginning of the lengthy story:

Greg and Jacqueline Evans are building their dream home — a stone and shingle house worth at least $1 million on a secluded, 3-acre lot near the Ohio River.

There's just one problem — it sits directly in the path of a planned East End bridge route connecting Louisville and Southern Indiana.

They've owned the land since 1996, six years before the bridge route was chosen, and had always planned to build there. Last fall, they began construction — in part, the Evanses say, because the state has given them no choice.

When the Evans family asked the Kentucky Transportation Cabinet last year to buy its land, the cabinet declined, saying the state doesn't do early buyouts.

"It's either sit on the land and have a piece of property that had no real value or use, or go ahead and build on it and live there for as long as we could," Greg Evans said.

Since the routes for the Ohio River Bridges Project were announced in July 2002, the Indiana Department of Transportation has made offers totaling $3.1 million on about 60 acres in the bridge path near Utica, Ind., in an attempt to protect it from development and hold down the project's cost.

Kentucky, however, hasn't tried to purchase any land, in large part, state highway officials say, because of the state's restrictive law regarding condemnation.

The law says that property owners may repurchase their land — at the same price the government paid for it, even if the value has increased substantially — if it's not used for highway construction within eight years of the initial sale. It also says that if the former landowner doesn't want to buy back the property, then the state must sell it at public auction.

Kentucky officials say they won't begin acquiring land for the Ohio River Bridges Project until the design and engineering work is completed. That means no property will be bought before fall 2006, and then only if federal money is available, said Bill Gulick, bridges manager for Kentucky.

The result is that development or building improvements occurring in the bridge routes could raise the cost of the $1.9 billion project, which already will require the purchase of more than 200 residences and businesses to build a downtown and an East End bridge and to rebuild Spaghetti Junction.

Posted by Marcia Oddi on Sunday, January 23, 2005
Posted to Indiana Law

Env't. - Owen Co. farm odor rankles neighbors

"Owen Co. farm odor rankles neighbors" is the headline to an AP story today in the Indianapolis Star website. Some quotes:

SPENCER, Ind. -- Neighbors of a farm with 1,000 hogs say they are tired of the smell, but county and state officials tell them the operation complies with regulations and that no state law governs foul odors.

Victor Bird has told officials that the odors from the farm force him to stay inside his house much of the time. "The air is so foul you can't go outside," Bird told Owen County's commissioners during a recent meeting. "We have true concerns about emissions coming from these buildings. The neighborhood was here first, then he built this confined feeding operation." * * *

Kaye Driskill, a compliance officer from the Indiana Department of Environmental Management, said the farm met all regulations when she visited the farm in the fall. As for the odor, Indiana has no statutes regarding foul farm smells, The Herald-Times of Bloomington reported Saturday.

Residents can either try to convince county officials that the smell constitutes a public nuisance and take the case to court, or file a lawsuit themselves seeking direct damages from the source of the smell. * * *

Owen County Commission President Wiley Truesdel told Bird and other residents that his board cannot do anything to alleviate their concerns. "We've got to go by IDEM regulations. We can't just arbitrarily do something," Truesdel said. "We can't close down a hog farm, just like we can't move you out of your house. The only thing we can do right now is take this under advisement."

Contrast this with a story yesterday in the Star titled "Bolster state's ag sector: BioCrossroads analysis has blueprint for giant eco-parks that utilize Indiana crops." Some quotes:
Imagine the state being dotted with giant-sized industrial parks that turn crops into products like meat, ethanol and plastics -- while being a model of environmental responsibility.

The concept was among recommendations in a report issued Friday by BioCrossroads, the Indianapolis economic development nonprofit, and welcomed by the administration of Gov. Mitch Daniels. * * *

Study author Ron Meeusen, BioCrossroads' special projects director, and Ron Turco, a Purdue University soil microbiologist sitting on the committee, think a park would be so big that it might consume the equivalent of all the corn and soybeans raised in one to two counties.

Meeusen and Turco think a site could start with local officials zoning about 1,000 acres for a park. The Indiana Department of Environmental Management would issue permits in advance on the condition the businesses follow regulations.

More than a dozen companies may be involved in such a park. One scenario might involve buying grain from local farmers and feeding it to millions of hogs that are slaughtered next door.

Methane from the manure would be burned in a power plant that might supply electricity beyond the ag park, and the remaining biodegraded material would be returned to the soil as fertilizer.

See also this entry yesterday titled "EPA plan offers farms immunity from air pollution violations."

Posted by Marcia Oddi on Sunday, January 23, 2005
Posted to Environment

Ind. Law - Taking private property for private development

I read a small blurb in the Indianapolis Star today about HB 1063, authored by Rep. David Wolkins of Winona Lake, which would prohibit the taking of private property by eminent domain for commercial purposes. According to the Sunday Star (page B4), the bill will be heard in the House Judiciary Committee at 9:00 a.m. Wednesaday; however, the calendar on the General Assembly site indicates 10:30 on Monday (tomorrow).

I was interested because the United States Supreme Court will be hearing oral arguments on this issue in the current term. Although three related cases are scheduled, the closest case here is Kelo v. New London, scheduled for argument on Feb. 23, 2005. Access a summary here, along with a link to the lower court opinion.

The Indiana Law Blog has had a number of entires on the "takings for private redevelopment" issue; see 9/27/04, 9/29/04, and 10/13/04.

New this week is an article in the National Law Journal on the upcoming Supreme Court arguments, titled "All Eyes on High Court Property Cases: High stakes in trio of 'takings' actions." Some quotes:

Each case, say government officials, if decided in favor of the property owners, poses the threat of countless and costly lawsuits by businesses, such as Chevron, or private homeowners, such as Susette Kelo, who will claim that federal, state or local governments have "taken" their property in violation of the Fifth Amendment. And each case, they argue, could re-involve federal courts in second-guessing legislative policy choices to a degree not seen since the discredited Lochner era, named for the 1905 [sic.] case, Lochner v. New York (a period when the Supreme Court struck down numerous state and federal laws designed to improve working conditions and an economy devastated by the Great Depression).

But each case, counter property rights advocates, offers the opportunity for the high court to give meaning and effect to the limits in the takings clause of the Fifth Amendment -- limits on governmental power largely read out of the clause in recent years by courts giving carte blanche to government takings of all stripes.

The three cases are important because the issues "go down to fundamentals," said land-use scholar Daniel Mandelker of Washington University School of Law in St. Louis. In Kelo, he noted, the justices will examine two old precedents that have been "leading guideposts for years" to determine whether the government's use of eminent domain for private economic development is a "public use" under the Fifth Amendment.

Posted by Marcia Oddi on Sunday, January 23, 2005
Posted to Indiana Law

Ind. Gov't. - More on new IEDC; More on Daniels' appointees

Economic Development Corporation. The main story this Sunday in the Indianapolis Star's Business Section is a report by J.K. Wall on the new IEDC. The headline is "State looking beyond borders: Economic strategy focuses on luring firms to Indiana." Some quotes:

Michael "Mickey" Maurer, one of two entrepreneurs picked by Gov. Mitch Daniels to oversee Indiana's economic development, wants to boost the economy in large part by snatching companies from other states.

Maurer, president of the Indiana Economic Development Corp. that is intended to replace the Indiana Department of Commerce, vowed to push staff to make calls on out-of-state companies and to build relationships with site selection consultants. * * *

Mauer's personal take on economic development is nothing new for him. But he is now in a position to take the state on a hunting expedition when many economic development experts urge states to tend their own corporate gardens by helping entrepreneurs create new firms and helping existing firms grow. * * *

But Maurer's emphasis on business attraction over business creation -- which he said would occupy little of his time personally -- causes concern among some economic development professionals.

"They're missing the whole point of why state governments have set up these economic development corporations," said Ross DeVol, director of regional economics at the Milken Institute in California. "(Other states) are trying to focus more on business creation and therefore job creation. Nearly 75 percent of all new jobs created are in small and medium-sized businesses."

Mac Holliday, a Georgia economic development consultant who performed a massive economic study for Indiana's Department of Commerce in 2002, said Maurer's plans would put the state into a highly competitive game that has been yielding less and less fruit.

"If it's only about recruitment, No. 1, you're using a 1970s strategy. It won't change anything," Holliday said. "Site consultants in this country know about Indiana. They know what they think about Indiana. What you need to do is change your (product), not to entertain them at the Indianapolis 500."

Maurer acknowledges that business creation is "an answer" to Indiana's economic malaise. He has built his business career starting companies, such as the National Bank of Indianapolis, and turning struggling businesses around, such as a group of radio stations he and his partners sold last year. He also is co-owner of the IBJ Corp., which publishes the Indianapolis Business Journal.

Miller, co-founder of Vera Bradley Designs, and Maurer also have tools at their disposal for business creation, such as the state's 21st Century Research and Technology Fund, which funds entrepreneurs trying to commercialize breakthrough technologies.

When asked for his plans on business creation, Maurer said they aren't in place because he's only two weeks into his job as president of the economic development corporation. He said retaining existing Hoosier companies is "every bit as important" as attracting new ones. But for Maurer, business attraction is "where the romance is."

From a section about the new IEDC:
Courting companies is one of several changes that Maurer and Secretary of Commerce Pat Miller will bring to state government's economic development efforts if the General Assembly passes House Bill 1003, the first major item in Daniels' economic legislative agenda.

The bill would immediately create the Indiana Economic Development Corp. as a private entity to direct roughly $40 million in state funds toward economic development. A 12-member board, chaired by Daniels, would oversee the organization. The bill also calls for a large advisory board filled by experts from all of the state's regions and industries.

Maurer and Miller, who will function as its chief executive officer, would operate the economic development corporation with about half the staff Commerce had, including half as many regional offices in the state.

Savings generated by the cuts would give Mauer and Miller the green light to pay higher salaries to attract and retain talented employees, and to do more traveling and entertaining. "We hope by being a quasi-public (agency), we might have more tools in our tool box," Miller said.

Daniels' appointees and their salaries. A side-bar to the web version of the IEDC story today is a list of the members of "Daniels' team" -- 20 men and 3 women -- with links to pop-up "trading cards" of each individual, with information including their phone number and e-mail address, education and salary. Unfortunately, the list of names does not identify the position, so if you are looking for the new head of the State Police and don't know his name, you have to click on the names until you hit the right one. Perhaps the Star will post a more user-friendly version later; right now this information is in java-script pop-up windows and it is difficult to print them or to compare information. I was however, able to create an example for you, available here.

BTW, the salaries of the new appointees look to average slightly below $100,000, with the new State Police Superintendent, Paul Whitesell, high at $117,000, if I recall correctly.

Posted by Marcia Oddi on Sunday, January 23, 2005
Posted to Indiana Government

Ind. Gov't. - Statewide medical error reporting and quality system

Ella Johnson of the Evansville Courier& Press has a story today that gives the Evansville perspective on one of Governor Daniel's first Executive Orders - #05-10: Directive to establish medical error reporting and quality system. Some quotes:

State health officials are preparing to work with hospitals and health care providers statewide to develop a new system for reporting medical errors and making the information available to the public.

The Indiana Department of Health is required to establish a medical error reporting and quality system under an executive order signed by Gov. Mitch Daniels. The governor said medical error reporting systems are being implemented across the country to improve health care and demonstrate that procedures can be put in place to reduce medical mistakes.

But Evansville's two hospitals have been gathering quality data for several years and voluntarily submit information to the Centers for Medicare and Medicaid Services. Officials at Deaconess Hospital and St. Mary's Medical Center say they are prepared to provide the data the governor is requesting.

"We feel it is extremely important for the community to be well informed when they make their medical care decisions," said Dr. Kevin Neese, St. Mary's chief medical officer. "It holds us accountable for the quality of patient care and it internally motivates us to do better."

St. Mary's and Deaconess are involved in several efforts with outside organizations - at the national and regional levels - to improve hospital quality and safety. They are among the 89 acute care hospitals in Indiana that provide data for the Centers for Medicare and Medicaid Services Hospital Quality Initiative on patient care for heart attacks, heart failure and pneumonia. [see note 1] * * *

The hospital data became public this month for the first time when the Centers for Medicare and Medicaid Services began posting the Hospital Compare report on its Web site. The Indiana Department of Health uses much of the same data for its new Hospital Consumer Report that went online in December. [see note 2] * * *

Note 1. Here is the link to the "Centers for Medicare and Medicaid Services Hospital Quality Initiative on patient care for heart attacks, heart failure and pneumonia" referenced above. Using it, you can learn how Indiana hospitals rated against the national standard of care in three specific areas: heart attach, heart failure, and pneumonia. The tests are simple - was the heart attack patient given aspirin at arrival, etc. See this page for details.

Note 2. Here is the link to the State of Indiana's Hospital Consumer Reports Search Page. Once you have located a hospital, scroll down the entire page - quite a lot of information is available.

Posted by Marcia Oddi on Sunday, January 23, 2005
Posted to Indiana Government

Saturday, January 22, 2005

Adm. Law - Citizens to Preserve Overton Park v. Volpe

Other X-TREME policy wonks will be, I'm sure, as excited as I was to learn about this. A 53-page paper is now available online titled "Administrative Law Stories: Citizens to Preserve Overton Park v. Volpe," and authored by Professor Peter L. Strauss, Betts Professor of Law, Columbia University. The body of the paper begins:

Citizens to Preserve Overton Park v. Volpe is easily one of the most important cases in the administrative law repertoire, with 4,640 citing opinions listed by Sheppards as of the end of 2004. The great bulk of those citations draw on its elaboration of the scope of review appropriate for agency exercises of judgment. In the instance, as you know, what was at issue was the Secretary of Transportation’s judgment that federal funds could be expended to build Interstate 40 through Overton Park, in Memphis, Tennessee, in the face of a pair of federal statutes that seemed severely to burden that judgment in order to protect parkland values. What may not be so readily apparent to you is that the case helps mark a turning point in American administrative law, brought about by a relatively small number of recent law school graduates. Its legal innovations occurred at the hands of lawyers just a few years out of law school, who successfully entered largely uncharted territory pro bono publico. It seems at least possible that you would be inspired by such a story. * * *
The paper may be accessed here, from SSRN.

I was intrigued also by the Abstract to the paper, which relates that:

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen remedies. In many respects, Overton Park marked the turn. It was an example, as well, of the success of highly motivated recent law school graduates in contributing to major developments in national law. If for that reason alone, it is a fitting subject for a collection of essays intended to give students a more concrete sense of their subject.
Thanks to Professor Laurence Solem of the great Legal Theory Blog for the link.

Posted by Marcia Oddi on Saturday, January 22, 2005
Posted to Administrative Law | Environment

Indiana Gov't - More on Gov. Daniels' plan to "prune" boards

The Munster (NW Indiana) Times has a story today by H. Gregory Meyer that picks up on the Governor's gardening theme. Some quotes:

Bills echoing Gov. Mitch Daniels' call to weed the "state government's garden" this week have already prompted some agencies to pick up spades in defense.

Daniels, in his State of the State speech Tuesday, singled out the "hundreds of boards, commissions and advisory committees that have sprouted over the years" for aggressive pruning. Daniels wants the state's 300 such entities whittled down to fewer than 100, a spokeswoman said.

Everything is under scrutiny, from regional planning boards and Civil War flags to corn marketing and historic preservation.

A Senate bill that Daniels supports would shut down most government boards and commissions July 1, 2006, and only those recommended by the state government efficiency commission and approved by the governor would be allowed to continue. A tougher House bill would impose a one-year moratorium on all boards and commissions July 1, 2005.

Both bills target obscure bodies such as the Civil War Flags Commission, the Lewis and Clark Bicentennial Commission and the Indiana Political Subdivision Risk Management Commission.

But they also name agencies closer to home that some consider vital to the region's resources and planning -- including the Regional Transportation Authority, the Northern Indiana Regional Planning Commission, and the Kankakee and Little Calumet River basin commissions.

The story goes on to focus on the two bills, SB __ (Sen. Clark) and HB 1188 (Rep. MCCain). According to the story:
McClain's bill could shut down the commission for a year, disallowing meetings or other official action, though its status as a federally recognized metropolitan planning organization might spare it such a fate.

Reached by phone, McClain said, "We need to start all over again. Why do we have the Egg Board?" he added as an example. "Why is the Egg Board taking up space in state government?"

The head of the Indiana State Egg Board, based in West Lafayette, had a ready answer: It's a statewide consumer protection agency. The bill "certainly wouldn't be in the best interests of Indiana consumers," Executive Administrator David Steen said.

McClain said even such entities as the state Ethics Commission and the Board of Dentistry should justify their existence or risk shutdown.

Re Senator Clark's bill (which I could not locate, although I did locate a bill that Senator Clark has introduced to establish a new "worker's compensation advisory board"), the Times story continues:
The more moderate Senate bill, sponsored by Sen. J. Murray Clark, R-Indianapolis, would give notice to hundreds of commissions unless a Daniels' executive order directs otherwise.

"This bill is part of the governor's package," Clark said. "We don't want to be draconian, but we have over 350 boards and commissions currently, and some of them haven't met for years."

The Indianapolis Star has a story today written by Kevin Corcoran headlined: "Daniels seeks resignations of 17 boards' members: Governor says he wants to remake the panels, 'like the rest of state government.'" Some quotes:
Gov. Mitch Daniels' chief of staff this week requested the resignations of members of 17 state boards and commissions with significant policy-making authority, including those overseeing the state's teachers' and public employees' retirement funds.

Daniels, a Republican, cannot force resignations from members of these panels, which range from the Indiana Gaming Commission to the Indiana Ports Commission. By law, members of most state boards and commissions serve fixed terms. They cannot be replaced before their terms expire, unless they resign. [See comment below.]

Daniels said Friday he is "selectively" trying to remake these boards. He has said he hopes members will "do the right thing" and submit their resignations. "We'd like to be able to change these bodies, just like the rest of state government," he has said.

A terse letter to the 120 members of these panels, signed by Harry Gonso, Daniels' chief of staff, went out Thursday, according to the governor's aides. Resignations are due by Friday. They are to be submitted to the governor's chief counsel, Steve Schultz, in writing or by e-mail.

"Not all resignations will be accepted," Gonso wrote, "but the Governor would like to ensure, in the exercise of executive power as vested in the Governor by the Indiana Constitution, that all gubernatorial appointees to boards and commissions share his commitment to reform and his vision for the State."

As I've commented before, this may be looked at as a separation of powers issue - can the General Assembly limit the executive authority of the Governor though the passage of laws limiting his appointing powers by creating, for instance, offices with fixed terms that extend beyond the term of the appointing Governor, where the appointees are not removable "at will" but only "for cause?"

The Star story also notes:

Kernan filled vacancies on full- and part-time state boards and commissions at an unprecedented clip last year, meaning his influence over state government could continue for some time. In all, he appointed and reappointed 1,242 people to more than 300 boards and commissions. The total number of people serving on state boards and commissions is 2,428.

Posted by Marcia Oddi on Saturday, January 22, 2005
Posted to Indiana Government

Env't - Some recent stories

Brownfields. The Louisville Courier Journal reported today on a decade-long effort in Harrison County to finance and clean up the site of meat-packing plant that operated from 1918 to 1980. The story provides a lot of information on the financial aspects of such a project.

Land application. The Gary Post-Tribune had a story yesterday on the "Blue Bag" waste issue in NW Indiana. Some quotes:

After a cease-and-desist order was issued last week, Nathan Sanko’s Back 2 Basics is back in business. Sanko has been hauling so-called screen waste from Chicago to his farm fields in Eagle Creek Township near Lowell since 2000. The waste is used on crops in lieu of commercial fertilizer.

The waste originates from the city of Chicago’s Blue Bag recycling program. When the recyclables, which also include yard waste and tree clippings, are sorted and sent through a rotating sieve, the portions that make their way through the sieve screens are called screen waste.

Concerns arose with exactly what kind of garbage is in the screen waste Sanko uses. Ned Kovachevich, executive director of the Lake County Plan Commission, issued Sanko a cease-and-desist order last week after questions of proper zoning were raised. But the order has been lifted, and a judge will now decide whether the operation necessitates a special-use zoning change to Conditional Development District.

And here is a Chicago Tribune story from Thursday headlined "Blue bag dump site gets reprieve: Screened waste still sent to landfills."

Today the Munster (NW Indiana) Times has a story on this issue titled "Judge to decide waste dumping dispute."

Posted by Marcia Oddi on Saturday, January 22, 2005
Posted to Environment

Law - Governor signs gay rights bill into law

"Governor signs gay rights bill into law: Legislation first proposed in 1974 passed House, but stalled in Senate." Of course this story is not from Indiana, it is from one of our sister states, Illinois. As reported in the Chicago Tribune today:

More than 30 years since the state's first gay rights bill was introduced in the General Assembly, Gov. Rod Blagojevich on Friday signed significant changes in state law that ban discrimination against gays and lesbians by landlords, real estate agents, employers and lenders.

Blagojevich signed the controversial legislation, which went into effect immediately, in a hall packed with more than 150 gay rights supporters cheering him on. The governor was also joined by more than 25 legislators and activists who spoke about the historic import of Blagojevich's signature on a bill first proposed in 1974. * * *

With the signing, Illinois becomes the 15th state with a gay rights law. "What we're doing today is as old as the Scripture: Love thy neighbor," Blagojevich said. "It's what Jesus said when he gave his Sermon on the Mount: `Do unto others what you have others do unto you.'"

The measure adds "sexual orientation" to existing state law that protects against discrimination on the basis of race, gender or religion. Opponents had argued the law opens the door toward a shifting of social norms and said the next step will be legalization of gay marriage.

Posted by Marcia Oddi on Saturday, January 22, 2005
Posted to General Law Related

Env't - EPA plan offers farms immunity from air pollution violations

"EPA plan offers farms immunity: Critics say program would aid polluters" is the headline to this story by James Bruggers today in the Louisville Courier Journal. Some quotes from the beginning of the lengthy story:

The U.S. Environmental Protection Agency proposed a program yesterday that allows factory-scale farms to avoid enforcement actions for federal air pollution violations if they agree to pay a one-time penalty, support air monitoring and take steps to reduce noxious emissions.

But the so-called "safe harbor" immediately put the EPA at odds with environmentalists.

The EPA says the program will reduce rural air pollution faster, while environmentalists said the program sets up a "get out of jail free" card for violators of the Clean Air Act.

Under the proposal, animal farms that pay the federal government a penalty of between $200 and $100,000 plus $2,500 toward an air-monitoring fund will get immunity from past and future Clean Air Act violations.

Farms that sign agreements must also take steps to reduce noxious emissions from such sources as large piles of manure. And during the next two years, the EPA and the agriculture industry will work together to monitor emissions from waste lagoons and barns for such toxic chemicals as hydrogen sulfide and ammonia to better understand how they might affect public health, EPA officials said.

The proposed program could affect several hundred farms in Kentucky and Indiana. Pollution regulators from both states acknowledged yesterday that some of the farms have prompted a number of complaints in recent years, and said they were anticipating the EPA action.

For their part, EPA officials heralded the program as "part of the agency's ongoing effort to minimize air emissions from animal feeding operations and to ensure those operations comply with the Clean Air Act and other laws." * * *

Thomas V. Skinner, an EPA acting assistant administrator, described the new program as "a huge step forward."

In a written statement, he said, "It will allow us to reach the largest number of (animal-feeding operations) in the shortest period of time and ensure they comply with applicable clean air requirements."

But one Kentucky environmentalist, Aloma Dew of the Sierra Club, called the EPA move a "get out of jail free card." Others warned that it could discourage courts from allowing lawsuits by people who live near large animal farms, and who seek a reduction in chemicals that can produce strong odors, like those several Western Kentucky residents have already filed.

Here is a link to the U.S. EPA press release on this agreement. Note that this is not a proposed rule, it is an Air Quality Compliance Agreement. There is a 30-day comment period on the See the Fact Sheet here.

Access all the information, including the proposed format of the consent agreement and final order that will be used, as well as the 117-page Federal Register Notice, here.

Apparently the 30-day opportunity to comment is on the general agreement concept, rather than on any of the individual agreements EPA plans to enter into with various farms. (If you know this to be incorrect, please let me know.)

The NY Times also has a story today, via the AP. Its headline: "EPA Offers Immunity to Factory Farms." Some quotes:

Seeking data to enforce clean-air laws and possibly develop future regulations, the government on Friday told farms that generate huge amounts of animal waste they can escape potentially large fines if their air pollution is monitored. The offer by the Environmental Protection Agency is aimed at factory-style farms that process animals, particularly hog, chicken and egg operations.

By signing on, the farms, increasingly run by a concentrated few companies, agree to abide by clean air, hazardous waste and emergency reporting laws after the data is collected. They would pay $2,500 into an EPA fund and agree to let EPA-approved contractors monitor the air. The fund would pay for two years of air monitoring at 28 to 30 farms nationwide at a cost of up to $500,000 each.

Companies also would have to agree to pay a civil penalty of anywhere from $200 to $100,000, depending on the size and number of farms they operate. Those fines would cover presumed violations, past and present, and fend off potential liability four years into the future, when EPA expects to issue its air standards. * * *

Environmentalists described EPA's offer as a "backroom deal" that will harm public health. "Rural families have been suffering from this pollution for years, and now they will have to wait," said Ed Hopkins, environmental quality director for the Sierra Club. "This is an agreement of the polluters, by the polluters, and for the polluters."

Skinner said the deal will not affect state and local agencies' enforcement of their laws governing corporate farm operations. Critics, however, said many states have statutes that defer to federal regulations if they are less restrictive.

Interestingly, there were two different NY Times stories online; here is link to the second, by Michael Janofsky. A quote:
Mr. Skinner said the program was not explicitly intended to reduce the stench that usually pervades large operations and fouls the air in nearby communities. He insisted that reducing the emissions, which come mainly from the storage and disposal of wastes, might well help control odors.

Instead, the agency enforces limits on the emissions of specific gases that long have been controlled by the Clean Air Act. Citizens and local officials retain the right to sue using nuisance laws. "But the Clean Air Act," Mr. Skinner said, "doesn't deal with odor."

Posted by Marcia Oddi on Saturday, January 22, 2005
Posted to Environment

Friday, January 21, 2005

Ind. Decisions - One today from Court of Appeals

Joyce E. Zan v. Lawrence Zan (1/21/05 IndCtApp) [Family Law]
Baker, Judge

Appellant-respondent Joyce Zan appeals the trial court’s order granting appellee-petitioner Lawrence Zan’s Verified Petition to Modify or Revoke Prior Order of Maintenance. Specifically, Joyce contends that the trial court erred in modifying the parties’ settlement agreement with respect to Lawrence’s obligation to make rehabilitative maintenance payments. Finding no error, we affirm.

ROBB, J., concurs with opinion.
KIRSCH, J., dissents with opinion.

Posted by Marcia Oddi on Friday, January 21, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts three today

Myartt, Larry W. v. Frank, Matthew J. (ED Wis.)

Nettles, Gale v. Bucklo, Gale (ND Ill.)

Before POSNER, RIPPLE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. After allegedly purchasing ammonium nitrate fertilizer from an undercover FBI agent and selling it to another undercover agent, who was posing as a terrorist, Gale Nettles was charged with several federal crimes, including attempting to damage and destroy a federal building, 18 U.S.C. § 844(f)(1)—namely the Dirksen Courthouse in downtown Chicago, the site of the federal courts in Chicago, including the United States District Court for the Northern District of Illinois. The case was assigned to Judge Bucklo of that court. Nettles moved to recuse her and the other judges of the court on the ground that since the plot involved a threat to the judges’ safety, a trial presided over by any one of them would create an appearance of bias. * * *

No purpose would be served by requiring Nettles to renew his transfer motion in the district court, before a judge brought in from outside the Northern District, or to make a subsequent motion to recuse the members of this court. A more efficient method of proceeding is for us to recuse ourselves now, to be replaced by judges from other circuits who will be designated to hear any further proceedings instituted by Nettles in this court.

Carreon, Evelyn v. IL Dept Human Services (ND Ill.)

Posted by Marcia Oddi on Friday, January 21, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending January 20, 2005

Here is the Indiana Supreme Court's transfer list for the week ending January 20, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

One case was granted transfer: IDEM v. Lynn West (8/9/04 IndCtApp) [Employment Law; Age Discrimination; Administrative Law]. Access the ILB entry to the now vacated decision here.

Posted by Marcia Oddi on Friday, January 21, 2005
Posted to Indiana Transfer Lists

Law - Interesting public records dispute in Illinois, perhaps also relevant to Indiana

This story today in the Chicago Tribune caught my eye, particularly in light of Governor Daniels' pledge to put all state contracts on the internet. It is headlined "Mail-order pharmacy takes state fight to court" and begins:

The mail-order pharmacy that handles prescriptions for most [Illinois] state employees went to court Thursday to stop the state from releasing to the public the full terms of a contract worth hundreds of millions of dollars a year.

Its action came amid an investigation by the attorney general into whether Caremark Inc. sold drugs to patients that had been returned by other customers.

Caremark, one of the nation's largest pharmaceutical mail-order companies, has filed in Cook County Circuit Court for a temporary restraining order and an injunction to block state Comptroller Dan Hynes from releasing the full contract.

The Chicago Tribune and state Republican senators had asked for the Caremark contract and filed Freedom of Information Act requests with the comptroller. Hynes and his predecessors in the comptroller's office have routinely released copies of all information in state contracts upon request.

But Caremark's lawsuit maintains the firm wants only portions of the contract to be released, saying full disclosure would reveal pricing, proprietary information and critical trade secrets. * * *

"I think the contract should be public because it involves money that has paid for drugs for state employees," said James O'Shea, the Tribune's managing editor. "It should be open and available to the newspaper and its readers."

Aides to Hynes and Atty. Gen. Lisa Madigan, who is representing Hynes, also maintained the entire contract should be released.

"It appears that Caremark has not taken into consideration that it is doing business with a public entity," said state Sen. Peter Roskam of Wheaton, the GOP spokesman on the Senate Executive Committee. "Those arguments are fine in private contractual relationships. But the cloak of secrecy comes off when you're talking about public funds expended for a public purpose."

Posted by Marcia Oddi on Friday, January 21, 2005
Posted to Indiana Law

Ind. Decisions - More on Court of Appeals ruling yesterday on same-sex marriage

Many stories today from around the state on the Court of Appeals ruling yesterday in Ruth Morrison, et al v. Doris Ann Sadler, et al (1/20/05 IndCtApp)[check here for initial entry]. Here are some quotes and links.

"Indiana Court of Appeals supports gay-marriage ban" from the Louisville Courier Journal. Lesley Stedman Weidenbener writes:

In the case decided yesterday, the ICLU argued that the Equal Privileges and Immunities Clause of the Indiana Constitution prohibits lawmakers from limiting marriage and its benefits to opposite-sex couples only. The clause prohibits the General Assembly from giving one class of citizens a benefit it does not offer equally to all citizens.

Indiana Supreme Court precedent requires that laws treating citizens unequally are constitutional only if they are reasonably related to a natural quality that distinguishes the classes of people. In this case, the innate characteristic of same-sex couples is that they cannot naturally produce offspring, the opinion said.

That's important, the judges concluded, because "opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment." "Recognition of same-sex marriage would not further this interest," the decision said.

[Ken Falk, the ICLU attorney who argued the case] disagreed with that reasoning. "The problem with that is that marriage is about much more than procreation," he said. "There are some people who can't have children who are validly married."

The court yesterday acknowledged that same-sex couples are frequently raising children, thanks to adoption and reproductive technologies. However, it said the planning and financial resources necessary for those options means those couples already are heavily invested in the decision to have children and are thus already more likely to provide a stable environment "with or without the `protections' of marriage."

"By contrast, procreation by `natural' reproduction may occur without any thought for the future," the court said. "The state ... may legitimately create the institution of opposite-sex marriage and all the benefits accruing to it, in order to encourage male-female couples to procreate within the legitimacy and stability of a state-sanctioned relationship and to discourage unplanned, out-of-wedlock births resulting from `casual' intercourse."

Judge Michael Barnes wrote the opinion, with judges James Kirsch and Ezra Friedlander concurring. Friedlander wrote a separate opinion in which he said he was "somewhat troubled" by the emphasis on natural procreation as the distinguishing characteristic. Under that rationale, he wrote, "the state presumably could also prohibit sterile individuals or women past their child-bearing years from marrying." Yet, he said, the legislature has banned only same-sex marriage. "Such laser-like aim suggests to me," Friedlander said, "that the real motivation behind (the law) might be discriminatory."

"State appeals court upholds ban on same-sex marriage" is the headline to this story by Jennifer Whitson in today's Evansville Courier&Press. A quote:
In the 2004 session, same-sex marriage became a hot issue when lawmakers tried to take the it out of the courts by adding the same-sex marriage ban to Indiana's Constitution. The amendment passed in the Senate, but House Democratic leaders refused to let it come to a vote, prompting Republicans to walk off the floor.

Many House Republican candidates used the topic in their election campaigns in November and won back the majority.

House Democratic Leader B. Patrick Bauer, D-South Bend, said the court's ruling affirmed his argument that a constitutional amendment wasn't necessary. "Today the House Democrats were vindicated," he said. "(The constitution) is a precious document that should be very rarely amended."

But Republicans said another court could reverse this ruling or new judges might have different ideas. They said they will continue to pursue an amendment to Indiana's Constitution.

"Today's decision makes traditional marriage safe again for the time being," said House Speaker Brian Bosma, R-Indianapolis. "But it's critical to have a constitutional amendment to be certain both that the current judiciary does not change their mind on this decision and also to protect it from future decisions as well based on other arguments."

"Judges dismiss same-sex marriage: Appellate court rules against 3 gay couples" is the headline to this story by Niki Kelly in today's Fort Wayne Journal Gazette. Some quotes:
“The court took a very thoughtful and scholarly approach to the question. I just think we have a basic disagreement on the outcome,” said Ken Falk, attorney for the Indiana Civil Liberties Union. He said his clients were disappointed.

“This, from their perspective, is very hard to figure out. For them this is a human thing,” Falk said. “They love each other and want the responsibility of being married. They have a hard time understanding why they can’t.”

The ICLU sued in 2002 on behalf of three long-term central Indiana gay couples. A Marion County judge dismissed the case, and it was appealed to the Indiana Court of Appeals, which had it under consideration for more than a year.

The plaintiffs claimed the state law defining marriage as between a man and a woman violated the equal privileges clause of the Indiana Constitution, which provides that the General Assembly cannot grant unequal privileges to different classes of citizens. Specifically, the couples noted different treatment in the areas of protection of spousal communications, making of health care decisions and inheritance rights.

The court ruled the law does not run afoul of the constitution because “opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment. “Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it.”

The Fort Wayne paper also has an editorial titled "An unsurprising disappointment." Some quotes:
The ICLU has not decided to appeal to the state Supreme Court. It should, if only to question the appeals court’s narrow reasoning in deciding that the ban on same-sex marriage does not violate the state constitution’s equal-protection clause. (That clause prohibits the legislature from granting any class of citizens privileges denied to another class.)

In its 3-0 ruling, the appeals court declared the law does not violate the state constitution’s equal-protection clause because the purpose of the Defense of Marriage Act is to encourage “responsible procreation,” something same-sex couples cannot do biologically. The opinion seems to go to great lengths to justify this interpretation even though many couples who cannot – or choose not to – procreate do in fact get married.

In a concurring opinion, Justice Ezra Friedlander seems to question such dissonance, writing, “I must admit that I am somewhat troubled by this reasoning. Pursuant to this rationale, the State presumably could also prohibit sterile individuals or women past their child-bearing years from marrying. In fact, I would assume the State may place any restrictions on the right to marry that do not negatively impact the State’s interest in encouraging fertile, opposite-sex couples to marry.”

Yet Friedlander agreed with his colleagues. They determined that a 1994 state Supreme Court ruling places a very high burden of proof in front of anyone challenging a state law on the basis of equal protection.

The appellate court says the legislature should decide the matter of same-sex marriage. The three-judge panel, ruling on precedent rather than morality, wrote the “Indiana Constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document.”

Jim Stinson's story in the Gary Post-Tribune begins:
The Indiana Court of Appeals upheld the state’s ban on gay marriage on Thursday, but Republicans are still promising a place for the ban in the state constitution.

State Speaker of the House Brian Bosma, R-Indianapolis, said a challenge at the Indiana Supreme Court or in a federal court could change things. “It’s been made very clear by the advocates of same-sex marriage that the battle’s not done,” said Bosma.

Not by a long shot, according to Northwest Indiana gay and lesbian activists.

"SAME-SEX MARRIAGE: Legislators say ruling vindicates their actions, others are disappointed" is the headline to the Munster Times story by Brendan O'Shaughnessy and Allison Fashek. The lead:
The Indiana Court of Appeals on Thursday upheld the state law banning gay marriage, setting off a scramble by political opponents to interpret the results on a controversial issue.

House Democrats said the court, which rejected a challenge by three homosexual couples to a 1997 law defining marriage as between a man and woman, vindicated their actions last year in blocking a proposed constitutional amendment. They said then that the current law was sufficient and the amendment push was a political ploy in an election year.

Republicans, whose walkout last year brought House business to a halt, said the ruling backs up their stand for traditional marriage and the Legislature's right to decide the matter.

Finally, Tim Evans wrote today's front page but below-the-fold story in the Indianapolis Star, headlined "Same-sex marriage ban upheld: Indiana court cites the inability of gays to procreate naturally as justification for law." Some quotes:
An Indiana Court of Appeals decision upholding the state law banning same-sex marriage came down to the issue of natural reproduction -- not morality, religious tradition or gay rights.

The court ruled Thursday that the ability of heterosexual couples to procreate naturally is distinction enough to justify the law.

"The Indiana Constitution does not require governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution," Judge Michael P. Barnes noted in the unanimous decision. * * *

Thursday's ruling is not expected to end the legal and political debate over same-sex marriage. The couples could appeal the decision, and legislators are moving forward with a proposed constitutional amendment that would ban same-sex marriage and could render any future court challenges moot.

"This is a good ruling for the state," said Attorney General Steve Carter. "It recognizes the unique role that traditional marriage plays in our society, and affirms the General Assembly's ability to define marriage as between one man and one woman."

Gay marriage advocates called the decision a disappointment. "We thought we had demonstrated why same-sex couples that wanted to live in a committed and loving relationship should constitutionally be treated the same as opposite-sex couples," said Kenneth Falk, legal director for the Indiana Civil Liberties Union.

The Star also has this story today by political writer Mary Beth Schneider that begins:
Republican lawmakers applauded a court decision Thursday upholding the state law prohibiting same-sex marriage, but said the ruling doesn't change their determination to seek a constitutional amendment banning same-sex marriage.

"The battle is certainly not over," said House Speaker Brian Bosma, R-Indianapolis. "The only way to settle it for certain is by changing the state constitution."

The Indiana Supreme Court could reverse the appellate decision, he said, or another case could arise that results in a different outcome.

"It's critical to have a constitutional amendment to be certain both that the current judiciary does not change their mind on this decision and also to protect (marriage) from future decisions as well," Bosma said.

Posted by Marcia Oddi on Friday, January 21, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't - More on insurance commissioner resignation; Commerce secretary cuts out Fort Wayne

Two somewhat surprising stories today, each reported from the affected city.

In a report today in the Evanville Courier&Press, Jennifer Whitson writes:

Gov. Mitch Daniels announced Thursday that his first black appointee and the first person he selected from Evansville would not be taking the post. Harold Calloway, who runs a State Farm insurance agency, won't be the state's new commissioner for the Department of Insurance. * * *

Calloway, 58, said the decision stemmed from discussions he was having with State Farm about his retirement benefits. Retiring before age 65 would have cost him a lot, he said. "Financially it was going to be too much of a strain on me further down the road," he said. "It would have been difficult to maintain the same standard of living." * * *

Daniels has since appointed two other minorities: State Excise Police Superintendent Alex Huskey, a black man, and Labor Commissioner Miguel Rivera, who is Hispanic.

And from Fort Wayne today, home of Daniel's Commerce Secretary Pat Miller, comes this story reported by Niki Kelly in the Fort Wayne Journal Gazette:
The second-largest city in the state will no longer have a regional Department of Commerce office under a reorganization plan announced Thursday.

Eliminating the local office was one of the first major decisions made by former Fort Wayne businesswoman Pat Miller as the state’s new secretary of commerce.

Miller was not made available for comment, but a statement said the 12 existing Department of Commerce regional offices would be consolidated into five offices in the first of several initiatives to better position the new Indiana Economic Development Corp. to focus exclusively on job creation. * * *

The new structure is made up of five regions: Northeast, Northwest, Central, Southeast and Southwest. But the Northeast office will not be in the northeast quadrant of the state, instead being in South Bend.

[Update 1/22/04] This story in the Fort Wayne Journal Gazette reports:
A day after sparking controversy by announcing that Fort Wayne would not house the primary northeast regional Department of Commerce office, Secretary of Commerce Pat Miller said Fort Wayne will have a smaller satellite office with limited staff.

“I am from Fort Wayne. There is no way I am going to give them anything but the top service they deserve,” said Miller, who co-owns Vera Bradley Designs in Fort Wayne.

Although the region’s senior project manager will operate out of an office in South Bend, there will be a small office in Fort Wayne with its own project manager to help serve the 20-county area, Miller said.

Posted by Marcia Oddi on Friday, January 21, 2005
Posted to Indiana Government

Ind. Gov't - Governor Daniels posts executive order on school construction

Here is Executive Order 05-19 - Directive to department of local government finance regarding school building project financings. This was announced earlier this week, but the text has just been posted. The body begins:

Effective as of the date of this Executive Order, and pursuant to its authority under IC 6-1.1-19-8, the DLGF shall impose a 120-day moratorium on the consideration and approval of any school building project financings.
A comment. Actually two small quibbles. First, there is no date on the posted copy of the Executive Order. Second, the postings of this type of material to the new Governor's news release site so far have lagged several days behind their announcement. In this new era of open government and technological innovation, it would be good to be able to read the text of what is, in effect, executive-made law at, or more appropriately, before, it goes into operation.

Posted by Marcia Oddi on Friday, January 21, 2005
Posted to Indiana Government

Thursday, January 20, 2005

Ind. Decisions - 7th Circuit posts four today

Zenith Electronics v. WH-TV Broadcasting (ND Ill.)

Boiles, Loretta v. Barnhart, Jo Anne B., Comm. of Social Sec. (SD Ind., Larry J. McKinney, Chief Judge)

Before COFFEY, MANION, and ROVNER, Circuit Judges. ROVNER, Circuit Judge. Loretta Boiles applied for Supplemental Security Income (SSI) in March 2000, claiming that she was disabled because she suffered from several maladies, including pseudoseizures. Her claim was denied initially, upon reconsideration, and after a hearing before an administrative law judge. The ALJ found that although Boiles had a severe impairment, it did not equal a listed impairment, and that she was capable of working with certain restrictions. Because the ALJ did not adequately support his decision that Boiles’s condition was not equal in severity to a listed impairment, we vacate the decision and remand for further factfinding. * * *

For the reasons stated above, we VACATE the decision of the district court and REMAND to the Social Security Administration for further proceedings.

Mannie, Lynnette v. Potter, John E. (ND Ill.)

Miranda, Brian v. Leibach, Blair (CD Ill.)

Posted by Marcia Oddi on Thursday, January 20, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Five today from the Court of Appeals

Delta Airlines, Atlantic Coast Airlines, Globe Security Services, Inc. v. Bryan & Jennifer Cook (1/20/05 IndCtApp) [Torts]
Najam, Judge

Atlantic Coast Airlines (“ACA”) has filed a petition for rehearing asking that we “clarify or alter” our analysis of the modified impact rule in our opinion in this matter. See Delta Airlines v. Cook, 816 N.E.2d 448, 458-60 (Ind. Ct. App. 2004). Specifically, ACA contends that “this Court’s published decision abrogates the Modified Impact Rule and conflates two distinct rules (the Modified Impact Rule and the Bystander Rule) into an unprecedented rule of ‘direct involvement.’” Petition for Rehearing at 3. We grant ACA’s petition for rehearing for the limited purpose of addressing this issue, but we reaffirm our opinion.

ACA asserts that “this Court’s published decision does not attempt to distinguish in any way between the Indiana Supreme Court’s clear and consistent application of the Modified Impact Rule in [Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000)] and [Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000)] and the Supreme Court’s equally clear creation of a separate Bystander Rule in [Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000)], which the Bader Court juxtaposed and plainly distinguished.” * * *

For the foregoing reasons, we reaffirm our opinion.
SULLIVAN, J., and BARNES, J., concur.

Macs Y. Bell v. State of Indiana (1/20/05 IndCtApp) [Criminal Law & Procedure]
Ratliff, Senior Judge

Defendant-Appellant Macs Y. Bell (“Defendant”) appeals from his convictions after a jury trial of two counts of child molesting, Class A felonies, Ind. Code §35-42-4-3, and one count of child molesting, a Class C felony, Ind. Code §35-42-4-3.We affirm. * * *

The trial court did not err by limiting the Defendant’s attempt to introduce direct evidence of specific instances of conduct on the part of the victim. Second, the trial court did not err by giving the instruction regarding the videotaped statement of the victim. The instruction, which is required by statute to be given, does not invade the province of the jury as did the instruction in Ludy. Affirmed.

ROBB, J., and BAKER, J., concur.
Although Defendant does not raise a Blakely argument regarding his sentencing, we have examined his sentence in that regard. Blakely v. Washington, 124 S.Ct. 2531,159 L.Ed.2d 403 (2004), reh’g denied. Blakely is not implicated because Defendant received the presumptive sentence for each of the felonies for which he was convicted. See Ruiz v. State, 818 N.E.2d 927, 928 (Ind. 2004); Williams v. State, 818 N.E.2d 970, 975 (Ind. Ct. App. 2004). Further, we have held that the holding in Blakely is not implicated in situations involving consecutive sentences. See Cowens v. State, 817 N.E.2d 255 (Ind. Ct. App. 2004).

F.A.C.E. Trading, Inc. v. Attorney General and Hoosier Lottery (1/20/05 IndCtApp) [Statutory Construction]
Riley, Judge

Appellant-Plaintiff, F.A.C.E. Trading Inc., d/b/a Face Card Promotions, a Wisconsin Corporation (FACE), appeals the grant of summary judgment in favor of Appellees-Defendants, the Indiana Attorney General (Attorney General); the Prosecutor of the Alcohol & Tobacco Commission; the Commissioner of the Alcohol & Tobacco Commission; and, the Director of the Hoosier Lottery (Hoosier Lottery), (collectively, the Appellees), concluding that Ad-Tabs are an illegal gambling device pursuant to Indiana Code § 35-45-5-1. We affirm.

I. Gampling Device. * * * Because Ad-Tabs satisfy both subsections of the gambling device statute, we find that the trial court did not err in holding that Ad-Tabs are merely a subterfuge for a gambling device. Therefore, we conclude that no genuine issue of material fact exists regarding whether Ad-Tabs is a gambling device. Fort Wayne Lodge, LLC., 805 N.E.2d at 882. We thus affirm the trial court’s grant of summary judgment in favor of the Appellees.

II. Motion to Strike. * * * Although the trial court provided no reason in its order as to why it struck the affidavits, our review clearly reveals that Michigan and Indiana gambling statutes are quite different See footnote . Even if the expert opinions might have included special knowledge, here, their opinions clearly would not have assisted the trier of fact. Because the trial court’s actions were neither clearly erroneous nor against the logic and effect of the facts and circumstances before the court, we find that the trial court did not abuse its discretion.

CONCLUSION. Based on the foregoing, we find that no genuine issue of material fact exists that Ad-Tabs are gambling devices, and therefore affirm the trial court’s grant of summary judgment in favor of the Appellees. Additionally, we find that the trial court did not abuse its discretion in striking FACE’s expert affidavits Affirmed.

CRONE, J., and ROBB, J., concur

Robert Cavens, M.D. v. Tim Zaberdac, et al (1/2005 IndCtApp) [Medical Malpractice]
Barnes, Judge

Dr. Robert Cavens appeals the entry of judgment against him in the amount of $750,000 in a medical malpractice action brought by Tim Zaberdac, individually and as administrator of the estate of Peggy Miller. We reverse and remand.

Issue. The issue we address today is whether the trial court erred in granting Zaberdac’s motion for judgment on the evidence with respect to Dr. Cavens’ claim of contributory negligence on Miller’s part. * * *

Conclusion. The trial court should have permitted Dr. Cavens to present his contributory negligence defense to the jury and its refusal to do so prejudiced Dr. Cavens. We reverse the judgment against Dr. Cavens and remand for further proceedings consistent with this opinion. Reversed and remanded.

NAJAM, J., and SULLIVAN, J., concur

Ruth Morrison, et al v. Doris Ann Sadler, et al (1/20/05 IndCtApp) [Constitutional Law]

(Already posted. Scroll down three.)

Posted by Marcia Oddi on Thursday, January 20, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on the South Bend insurance decision

The South Bend Tribune today has the back story on the Court of Appeals ruling in The City of South Bend, Indiana, et al v. Century Indemnity Co., et al (1/18/05 IndCtApp)[ILB entry here, 2nd opinion]. The story, headlined "Studebaker cleanup effort gets a boost: Ruling lets city lawsuit against former automaker's insurance proceed," was written by Jeff Parrott. Some quotes:

SOUTH BEND -- Enter downtown South Bend from the south and you can't help but notice them. The dilapidated eyesores stubbornly sit there. Thousands of tons of weathered bricks, rotting wood, crumbling concrete, rusting metal and broken glass. Decades ago they were vibrant, productive -- a source of community pride. Today they waste 140 acres of prime urban land, erode surrounding property values and serve as a constant reminder of the city's once-glorious industrial past.

Mayor Stephen Luecke wants his legacy to include toppling the former Studebaker and Oliver Plow Works factory buildings, ridding the land of contamination and successfully marketing it to light industrial and high-tech ventures. From blight and ruins would spring jobs with solid paychecks, the kind that generate taxes, feed families, finance vacations, put kids through college and finance comfortable retirements.

But the city's budget is tight. Demolishing the structures could cost $21 million, money the city is seeking in federal government loans. It could cost another $20 million to clean up the contamination. Luecke would like to do it all with as few city tax dollars as possible, and he got a little help Tuesday from the Indiana Court of Appeals.

The court ruled that the city's lawsuit against the former Studebaker Corp.'s liability insurance companies can proceed in court. The city aims to make the companies pay to clean up pollution left behind when the automaker shut down in 1963.

Marion Superior Court Judge Michael Keele, who presides over environmental cases, had tossed the suit out, finding the city lacked legal grounds to bring it. Keele cited the state's "direct action" common law rule, which bars an allegedly injured party from seeking damages directly against the insurers of the party causing the injury -- before a judgment is obtained.

But the appeals court determined the complaint should be allowed to proceed because the city is not yet seeking any direct payment from the insurance companies, thus there is no "direct action." It is only seeking a declaration that the insurance companies would be obligated to provide coverage under the policies it issued to Studebaker -- if the city can prove Studebaker caused the contamination in its underlying case. * * *

Handling the case for the city is the Indianapolis law firm of Plews, Shadley, Racher and Braun. The firm is waging another legal battle -- with even more money at stake -- on the city's behalf in a U.S. Bankruptcy Court in Chicago, where it has entered a claim in the bankruptcy case of Allied Products Corp. Allied occupied some former Oliver Plow Works properties, plus a nearby stamping plant on South Franklin Street.

[The firm's Jeff] Featherstun said South Bend is not the first city to try funding brownfield redevelopment by holding polluting companies or their insurers accountable, but he was not certain whether any such lawsuits have succeeded. But in the interest of city taxpayers, the city thinks it's worth a try. "We wouldn't have brought the cases if we didn't think they were good cases," Featherstun said.

Posted by Marcia Oddi on Thursday, January 20, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't - Daniels' insurance aide pulls out

A brief story just posted on the Indianapolis Star website reports that "Harold Calloway, who was to be commissioner of the Department of Insurance, notified Daniels Wednesday that he has withdrawn." For the ILB entry at the time of the Calloway appointment, check here.

Posted by Marcia Oddi on Thursday, January 20, 2005
Posted to Indiana Government

Ind. Decisions - Court of Appeals rules that the Indiana Defense of Marriage Act is constitutional

Ruth Morrison, et al. v. Sadler (1/20/05 IndCtApp) [Constitutional Law]
Barnes, Judge

[The ruling is 42 pages, Kirsch, C.J. concurs, Friedlander concurs with opinion starting on p. 37.]

Here is a remarkably quick AP story on the decision, on the Indy Star webpage. Some quotes:

The Indiana Court of Appeals ruled today that the state's law banning gay marriages can stand. The ruling rejected a challenge by three homosexual couples to a 1997 state law prohibiting the state from recognizing same-sex marriages, even those that take place in states where it is legal.

"What we decide today is that the Indiana Constitution does not require the governmental recognition of same-sex marriage, although the Legislature is certainly free to grant such recognition or create a parallel institution under that document," the court said in its ruling. * * *

The court ruled that the ban did not violate the constitution because "opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment."

"Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it," said the ruling written by Barnes in which the other two judges concurred.

The court said that the ability of opposite-sex marriages to reproduce distinguishes them from same-sex couples and that the couples who filed the lawsuit did not establish that they had a "core value" right to marry and receive the governmental benefits of marriage. * * *

The ruling comes amid a national debate on the legality and morality of same-sex marriage that has been raging since 2003, when Massachusetts became the first state to legalize the unions. Opponents were bolstered by last year's elections, when 11 states pushed through constitutional amendments banning gay marriage. And President Bush has promised to make a federal anti-gay marriage amendment a priority of his second term.

Posted by Marcia Oddi on Thursday, January 20, 2005
Posted to Ind. App.Ct. Decisions

Law (not) - At lunch with John Grisham

The NY Times had an interview with John Grisham yesterday in its Dining & Wine section titled "The Lawyer Enters a Plea of Lucky." Some quotes:

"I woke up and won the lottery," he recalled in a pronounced Southern drawl. "I stopped practicing law. I stopped practicing politics. And so for 15 years I've had the luxury of staying at home, being there with my kids, coaching Little League baseball. I didn't miss a play. I didn't miss anything." Those children, a 21-year-old son and an 18-year-old daughter, are in college now.

Mr. Grisham had that luxury in part because he kept writing and writing, at least a book every year, and those books kept selling and selling. His 18th novel, "The Broker," was published by Doubleday last week. It will almost inevitably climb to the zenith of the best-seller list and linger there, because it is essentially a legal thriller and that is what Mr. Grisham's legal thrillers ("The Pelican Brief," "The Runaway Jury") do.

Over the last 15 years, more than 100 million copies of Mr. Grisham's books have been published in hardcover and paperback worldwide. That figure probably makes him the most commercially successful writer in the world for that time period.

But it has not, by all appearances, messed with his head, and his attitude toward lunch — toward food in general — reflects his striking equilibrium. He loves fine food and tries in a low-key manner to broaden his culinary horizons, an effort aided by his wealth and control over his time. He has not, however, become obsessive, pretentious or fetishistic about it.

On a trip to France several years ago with his wife and children he put together a schedule of five Michelin three-star restaurants over five consecutive nights, he said. "But after about the third one," he said, "there was open revolt. Every meal was at least three hours long." The family made a beeline for bistros and never looked back.

Posted by Marcia Oddi on Thursday, January 20, 2005
Posted to General Law Related

Ind. Courts - Reports on yesterday's State of the Judiciary

Two good reports in the papers today on Chief Justice Shepard's State of the Judiciary address to the Indiana General Assembly, each focusing on a different section of the remarks. (Access the address here.)

"Shepard urges overhaul of court system" is the headline to this AP story by Charles Wilson, published today in the Louisville Courier Journal. Some quotes:

The state's courts need to be restructured to ensure that people receive equitable treatment regardless of where their case is filed, Indiana Chief Justice Randall Shepard said yesterday.

Indiana's judicial organization has not changed much in 100 years, Shepard said in his annual State of the Judiciary speech to the General Assembly. "Somebody who came in and looked at the table of our court organization in 1905 would feel right at home (today)," he said. * * *

The chief justice said the state's 19th century framework works "OK" but is far from ideal. The traditional structure results in dramatic differences in caseloads from one court to another. And uneven caseloads result in uneven treatment for people who must go to court to solve their problems, Shepard said.

"Imagine two women who file for divorce in the same courthouse on the same day, both needing an order for temporary child support," he said. "One gets an order quickly because she's in a court that isn't very busy, and the other waits for weeks because she's in a court that's overloaded."

One remedy would be to restructure local courthouses so judges share responsibility for all the cases filed there — something some larger urban courts already have done, Shepard said. Under the current system that most counties use, certain judges in each county are assigned certain types of cases, from small claims to lawsuits to criminal trials.

The shift to joint responsibility is evolving slowly, he said in an interview after his speech. Shepard also said the Supreme Court next week will change the way senior judges are assigned to help local courts focus on relieving the most overburdened courts.

The state already has moved to improve the way paper documents are handled, Shepard said, and the Supreme Court is working on a computerized system for tracking the nearly 2 million new cases filed each year. Officials also are working on allowing courts and other agencies — such as state police and the Bureau of Motor Vehicles — to share information electronically.

"Chief jurist lauds change in jury pools: Counties can't rely only on voter rolls," is the headline to this story by Richard Walton today in the Indianaplis Star. Some quotes:
Hoosiers who don't register to vote to avoid jury duty now face performing their civic duty, Indiana Supreme Court Chief Justice Randall T. Shepard said Wednesday.Shepard, speaking to a joint session of the Indiana General Assembly in his annual State of the Judiciary address, said the high court is expanding the pool from which potential jurors are drawn.

Calling it "a terrible fact" that some people refrain from voting to get out of jury service, Shepard said the Supreme Court already has required counties to choose jurors from more than just voter rolls.

Shepard said there now are plans to provide every county with names and addresses from agencies such as the Bureau of Motor Vehicles and the Indiana Department of Revenue. Breaking the historic link between jury service and voting is not just good for the jury system by making it more representative, Shepard said, "it will be good for democracy." * * *

[Shepard cited another jury reform:] A Supreme Court rule that took effect this month ended the longtime practice of judges admonishing jurors not to speak about a case among themselves during recesses and other breaks. He called that instruction contrary to the way people normally arrive at judgments. "That's not the way grown-ups make important decisions," Shepard said. "We talk about it with each other as we go along."

In an interview, he said jurors will be told they can discuss the case with one another but to withhold a final judgment until all the evidence is in. He said he is confident jurors "can be completely trusted to keep in their minds that they haven't heard the whole story yet."

Other recent jury system reforms also have been put in place, Shepard said. Among these is the requirement that judges instruct jurors that they have a right to ask questions of witnesses who have been screened by the judge. They've long had that right, Shepard added -- "they just didn't know it."

Another change gives judges an additional option when juries report they are deadlocked on a verdict. Before, the judge could send jurors back to deliberate in the dim hope of a breakthrough or declare a costly mistrial. Now, the judge may ask the jury what is causing the impasse, then give lawyers on both sides equal time to address those issues. The result, Shepard said, has been fewer mistrials.

The jury reforms came from a judicial committee headed by Ernest Yelton, a former Clay Circuit judge who recently accepted the post of executive director of the Indiana Gaming Commission.

Posted by Marcia Oddi on Thursday, January 20, 2005
Posted to Indiana Courts

Wednesday, January 19, 2005

Ind. Courts - Court of Appeals posts one new ruling today

Indiana-Kentucky Electric Corporation v. Commissioner, Indiana Department of Environmental Management (1/19/05 IndCtApp) [Administrative Law; Rulemaking]
Robb, Judge

Indiana-Kentucky Electric Corp. (IKEC) appeals the Office of Environmental Adjudication’s (OEA) order granting the Indiana Department of Environmental Management’s (IDEM) motion for summary judgment. We reverse and remand. * * *

On May 31, 2001, IKEC filed a petition for administrative review with the OEA of IDEM’s denial of its request for a waiver. Both IKEC and IDEM filed motions for summary judgment. Chief Environmental Law Judge Wayne Penrod granted IDEM’s motion for summary judgment on August 2, 2002. On that same day, IKEC filed a motion to reconsider and vacate the order granting IDEM’s motion for summary judgment, and this motion was granted on August 15, 2002. Before he could rule on the parties’ motions for summary judgment, Chief Judge Penrod retired, and Annette Biesecker was named the acting Chief Environmental Law Judge. Judge Biesecker, without conducting an evidentiary hearing, granted IDEM’s motion for summary judgment on May 8, 2003. * * *

II. IDEM and OEA’s Interpretation of the Rule

IKEC argues that both IDEM and OEA have misconstrued the waiver provision of the Rule [326 IAC 7-3-2(d)], and, because of that, OEA’s order granting IDEM’s motion for summary judgment is arbitrary and capricious. * * *

In their motions for summary judgment filed with the OEA, both IKEC and IDEM offered their own interpretations of the waiver provision of the Rule. * * *

Based upon the record before us, we cannot ascertain whether there are other ways, besides ambient monitoring, to determine if IKEC is continuing to maintain the sulfur dioxide ambient air quality standards. However, at the very least, we believe that this would constitute a genuine issue of material fact, and thus would preclude the granting of summary judgment in IDEM’s favor.

Nevertheless, we believe that both IDEM and the OEA have misconstrued the Rule. Although the Rule provides that a source owner or operator may obtain a waiver of all of his or her monitoring requirements under the Rule, IDEM’s interpretation of the Rule makes this virtually impossible. IDEM believes that ambient monitoring is the only way to determine whether a source, like Clifty Creek, is continuing to maintain the sulfur dioxide ambient air quality standards. But if ambient monitoring is the only way to determine continued maintenance of the standards, then IKEC will never be able to make the requisite showing that ambient monitoring is unnecessary to determine continued maintenance of the standard, and, thus, it could never obtain a waiver of all of its monitoring requirements. * * * IKEC’s interpretation of the Rule, though, is also not altogether accurate.

We therefore conclude that both IDEM and the OEA misconstrued the Rule, and thus the OEA’s granting of IDEM’s motion for summary judgment was arbitrary and capricious.

III. Invalid Rule

IKEC next argues that the OEA’s order granting IDEM’s motion for summary judgment is not in accordance with the law because it subjects IKEC to the requirements of an unpublished and invalid IDEM rule. The unpublished rule in question is found in an affidavit given by Dick Zeiler, an employee of IDEM who is a branch chief of the Air Monitoring Branch in the Office of Air Quality. Zeiler states that “IDEM requires ambient monitoring for purposes of 326 IAC 7-3 to be located no more than 10 kilometers from the source of the [sulfur dioxide] emissions.” The OEA accepted this statement as IDEM policy and applied this policy against IKEC when it concluded that IDEM had properly denied IKEC a waiver of its monitoring requirements under the Rule because there was no other entity within ten kilometers of Clifty Creek that was conducting ambient monitoring.

Our supreme court has previously stated that “administrative agencies may make reasonable rules and regulations to apply and enforce legislative enactments.” Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 847 (Ind. 2003). However, IDEM may only regulate by a new rule if the proper rulemaking procedures have been followed. Id. Thus, in establishing new rules, an administrative agency must comply with Indiana’s Administrative Orders and Procedures Act (AOPA), Indiana Code chapter 4-22-2, which includes provisions for public hearings and review by executive branch officials. Id. at 847-48. “By contrast, agency actions that result in resolutions or directives that relate to internal policy, procedure, or organization, and do not have the effect of law, are not subject to the same requirements.” Id. at 848.

An administrative agency must comply with the rulemaking procedures outlined in the AOPA only if they are promulgating a rule. Therefore, we must first determine whether IDEM’s “ten kilometers” policy enunciated in Dick Zeiler’s affidavit is a rule. * * *

IDEM’s “ten kilometers” policy is a rule because it is an agency statement of general applicability that is designed to have the effect of law and implements or interprets the Rule. The “ten kilometers” policy does not relate solely to IDEM’s internal policies, procedures, or organization. In adopting the “ten kilometers” rule, IDEM was required to follow the rulemaking procedures provided in the AOPA. IKEC correctly argues that there is no evidence that IDEM followed the rulemaking procedures of the AOPA when it promulgated the “ten kilometers” rule. Therefore, pursuant to Indiana Code section 4-22-2-44, the “ten kilometers” rule does not have the effect of law, and the OEA erred in applying this rule against IKEC.

Furthermore, Indiana Code section 13-14-1-11.5 also indicates that the OEA’s use of IDEM’s “ten kilometers” policy was erroneous. Indiana Code section 13-14-1-11.5(a)(2) provides that if a department proposes to utilize a policy that has not been adopted in compliance with the AOPA, the proposed policy may not be put into effect until the requirements of Indiana Code section 13-14-1-11.5(b) have been met. * * *

However, IDEM argues that, in fact, it did not create the “ten kilometers” rule. IDEM contends that the “ten kilometers” rule was created by the federal Environmental Protection Agency in 40 CFR 58, Appendix D. 40 CFR 58, Appendix D, sets out guidelines for the proper siting distances of monitoring stations. 40 CFR 58, Appendix D, does not create or even mention a “ten kilometers” rule. The “ten kilometers” rule is IDEM’s creation and should have been promulgated pursuant to the AOPA’s established guidelines.

We therefore conclude that IDEM’s “ten kilometers” rule should have been promulgated pursuant to the rulemaking procedures outlined in the AOPA, and, because it was not, this rule does not have the effect of law. OEA’s application of the “ten kilometers” rule against IKEC was not in accord with the law, and requires the reversal of the OEA’s order granting IDEM’s motion for summary judgment.

IV. Improper Standard of Review

IKEC also argues that we should reverse the OEA’s order granting IDEM’s motion for summary judgment because the OEA applied an improper standard of review. * * * Pursuant to Indiana Code section 4-21.5-3-27(a) and (b), an ALJ serves as the trier of fact in an administrative hearing. Thus, an ALJ “performs a duty similar to that of a trial judge sitting without a jury.” United Refuse, 615 N.E.2d at 104. In such a situation, a de novo standard of review is proper. Therefore, because the ALJ did not apply a de novo standard of review, the OEA’s order granting IDEM’s motion for summary judgment was not in accordance with the procedure required by law and IKEC is entitled to a new hearing.


We conclude that the OEA’s order granting IDEM’s motion for summary judgment must be reversed because the OEA misconstrued the Rule, applied an invalid unpromulgated rule against IKEC, and used an inappropriate standard of review. The OEA’s order granting IDEM’s motion for summary judgment is therefore reversed and we remand for further proceedings consistent with this opinion. Reversed and remanded.

KIRSCH, C.J., and BAKER, J., concur.

[My take on this ruling] This is a very significant decision. My only question relates to the Court's discussion of IC 13-14-1-11.5 in Part III. Just previously the Court said that the "ten kilometers" policy is a rule that is invalid because it was not properly promulgated:
IDEM’s “ten kilometers” policy is a rule because it is an agency statement of general applicability that is designed to have the effect of law and implements or interprets the Rule. The “ten kilometers” policy does not relate solely to IDEM’s internal policies, procedures, or organization. In adopting the “ten kilometers” rule, IDEM was required to follow the rulemaking procedures provided in the AOPA.
That being the case, IC 13-14-1-11.5 (relating to "nonrule policy documents") also would not be applicable, because by its terms this law relating to nonrule policy documents does not apply to "a department or statement" that "is intended by the department to have the effect of law." See IC 13-14-1-11(a)(3). This does not seem to be as clear as I would like it to be in the otherwise excellent opinion.

Posted by Marcia Oddi on Wednesday, January 19, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

AG Finan Service Inc v. Hughes, Barbara (SD Ind., Sarah Evans Barker, Judge)

Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. A.G. Financial Service Center issued private-label credit cards, which consumers used to purchase products from single merchants. Between 1992 and 1995 its stable of merchants included distributors of satellite television systems. That line of business was a disaster. A.G. Financial experienced high delinquency rates. Worse, some borrowers complained that they had been misled about the terms of credit or the costs of satellite TV. About 500 borrowers sued. A suit in Mississippi ended in a judgment for $167 million, almost all of it punitive damages. A.G. Financial responded by filing a petition in bank ruptcy. Other than about $2 million in cash, A.G. Financial’s principal asset was a claim against American General Finance, Inc. (AGFI), its corporate parent, on the theory that the parent had induced the subsidiary to mislead the borrowers or otherwise bore responsibility for their injuries. * * * Affirmed.

Bennett, Jay R. v. Frank, Matthew J. (WD Wis.)

Before POSNER, KANNE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. This appeal presents an issue of some novelty but little difficulty. The plaintiffs, inmates of Whiteville Correctional Facility, a private prison (owned by Corrections Corporation of America) that is under contract to the Wisconsin Department of Corrections, claim entitlement to the minimum wage provision of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. All their other claims have been waived.

The Fair Labor Standards Act is intended for the protection of employees, and prisoners are not employees of their prison, whether it is a public or a private one. So they are not protected by the Act. * * *

Posted by Marcia Oddi on Wednesday, January 19, 2005
Posted to Ind. (7th Cir.) Decisions

Indi. Courts - State of the Judiciary

This morning at 10:30 a.m. Chief Justice Randall T. Shepard gave the State of the Judiciary Address to a Joint Session of the Indiana General Assembly. Access the text of the 11-page address here.

Posted by Marcia Oddi on Wednesday, January 19, 2005
Posted to Indiana Courts

Ind. Law - Interesting public records question

"Board to revisit contested landfill map: Site-specific document was withheld in 2001" is the headline to this story today in the Munster Times. Some quotes:

VALPARAISO | A map of potential landfill sites in the region suppressed by the Porter County Solid Waste District board in 2002 could surface after a new board member raised the issue on Tuesday.

The renamed Recycling and Waste Reduction District board passed a motion asking their lawyer to look at documents created in the mid-90s as part of a landfill study commissioned by Porter and LaPorte counties, and decide whether they should be released.

In 2001, a company that wanted to build a landfill in LaPorte County and The Times asked for the study. The board decided to release most documents, but would not give up the map with the potential landfill sites, reasoning it was outdated but still would affect property values near those sites.

Posted by Marcia Oddi on Wednesday, January 19, 2005
Posted to Indiana Law

Law - Former Henderson Kentucky attorney's ambitious dream collapses

"Former Henderson attorney's ambitious dream collapses" is the headline to this AP story today in the Evanville Courier&Press. Some quotes from the story:

A former Henderson, Ky., attorney who envisioned a statewide law firm is now mired in a $16.9 million bankruptcy case.

From 1998 to 2002, Ron Sheffer grossed $2.6 million, according to court records. Eventually 40 lawyers and 125 employees - former U.S. District Judge Gene Brooks of Evansville, Kentucky Lt. Gov. Steve Pence, former U.S. Attorney Joe Whittle and ex-Kentucky Attorney General Chris Gorman among them - worked in Sheffer's offices from Paducah to Lexington. * * *

Legal experts say Sheffer's bankruptcy is unusual because he and his partners borrowed so much money from banks based on what they thought they would earn later, an uncommon practice for law firms, said bankruptcy trustee William Stephen Reisz and other lawyers. "How he persuaded banks to loan that much money is the craziest thing I ever saw," Reisz said.

Now, a judge has refused to discharge Sheffer's debt, a rarity in bankruptcy cases. The denial, if upheld on appeal by U.S. District Judge John G. Heyburn II, would allow creditors to try to collect all Sheffer's debts. * * *

In court papers, Sheffer's attorney, J. Baxter Schilling, defended his client as a victim of a "business transaction which through no fault of his own went awry."

The transaction was a whistleblower case filed by a former chief financial officer against Columbia/HCA Healthcare Corp. Sheffer's firm expected it would yield a $20 million legal fee, according to court records, but the firm netted less than $900,000 when the client, without the advice of counsel, settled in May 2003.

Sheffer filed for bankruptcy the next month, listing assets of $1 million and liabilities of $16,971,067. Sheffer, [is] a former Western Kentucky quarterback.

Posted by Marcia Oddi on Wednesday, January 19, 2005
Posted to General Law Related

Tuesday, January 18, 2005

Ind. Decisions - Supreme Court posts one today

Today the Supreme Court "posted" its decision in Donald Ray Wallace v. State, issued on last Thursday, Jan. 13th. For some reason it was not posted on the Jan. 13th date. Unfortunately it still is not posted, as the link on the Court's site does not work. The press did receive copies, however, as there has been plenty written about the decision, particularly in Evansville (here is a long article published today in the Courier&Press). Here is a brief Indianpolis Star note from Jan. 14th on the ruling.

[Update 1/26/05] Today the Wallace decision finally was posted successfully on the Court's site. Access it here.

Posted by Marcia Oddi on Tuesday, January 18, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals posts three today

Arturo Aguilar v. State of Indiana (1/18/05 IndCtApp) [Criminal Law & Procedure]
Crone, Judge

Arturo Aguilar petitions for rehearing in Aguilar v. State, 811 N.E.2d 476 (Ind. Ct. App. 2004), challenging the enhancement of his sentence under Blakely v. Washington, U.S. , 124 S. Ct. 2531 (2004). We grant Aguilar s petition and remand for resentencing.

Issue. We restate the issue Aguilar presents as whether the enhancement of his sentence violated his Sixth Amendment right to have a jury determine the facts upon which the enhancement was based. * * *

We agree and therefore hold that the enhancement of Aguilar’s sentence violated his Sixth Amendment right to trial by jury. * * * Petition for rehearing granted; remanded for resentencing.

BARNES, J., concurs with opinion. [Noting: "This remand for sentencing does not open all previous aggravated sentences to collateral attack under Blakely."]
BAKER, J., dissents with opinion. ["I respectfully dissent from the majority’s decision to grant rehearing in this case, inasmuch as Aguilar has raised the Blakely issue for the first time on rehearing.* * *]

The City of South Bend, Indiana, et al v. Century Indemnity Co., et al (1/18/05 IndCtApp) [Insurance; Environment]
Robb, Judge

The City of South Bend, Indiana and the South Bend Redevelopment Commission (collectively, the “City”) appeal from the trial court’s orders granting motions by Certain Underwriters at Lloyd’s, London, and Certain London Market Insurance Companies (“London”), Century Indemnity Company, and Zurich American Insurance Company (collectively, the “Insurers”) to dismiss the City’s amended complaint and denying the City’s motion for appointment of receiver. We affirm in part and reverse and remand in part.

Issues. The City raises two issues for our review, which we restate as follows: Whether the trial court properly dismissed its complaint against the Insurers upon finding that the suit was barred by the “direct action” rule; and Whether the trial court properly denied its request for appointment of a receiver to act on behalf of a dissolved company. * * *

Following Studebaker’s divestiture of its automotive facilities in the City, the facilities were used for a variety of other operations. In the early 1990s, the City conducted an environmental evaluation of the former Studebaker facilities and determined that there were significant environmental releases impacting the soil and groundwater at those facilities and surrounding areas. The City is now the owner of significant portions of the former Studebaker facilities.

In March of 2003, the City filed a complaint for damages and declaratory relief against the Insurers and McGraw-Edison, the company alleged to be the successor to Studebaker. With respect to the insurers, the City sought a declaration that the Insurers “are obligated to provide insurance coverage, subject to their respective policy limits, for the environmental liabilities [the City] asserts against Studebaker.” Thereafter, the Insurers filed motions to dismiss the complaint for failure to state a claim upon which relief may be granted. The City filed a motion for appointment of receiver to “represent Studebaker’s interests, particularly with respect to the pursuit of coverage under the company’s insurance policies for the claims at issue in this matter.” The Insurers’ motions to dismiss were granted, with prejudice, and the City’s motion for appointment of a receiver was denied. This appeal ensued. * * *

Conclusion. The City’s declaratory judgment action is not a direct action against the Insurers and the trial court erred in dismissing the action. The trial court did not err, however, in denying the City’s motion to appoint a receiver. Accordingly, the trial court’s order regarding the receiver is affirmed, the trial court’s orders granting the Insurers’ motions to dismiss are reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Affirmed in part; reversed and remanded in part.
KIRSCH, C.J., and BAKER, J., concur.

Carson Lutz v. The City of Indianapolis (1/18/05 IndCtApp) [Municipal Law; Constitutional Law]
Robb, Judge

After a bench trial, the trial court found that Carson Lutz violated the City of Indianapolis’ (“City”) unlawful noise ordinance (“Ordinance”). Lutz now appeals. We reverse.

Issue. Lutz raises three issues for our review, but we find one issue to be dispositive: whether the Ordinance is unconstitutionally vague. * * *

For the reasons discussed above, we hold that Section (a) and portions of Subsection (a)(2) of the Ordinance do not include a sufficiently ascertainable standard of conduct and are therefore unconstitutionally vague. The following provision of Subsection (a)(2), however, contains a sufficiently ascertainable standard of conduct and can be severed from the remainder of the Ordinance: “The operation of any such set, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such a manner as to be plainly audible at a distance of fifty (50) feet from the building, structure or vehicle in which it is located shall be prima facie evidence of a violation of this subsection.” Nevertheless, because the City did not present any evidence that Lutz played music in his vehicle between the hours of 11:00 p.m. and 7:00 a.m. that was plainly audible at a distance of fifty feet from his vehicle, the City did not present sufficient evidence that Lutz violated the Ordinance.
BAKER, J., and CRONE, J., concur.

Posted by Marcia Oddi on Tuesday, January 18, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts four today

Loughman, Kathleen N v. Malnati Organization (ND Ill.)

Before POSNER, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Kathleen Loughman brought suit against her employer, Malnati Organization, Inc. (d/b/a Lou Malnati’s Pizzeria), claiming it failed to protect her from sexual harassment by her coworkers. The district court granted Malnati’s motion for summary judgment, and Loughman appeals. * * *

Malnati’s argues that “three isolated incidents,” as it describes them, do not make for a hostile work environment and that Loughman would have complained to one of the other managers immediately after the first two incidents or would not have continued to work at the restaurant if she found the environment there to be offensive. Again, Malnati’s is free to make that argument at trial. But, viewing the evidence in the light most favorable to Loughman, a reasonable jury looking at the severity of the incidents and Loughman’s frequent complaints could find that Loughman believed her work environment was offensive. For these reasons, we REVERSE the district court’s judgment and REMAND the case for further proceedings.

Lunini, Joseph A. v. Grayeb, Charles V. (CD Ill.)

Before FLAUM, Chief Judge, and CUDAHY and POSNER, Circuit Judges.
CUDAHY, Circuit Judge. Following an alleged physical altercation with Charles Grayeb, his former boyfriend, appellee Joseph Lunini filed suit against Grayeb and three police officers who allegedly refused to arrest Grayeb due to among other things, that the officers’ refusal to arrest Grayeb violated Lunini’s equal protection rights under the Fourteenth Amendment. The district court granted in part and denied in part the defendants’ subsequent motion for summary judgment, holding, inter alia, that the police officers’ claims of qualified immunity fail because Lunini’s equal protection rights were “clearly established” at the time of the incident and material questions of fact remain as to whether the police officers actually violated those rights. Appellants now appeal that ruling on the narrow question whether Lunini’s equal protection rights were indeed “clearly established” for qualified immunity purposes at the time of the alleged incident. * * *

Certainly Lunini is unhappy with defendant police officers’ response to the incident at the High Street residence. However, on this record it appears highly doubtful that any alleged police misjudgments (if misjudgments there were) took on constitutional proportions. While we take pains to affirm the baseline principle that police support and protection must be afforded to all citizens on a non-discriminatory basis, we decline to take the unprecedented step of implying a general constitutional police duty to arrest certain individuals during a response to an isolated domestic incident. Such a ruling would threaten to turn every police house call into a potential federal constitutional lawsuit. Cf. Olech, 528 U.S. at 565-66 (Breyer, J., concurring) (warning against a rule that “would transform many ordinary violations of city or state law into violations of the Constitution”).

IV. CONCLUSION. We are persuaded that, under the circumstances of the instant case, an ordinary police officer could not know that he or she risked violating Lunini’s civil rights by failing to arrest Grayeb. Accordingly, we must conclude that the equal protection rights alleged to have been violated in the instant case were not clearly established at the time of the incident at the High Street residence. The order of the district court regarding defendant police officers’ claims of qualified immunity is accordingly REVERSED and the case REMANDED with instructions to enter summary judgment in favor of defendants Stenson, Kice and Barden with respect to Lunini’s class of one equal protection claim.

Weinschneider, Sidney v. Hoseman, Daniel (ND Ill.)

Before POSNER, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Sidney Weinschneider, a Chapter 7 debtor in bankruptcy, appeals from the district court’s affirmance of an order of the bankruptcy court denying his request for attorney fees from the bankruptcy estate. * * *

All of which means that the basis for an award of fees in this case can only come from state law. And on this point, Illinois law is clear and unhelpful to Weinschneider. Illinois follows the American rule, under which attorney fees are not available unless the parties have agreed to them or a statute provides for them. * * *

Unfortunately for Weinschneider, the contract in this case does not contain a provision for attorney fees, nor is there a statute providing for fees in this situation. His claim for attorney fees as an administrative expense was properly denied, and, accordingly, we affirm the judgment of the district court.

Lefkovitz, Sigmund v. Wagner, Nathan (ND Ill.)

Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Before us is a multifaceted challenge to the confirmation of an arbitration award. * * *

The district court’s judgment confirming the award and denying sanctions is AFFIRMED.

Posted by Marcia Oddi on Tuesday, January 18, 2005
Posted to Ind. (7th Cir.) Decisions

Env't - Controversial landfill bill(s) to be heard in Senate committee

The Munster Times has an editorial today opposing two bills introduced by Senator Beverly Gard, reportedly scheduled to be heard today in the Senate committee that she chairs. The bills are SB 279 (Environmental permit applications):

Synopsis: Environmental permit applications. Eliminates: (1) the good character requirements for applications for permits for solid waste and hazardous waste facilities; and (2) the local or regional need demonstration requirement for applications for permits for solid waste facilities.
and SB 280 (Solid waste management districts):
Synopsis: Solid waste management districts. Allows a county to determine not to be a solid waste management district or part of a joint district. Repeals an obsolete statute.
However, a check of today's Senate Committee Schedule for the Energy and Environmental Affairs Committee does not include SB 280.

Posted by Marcia Oddi on Tuesday, January 18, 2005
Posted to Environment

Law - Impact of recent U.S. Supreme Court sentencing decisions

Although I've been leaving most reporting on the U.S. Supreme Court's decisions last week on the federal sentencing guidelines to the experts, such as the excellent and exhaustive Sentencing Law & Policy blog, this piece today by Adam Liptak of the NY Times makes some interesting points not reflected in its headline, which reads: "Judges' New Leeway in Passing Sentence May Change Little". It begins:

Allowing federal judges great leeway in sentencing criminals does not have to breed chaos, say judges and sentencing specialists in states that already have such systems.

When the Supreme Court said last week that federal sentencing guidelines were merely advisory, many prosecutors and lawmakers predicted that federal judges would start issuing wildly inconsistent sentences based on little more than sentiment and whim. But the few states that already use similar systems have produced remarkable conformity. [read on]

Posted by Marcia Oddi on Tuesday, January 18, 2005
Posted to General Law Related

Ind. Gov't - Farm land protection council suspended

The Muncie Star-Press reports today, in a story headlined "Farm land protection council suspended," that:

MUNCIE - Gov. Mitch Daniels has suspended the activities of the Indiana Land Resources Council, which was created by the state Legislature in 1999 to address open space protection, farm land preservation, urban sprawl, downtown redevelopment, forest preservation, and planning and zoning.

The move mystified Ball State University urban planning professor Eric Kelly, a member of the council, which was soon planning to submit a smart growth proposal to Lt. Gov. Becky Skillman.

Andy Miller, a Weaver Popcorn Co. executive whom Daniels appointed as assistant commissioner of agriculture, asked Kelly and the seven other members of the council to submit letters of resignation. Miller also asked the council's paid staff person, Joe Tutterrow, to resign. He plans to do so.

But Kelly said he would not resign. "Just asking doesn't do it," he said. "If he's got a reason, I'll consider it. Asking us to resign without finding out what we've been doing or hope to do is a little strange. I don't understand why they did not call us together to discuss this. They didn't even bother to ask."

During his campaign for governor last year, Daniels said state government had hundreds of boards and commissions of questionable value, and he promised to eliminate those that were ineffective after a thorough review. * * *

The professor said of Daniels: "Maybe he wants to start from scratch and take another three or four years. Or maybe he thinks he can come up with a top-down recommendation. Or maybe he'll just ignore the issue."

Council members received $50 a meeting plus mileage, Kelly said. Other members included a mayor, a county executive, an executive of The Nature Conservancy, a developer, a farmer and a forester.

Posted by Marcia Oddi on Tuesday, January 18, 2005
Posted to Indiana Government

Biotech - NIH Revises Plan for Quick, Free Access to Study Results

"NIH Revises Plan for Quick, Free Access to Study Results" is the headline to this story today in the Washington Post. Some quotes:

An ambitious proposal to make the results of federally funded medical research available to the public quickly and for free has been scaled back by the National Institutes of Health under pressure from scientific publishers, who argued that the plan would eat into their profits and harm the scientific enterprise they support.

The initial plan, encouraged by Congress and hailed by patient advocacy groups, called for the results of NIH-funded research to be posted on a publicly accessible Web site within six months after they are published in a scientific journal. Most research results now are available only by subscription to the journal -- at a cost that often reaches into the thousands of dollars -- or on a pay-per-article basis that can cost $100 or more for two or three articles.

Posted by Marcia Oddi on Tuesday, January 18, 2005
Posted to Biotech

Monday, January 17, 2005

Law/Econ. Dev. - More on "debate brewing in Indiana over human cloning"

Last Friday (you will find it if you scroll down) the ILB quoted from a front-page story in the Indianapolis Star about Pat Miller's (that is state senator Pat Miller, not Gov. Daniel's new commerce secretary Pat Miller) bill to prevent "human cloning" in Indiana. The Star story noted:

California's stem cell cash bonanza has set the stage for what some are likening to a new gold rush. Some worry that leading scientists might follow the money. And some states are considering whether to follow California's lead, for fear they might suffer a brain drain.
More on that point from a story today in the NY Times:
While the federal government has sharply limited research on embryonic stem cells, casting it as a moral issue, governors around the country are moving aggressively to push the research forward, spending millions, seeking to lure top scientists to their states and planning state-of-the-art research facilities. * * *

"We have to act aggressively," [NJ's acting governor] said, "because other states like Wisconsin and Illinois are right behind us." * * *

At the very least, competing states are trying to keep their own researchers from joining a migration to the West Coast. At the most, they are cultivating their own biotech valleys, already thriving in ZIP codes around Boston, San Francisco and the Research Triangle in North Carolina, to name a few. * * *

What every state covets, of course, are the clusters of private companies that grow up around medical centers and the investment they bring. It is hard to forecast investment in private stem cell ventures, however, said G. Steven Burrill, the chief executive officer of Burrill & Company, a biotechnology investment firm in San Francisco. * * * The trend to public research by the states, while fostering innovation, may also cause duplication and splintering in research, Mr. Perry said.

"It's going to create a crazy-quilt pattern across the U.S.," he said. In some states, stem cell research will flourish, he said. Other states, he added, "are going to criminalize the same research, where you could get thrown in jail for moving a cell nucleus to the wrong place."

Posted by Marcia Oddi on Monday, January 17, 2005
Posted to Biotech | Indiana Law | Indiana economic development

Env't - More on Bill and Jill Ruckelshaus C-SPAN Q&A interview

As I noted Saturday, last evening Brian Lamb of C-SPAN interviewed Bill and Jill Ruckelshaus on the new C-SPAN show, Q & A (which replaced the beloved Booknotes). I found the show and the subjects were outstanding (but a disclaimer may be in order - I worked on Bill's U.S. Senate campaign and was the director of a commission he chaired for Governor Bowen). I didn't know, however, the story of how he came to be appointed the first EPA administrator by President Nixon. Here from the transcrpt of last night's show:

LAMB: But you went to Princeton. You went to Harvard, got a law degree. You were head of the Environmental Protection Agency twice, the FBI director for a while, deputy attorney general, head of BFI, Browning-Ferris, on and on. Along the way, though, what other little things, or maybe not so little things, did you do to make sure that you were successful? What extra lengths did you go to to -- how'd you get into these places?


WILLIAM RUCKELSHAUS: Well, some of it was luck. I mean, being -- for instance, getting the first Environmental Protection Agency administrator -- the president had offered that to a couple of people. And I was in John Mitchell's office one day. I was in the Justice Department at the time. And he said, Say, I saw your name in the paper as a possible EPA administrator. And I explained to him where that came from, that I wasn't unhappy in the Justice Department, I wasn't trying to fish for another job. And he said, Well, would you like that job? I said, In fact, having seen the same thing myself, I've looked into it and it would be challenging, but I'm not here to ask you for that. I was there on a different -- for a different reason. He said, Well, let me raise it with the president. And he did, and about 48 hours later, I was announced as the EPA administrator.

LAMB: Let me stop you, though, because that story I read somewhere, and it's -- there's a more precise part of it I want you to tell because people that watch this -- we try to go through these kind of things. Your name was dropped in the "Periscope" column in "Newsweek" magazine.


LAMB: And that's what I want you to tell me because people don't really believe these things happen. Explain how that happened.

WILLIAM RUCKELSHAUS: I had been in the state board of health in Indiana, in the Indiana attorney general's office, representing the state board of health in water pollution, air pollution. To the extent the state of Indiana had any laws that affected air and water pollution in the '60s, and we didn't have very many, I was kind of it. I was at the state board of health, representing them as they pursued somebody who was stinking up a town or something. That's what you needed to do to get in trouble then. And there was a person assigned named Jerry Hansler (ph) from the National Health Service to Indiana. He was assigned to the state board of health. And he and I used to go around in his panel truck, looking for pollution cases. And he'd get out and take a picture of them, and we'd bring it to this pollution control board. He was the one who dropped this into that "Periscope" column. He lived in New York at the time, and I mean, I'd lost track of him. I'd moved to Washington after having run for the Senate, and here came my name in print. I didn't have any idea how it got there, and he called me up and said, I bet you wonder how you got your name in "Newsweek." And I said, Yes. And he says, I put it there. He says, You'd be good at that job.


LAMB: So I mean, there's a case of where you weren't even trying to get the job, and he dropped the name in without you knowing it.

WILLIAM RUCKELSHAUS: That's right. He had -- he was working then back with the Public Health Service in New York. He was the first EPA administrator, regional administrator in New York City, after I was appointed, because he was terrific. He did a wonderful job there.

You can watch the entire interview, or read the transcript, right here on the C-SPAN Q & A site.

Posted by Marcia Oddi on Monday, January 17, 2005
Posted to Environment

Sunday, January 16, 2005

Env't - More on Illinois Gov.'s landfill closings

Last Tuesday we had an entry about how Gov. Rod Blagojevich had ordered two landfills closed in Illinois. But yesterday the Chicago Tribune had followed up with a story titled "Governor's bid to shut down 2nd dump fails." The report begins:

Gov. Rod Blagojevich overstepped his authority by shutting down a Ford Heights landfill, a judge ruled Friday in a case that became entwined in a bitter and public feud between the governor and his father-in-law, Chicago Ald. Richard Mell.

In a handwritten order, Cook County Circuit Judge Thomas P. Quinn ordered the facility reopened just four days after Blagojevich said it was a public health risk and invoked rarely used powers to close it.

Blagojevich became personally involved in the Ford Heights dispute after ordering the closing last week of a landfill in Joliet that he said was linked to his father-in-law and filled with illegal debris. That action led to a volley of charges from Mell, including the claim that Christopher Kelly, head of Blagojevich's campaign fund, peddled posts on state boards and commissions in exchange for political contributions.

Posted by Marcia Oddi on Sunday, January 16, 2005
Posted to Environment

Ind. Decisions - More on pending Court of Appeals decision in same-sex marriage case

The Indianapolis Star today has a story headlined "Same-sex marriage ruling due: Decision is expected any day after year of waiting."

(Readers will recall an ILB entry from last Tuesday titled "Tomorrow is the one-year anniversary of the same sex marriage argument before the Indiana Court of Appeals panel.")

Some quotes from the Star story, written by Tim Evans:

In the 12 months since judges Michael P. Barnes, Ezra H. Friedlander and James S. Kirsch heard final arguments in the case on Jan. 12, 2004, the same-sex marriage issue has continued to generate controversy here and throughout the country:
  • Massachusetts legalized same-sex marriage after a court challenge similar to the one here, and officials in several other communities, from San Francisco to New Paltz, N.Y., briefly ignored state bans and issued licenses to thousands of same-sex couples.

  • In November, voters in 11 states approved constitutional amendments prohibiting same-sex marriage.

  • Democratic leaders in the House stymied legislation to enact a constitutional amendment in the 2004 Indiana General Assembly, but the measure is being revived in the current session.

  • President Bush came out during his re-election campaign in support of a federal constitutional ban.

  • National gay and lesbian advocacy groups clashed over whether the marriage fight is hurting other civil rights efforts.
Regardless of how the Indiana judges rule, the decision will shift the national spotlight to Indiana. This likely won't be the end -- attorneys in the case expect it ultimately to wind up before the Indiana Supreme Court. * * *

Same-sex marriage is America's new civil rights battleground, said Jennifer Drobac, a professor at the Indiana University School of Law-Indianapolis. The case hinges on a handful of complicated legal issues, and Drobac said religious beliefs make it hard for many Hoosiers to separate emotions from the legal points.

"I am not sure whether Indiana is ready to acknowledge same-sex marriage as the civil rights issue that it is," she said. Drobac said she hopes the judges are not sitting on the case to see how legislators respond to the proposed constitutional amendment.

"That would make this case moot," she said. "It would be a long wait, but we've already been waiting a long time for this opinion." More likely, Drobac said, the judges are still sorting out how the legal arguments relate to the Indiana Constitution.

While too much shouldn't be read into other decisions by the court and justices involved in the marriage case, Drobac said some recent rulings have recognized the rights of same-sex partners. "Justice Friedlander's recent call for the legislature to protect children of same-sex families highlights the irrationality and chaos that currently exist without some regulatory scheme for these families," Drobac said.

Another story in today's Star, this one by Michele McNeil, is headlined "GOP isn't giving gay marriage same sense of urgency now."

Posted by Marcia Oddi on Sunday, January 16, 2005
Posted to Ind. App.Ct. Decisions

Env't - Concern over Daniels' IDEM direction

"Concern over Daniels' IDEM direction" is the headline to this story today in the South Bend Tribune. Some quotes:

A lot of people with environmental and conservation groups have some concerns about the changes Gov. Mitch Daniels is making in the Indiana Department of Environmental Management. Some are more concerned about shake-ups at the top of the agency. Others are more concerned about things he has been quoted as saying about the direction of the agency. * * *

The Associated Press quoted Daniels as telling the staff of the agency that his and their top priority should be to help businesses create new jobs in Indiana. "If, as he says, the department's purpose is to create jobs, then whose job is it to protect public health and our state's environment?" Laura Fuderer, head of the conservation committee of the South Bend-Elkhart Audubon Society, wrote in an e-mail. "And why isn't job creation the purpose of an economic department instead?" * * *

Tim Maloney, executive director of Hoosier Environmental Council, based in Indianapolis, was not quite as critical. He said that while it's not uncommon for an new administration to want its own people, removing people "... in this fashion so quickly causes them to lose some institutional memory and maybe some people who might be valuable."

But Maloney was hesitant to read too much into something he personally didn't hear Daniels say. He said members of the Hoosier Environmental Council and other environmentalists agree with Daniels' concern that it has taken IDEM too long to make decisions on permits businesses need to operate.

Maloney said the worst problems have been in permits allowing companies to discharge things into the state's water. The permits generally run for five years, and instead of renewing them or changing them after that, IDEM has simply extended the old permit, according to Maloney.

"That should be the rare exception," he said. "But for water (permits), it is the norm." Maloney said some permits have been extended for years instead of changes being made to renew them. "You have to balance getting things done timely and getting them done well," he said.

The Louisville Courier Journal has an opinion piece on IDEM today by columnist David Hawpe, titled "The idea is to protect the environment." It begins:
In news from the Hoosier capital last week, Republican Gov. Mitch Daniels fired one Indiana Department of Environmental Management administrator and pressured six others into resigning.

He traipsed over to the agency and told employees that their top priority should be to help business create new jobs. Which is sort of like telling the highway patrol that its new top priority should be to promote speeding.

How different from the approach taken by Kentucky's new GOP governor. Ernie Fletcher is second to none in his devotion to the free market, and to economic growth as the preferred method for solving society's social and economic problems. He's a real Republican.

But in forming an energy task force last November, he gave the environment equal emphasis. He at least said, inclusively, "It is time to tackle the challenge of ensuring low-cost energy for the next generation of Kentuckians while we develop our natural resources in a responsible and environmentally sound way."

During a break in the energy group's first meeting, his environmental chief, LaJuana Wilcher, said the Governor wants an energy policy that will improve air quality and reduce greenhouse gas emissions.

Up in Indiana, Daniels is putting jobs first, condemning regulation that might slow economic development and burbling to environmental officials, "Nowhere can a bigger difference be made more swiftly than by the people in this room."

[Note] Perhaps use of picturesque verbs such as "traipsed" and "burbling" is more of a southern thing; I don't see them used that much in the Indianapolis Star or the Gary Post-Tribune.

Posted by Marcia Oddi on Sunday, January 16, 2005
Posted to Environment

Saturday, January 15, 2005

Ind. Courts - Ohio lower court hopping into video online trend

"Ohio lower court hopping into video online trend" is the headline to this story today in the Akron Ohio Beacon Journal. Some quotes:

CLEVELAND - An Ohio county judge is posting online video of people being sentenced for robbery, rape and other crimes, an uncommon step for a trial court.

Common Pleas Judge James L. Kimbler set up his personal Sony digital camcorder in August in northeast Ohio's Medina County. The prosecutor, defense lawyer and defendant can be seen and heard. The judge is heard but not seen. "It's all public record anyway," Kimbler said. "If the general public and law students know what we do it increases their understanding."

Some state Supreme Courts, including those in Florida, Indiana and Ohio, have shown arguments between attorneys on the Web. The trend is slow to arrive at local or regional courts, which typically handle more cases. * * *

Kimbler, an Ohio county judge for eight years, broadcasts hearings and sentences on local public access television, but not trials. He posts only sentencings on the Web site.

Kimbler is one of four judges in Medina County, 25 miles southwest of Cleveland, and typically presides over theft, robbery, assault, rape, drug dealing and murder cases. He plans to post most of his sentencings, which he guessed would involve number about 150 to 200 cases over a year.

Posted by Marcia Oddi on Saturday, January 15, 2005
Posted to Indiana Courts

Law - Not to be missed, from C-SPAN

  • Q&A with William and Jill Ruckelshaus. William and Jill Ruckelshaus are interviewed by Brian Lamb. William Ruckelshaus was the first EPA Administrator (serving from 1970-1973 and 1983-1985) and was Acting FBI Director (1973). He is currently with the Madrona Venture Group. Jill Ruckelshaus, a Commissioner on the United States Commission on Civil Rights (1980-83) is currently a Director at Costco Wholesale Corporation. Of course, Hoosiers are aware that Bill Ruckelshaus was also majority leader in the Indiana House. Watch on C-SPAN at 8:00 p.m. or 11:00 p.m. Sunday evening (Jan. 16th), or at 6:00 a.m. Monday morning.

  • Constitutional Relevance of Foreign Court Decisions. A rare on-camera appearance by Justice Scalia, along with Justice Breyer, engaging in a more that 1:30 hour discussion at the U.S. Assn. of Constitutional Law, American University, Washington College of Law. Justices Scalia and Breyer talked about the relevance of foreign law for American Constitutional adjudication. Among the topics they addressed were using foreign court precedents in deciding U.S. Constitutional cases and whether the U.S. should take into account shifting world standards on social and moral issues such as the death penalty. The discussion was moderated by New York University Law Professor Norman Dorsen. Watch on C-SPAN at 6:25 p.m. tonight (Saturday) or 10:00 a.m. Sunday morning (Jan. 16th).

    [More] Here is a good article on the Scalia-Breyer televised discussion/debate from Friday's Washington Post. And here is a 23-page "Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer -- AU Washington College of Law, Jan. 13, 2005."

    Posted by Marcia Oddi on Saturday, January 15, 2005
    Posted to General Law Related

    Ind. Decisions - Star editorial urges Supreme Court to reconsider last Tuesday's Corcoran decision

    In an editorial this morning the Indiana Star was about the Supreme Court's ruling in Joseph E. Corcoran v. State of Indiana (1/11/05 IndSCt):

    Death Row inmate should be allowed to appeal his sentence despite missing the deadline. * * * The 1997 crime wasn't the first time Corcoran was accused of murder. He was charged with killing his parents in 1992 at their Steuben County home, a crime for which he was acquitted. Prosecutors contended that Corcoran, 16 at the time, shot his parents because they were too strict. He then calmly got on a bus and went to school.

    Yet, his failure to meet the deadline for deciding to appeal may well have been a result of his mental illness. Given the finality of the death penalty, he should be allowed one more chance.

    In passing a death penalty reform measure in 2003, the legislature clearly wanted an extra layer of review in capital punishment cases. Under the new standards, Corcoran deserves the right of further appeal.

    Posted by Marcia Oddi on Saturday, January 15, 2005
    Posted to Ind. Sup.Ct. Decisions

    Friday, January 14, 2005

    Ind. Courts - Charges to be filed against Elkhart Superior Court judge

    WNDU-TV is reporting this afternoon that "The Indiana Commission on Judicial Qualifications is filing charges against an Elkhart Superior Court judge for violating ethics rules." The incident dates back to late 2003. Earlier stories are available here and here.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Indiana Courts

    Ind. Decisions - Transfer list for week ending January 14, 2005

    Here is the Indiana Supreme Court's transfer list for the week ending January 14, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

    Five cases were granted transfer and two were dismissed today.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Indiana Transfer Lists

    Ind. Decisions - Ten (yes ten!) decisions posted today from the Court of Appeals

    American General Financial Services, et al. v. Theodore Franklin Miller, II (1/14/05 IndCtApp) [Arbitration]
    Mathias, Judge

    Theodore Miller (“Miller”), an Indiana resident, is a plaintiff in a lawsuit pending in Mississippi against American General Financial Services, Inc., Merit Life Insurance Co., and Yosemite Insurance Co. (collectively “American General”). Alleging that Miller’s claims in the Mississippi lawsuit are subject to a binding arbitration agreement, American General filed a petition to compel arbitration against Miller in Vanderburgh Superior Court. Miller filed a motion to dismiss American General’s petition, which the trial court granted. American General appeals and argues that the trial court abused its discretion when it granted Miller’s motion to dismiss based on the principles of comity. Concluding that the trial court abused its discretion when it granted Miller’s motion to dismiss, we reverse and remand for proceedings consistent with this opinion. * * *

    Finally, we note that pursuant to the terms of the loan agreement, American General filed its petition to compel arbitration in the Vanderburgh Superior Court. On the other hand, Miller, an Indiana resident, is suing American General and its affiliates, in a Mississippi court even though the loan transaction occurred in Indiana where American General maintains its principal place of business. Accordingly, we conclude that under the facts and circumstances before us and given Indiana’s strong policy favoring the enforcement of arbitration agreements, the trial court abused its discretion when it dismissed American General’s petition to compel arbitration based on the principles of comity.
    Reversed and remanded for proceedings consistent with this opinion.
    DARDEN, J., and FRIEDLANDER, J., concur.

    Carl Richard v. State of Indiana (1/14/05 IndCtApp) [Criminal Law & Procedure]
    Mathias, Judge

    Carl Richard (“Richard”) was convicted of Class C felony dealing in marijuana in Fulton Circuit Court. Richard appeals his conviction arguing that the trial court abused its discretion when it admitted evidence seized during the search of his residence and outbuildings because the search warrant was not supported by probable cause. Concluding that the search warrant was supported by probable cause, we affirm. * * *

    DARDEN, J., and FRIEDLANDER, J., concur

    Devlin Taylor v. State of Indiana (1/14/05 IndCtApp) [Criminal Law & Procedure]
    Mathias, Judge

    Devlin Taylor (“Taylor”) was convicted of Class D felony operating a vehicle while intoxicated See footnote in Marion Superior Court. He was sentenced to serve 730 days with 120 days executed in a Community Corrections program and 610 days suspended to probation. Taylor appeals and raises two issues, which we restate as: Whether the evidence was sufficient to support his Class D felony operating while intoxicated conviction; and, Whether the trial court abused its discretion when it ordered Taylor to establish paternity to his child as a condition of his probation. Concluding that the evidence was sufficient to support Taylor’s conviction and the trial court acted within its discretion when it ordered Taylor to establish paternity for his child, we affirm. * * *

    Initially, we observe that public policy favors establishing paternity of a child born out of wedlock. See Ind. Code § 31-14-1-1 (1998). Beyond good public policy, it is simple, common sense. While we can only assume from the record before us that Taylor has consistently provided support for his child in the past, without establishing paternity to his child there is nothing to prevent Taylor from ignoring his obligation in the future. Therefore, at worst, requiring a convicted felon like Taylor to establish paternity to his child at least prospectively safeguards the general public and helps to formally establish the familial relationships that create a law-abiding citizen. Moreover, ordering Taylor to initiate paternity proceedings will create a legal obligation that is more insistent than the all-to-easily ignored moral obligation Taylor touts. Accordingly, we conclude that trial court acted within its discretion when it ordered Taylor to establish paternity to his child as that condition is reasonably related to the goals for probation conditions. * * *

    The evidence was sufficient to support Taylor’s operating a vehicle while intoxicated conviction and the trial court acted within its discretion when it ordered Taylor to establish paternity to his child as a condition of probation. Affirmed.
    DARDEN, J., and FRIEDLANDER, J., concur.

    SCI Indiana Funeral Services, Inc. v. D.O. McComb & Sons, Inc. and Terra Services, Inc. (1/14/05 IndCtApp) [Statutory Construction]
    Baker, Judge
    [Among other things, this case involves interpretation of]Indiana Code section 23-14-46-7, the Exclusive Rights Act, which affords a cemetery owner the exclusive right to perform certain functions, including the opening and closing of a gravesite. * * *

    [O]n July 1, 1997, our legislature enacted the Exclusive Rights Act, which provides in pertinent part that “Because the owner of a cemetery is responsible for the performance of the care and maintenance of the cemetery, a cemetery owner has the exclusive right to,” among other things, “open and close a grave or grave space, burial space, crypt, or niche in the cemetery.” Ind. Code § 23-14-46-7 (emphasis added). The General Assembly also determined that violations of the Act would result in criminal prosecution under Indiana Code section 23-14-46-8 and Indiana Code section 35-50-3-3. * * *

    Finally, we reject McComb’s contention that it could lawfully perform the tasks enumerated in the Exclusive Rights Act because it was the authorized representative of the owner of the cemetery. As McComb correctly points out, owners of real estate enjoy the exclusive right to use and enjoy their real estate as they wish, and there is generally no prohibition against transferring such rights by way of mortgages, leases, easements and the like. However, given McComb’s status at this juncture, it is not reasonable to conclude that the General Assembly could have considered a third party engaged in litigation with a cemetery owner to be that owner’s authorized representative. Instead, we believe it reasonable to infer from the language in the Exclusive Rights Act that the legislature meant only to extend the “exclusive right” to perform this type of work to the cemetery owner’s employees, agents or other individuals who may be under the cemetery owner’s direct “control.” Quite simply, McComb does not fit this description. Hence, for all these reasons, summary judgment was improperly entered for McComb, and summary judgment should be granted to SCI. The judgment of the trial court is reversed, and this cause is remanded to the trial court with instructions that it enter summary judgment for SCI.
    FRIEDLANDER, J., and ROBB, J., concur.

    Kenyan Taylor v. State of Indiana (1/14/05 IndCtApp) [Criminal Law & Procedure]
    Vaikik, Judge
    Kenyan L. Taylor appeals the denial of his petition for post-conviction relief. Because we find that Taylor’s trial counsel provided ineffective assistance by failing to object to an instruction on the basis that it omitted an essential element of the offense, we vacate Taylor’s conviction and remand for a new trial. * * *

    [T]here is a reasonable probability that had trial counsel objected to the accomplice liability instruction and tendered an instruction outlining all of the elements required to find Taylor guilty as an accomplice to murder, the jury’s verdict would have been different, i.e., the jury could have concluded, for example, that Bowling did not knowingly or intentionally kill Anderson. This is so especially in light of the fact that Bowling pled guilty to conspiracy to commit criminal recklessness. Without an instruction that demarcates all of the elements of the offense for which the State sought to hold Taylor liable, the jury was clearly impeded in its role as a fact-finder. As such, Taylor was prejudiced by trial counsel’s deficient performance. Consequently, we find that the post-conviction court erred by concluding that Taylor did not receive ineffective assistance of trial counsel and by not granting Taylor’s petition for post-conviction relief.

    For the foregoing reasons, we reverse the post-conviction court’s denial of Taylor’s petition for post-conviction relief and remand for proceedings not inconsistent with this opinion. Reversed and remanded.

    RILEY, J., and CRONE, J., concur.

    Indiana Department of Correction and Indiana Department of Administration v. Swanson Services Corporation (1/14/05 IndCtApp) [Contracts]
    Baker, Judge
    Appellants-defendants Indiana Department of Correction (DOC) and Indiana Department of Administration (DOA) (collectively, DOC) appeal the trial court’s grant of summary judgment in favor of appellee-plaintiff Swanson Services Corporation. Specifically, DOC raises three issues, which we consolidate and restate as: whether a valid contract existed between the parties. Finding that a contract existed that required the State to accept Swanson’s stand-alone food commissary system but that Swanson abandoned its right to stand on this term by making modifications for the interfacing of its system with DOC’s computer system, we reverse the judgment of the trial court and remand with instructions to enter judgment for DOC in accordance with its cross-motion for summary judgment. * * *

    Nevertheless, we note that Indiana Code section 4-13-2-14.2, requires that “a contract to which a state agency is party must be in writing.” This is so in order to “preclude fraudulent claims that would likely arise when the word of one person is pitted against the word of another and to remove the temptation of perjury by preventing the rights of litigants from resting wholly on the precarious foundation of memory.” Coca-Cola Co. v. Baby-Backs Int’l, Inc., 806 N.E.2d 37, 42 (Ind. Ct. App. 2004). In other words, the contract must be written so that it is clear what the contract does and does not include. As Swanson has argued all along, the contract does not encompass the interface. Therefore, Swanson is asking for compensation for work that was not included in the written contract. Swanson cannot have it both ways. The work done on the interface was simply a cost of doing business. Swanson acknowledged as much at oral argument by agreeing that it would not have sought to recover for work done on the interface had the contract been terminated after eight years rather than after a few months.

    In sum, we find that a valid contract existed that did not include the interface, but Swanson waived its ability to argue that the stand-alone system was all that the contract required by agreeing to create the interface. Because Swanson did not argue before the trial court that it should recover for work done on the interface in quantum meruit, we cannot now fashion an equitable remedy for any work done outside the contract.

    The judgment of the trial court is reversed and remanded with instructions to enter judgment for DOC in accordance with its cross-motion for summary judgment.
    SHARPNACK, J., and FRIEDLANDER, J., concur.

    Wayne Campbell v. State of Indiana (1/14/05 IndCtApp) [Criminal Law & Procedure]
    Baker, Judge
    Appellant-defendant Wayne Campbell appeals his convictions on two counts of Attempted Murder, See footnote a class A felony, and Burglary Resulting in Serious Bodily Injury, a class A felony, claiming that reversal is warranted because: (1) his right against self-incrimination was violated when police officers interrogated him before he was given the Miranda warnings; (2) the evidence was insufficient to support the convictions; (3) the enhanced conviction for burglary resulting in serious bodily injury cannot stand because the enhancement was based upon the same act used to support an attempted murder charge; and (4) he was improperly sentenced.

    Concluding that the trial court properly admitted the statements that Campbell made to the police officers into evidence because he was not in custody when the statements were made, we find no error with respect to this issue. We also conclude that the evidence was sufficient to support Campbell’s convictions, but find that convictions for both attempted murder and burglary as a class A felony violate double jeopardy principles. Finally, we conclude that the sentence imposed on the offenses was not inappropriate. Thus, we affirm in part, reverse in part, and remand this cause with instructions that the trial court: (1) vacate the conviction for class A felony burglary; (2) enter judgment as a class B felony burglary; and (3) resentence Campbell on the class B felony burglary.
    KIRSCH, C.J., concurs.
    ROBB, J., concurs with opinion.
    I concur, but write separately to emphasize that our holding with respect to the Miranda issue is specific to the unique facts of this case. * * * I caution only that our holding should not be construed as a general extension of the traditional definition of “custody” and a corresponding limitation on the situations in which Miranda warnings must be given. In a standard traffic stop or other investigative situation, the long-standing rules still apply.

    Area Plan Commission of Evansville - Vanderburgh County v. Robert Hatfield (1/14/05 IndCtApp) [Real Property; Standing]
    Kirsch, Judge
    The Area Plan Commission of Evansville – Vanderburgh County (the “APC”) appeals a decision of the trial court entering judgment in favor of both Highland Pointe Development, LLC and Robert F. Hatfield, Bruce Hatfield, Jill Hayden, Paul Hayden, and Ray Zeller. The sole issue for our review is whether the trial court erred in permitting Robert F. Hatfield, Bruce Hatfield, Jill Hayden, Paul Hayden, and Ray Zeller to challenge the decision of the APC pursuant to IC 36-7-4-1003(a). We affirm. * * *

    The APC asserts that the trial court erred in ruling in favor of the Individual Members because they lacked standing to challenge the initial decision of the APC. Specifically, the APC argues that the Individual Members lacked a sufficient interest in the proposed plat to make them “aggrieved persons” for the purposes of challenging an APC decision. See IC 36-7-4-1003(a). The APC does not challenge the standing of the LLC, however.

    Once a contract for the sale of land is executed, even before a closing, equitable title vests with the prospective vendee. Ridenour v. France, 442 N.E.2d 716, 717 (Ind. Ct. App. 1982). As holder of equitable title, the prospective owner is considered to have property rights sufficient to grant standing in other areas of Indiana law. For instance, under IC 36-7-11.3-5, an equitable owner is considered to be an “interested party” for purposes of challenging a decision of a municipal plan commission. Likewise, we hold that an equitable owner of the property at issue has standing to petition for review of a decision by an area plan commission. The Individual Members, through their equitable interest in the property, have a personal stake in the outcome of the APC’s decision on the plat application and would further suffer a direct injury as a result of the APC’s action. Thus, granting status to the Individual Members as persons aggrieved also satisfies the purposes of the standing requirement. Therefore, we hold that the Individual Members, as signatories to a binding purchase agreement for the property to be developed, were aggrieved persons for the purpose of challenging the denial of a plat application by the APC. Affirmed.

    BAKER, J., and ROBB, J., concur.

    Michael G. LaRose v. State of Indiana (1/14/05 IndCtApp) [Criminal Law & Procedure]
    MATHIAS, Judge

    Michael LaRose’s (“LaRose”) Motion to Dismiss was denied in Hamilton Superior Court. LaRose brings this interlocutory appeal, raising the following restated issue for review: Whether Indiana Code section 35-42-4-6 is unconstitutional. Concluding that Indiana Code section 35-42-4-6 is constitutional, we affirm. * * *

    Indiana Code section 35-42-4-6’s prohibited conduct is distinguishable from Hess’ proposed future crime of taking the street. LaRose’s alleged act of soliciting a person whom he allegedly believed was thirteen actually constituted the crime. As such, LaRose’s alleged crime was not only imminent but consummated.

    Conclusion. Indiana Code section 35-42-4-6 is constitutional, and the trial court did not err in denying LaRose’s Motion to Dismiss. Affirmed.

    DARDEN, J. and FRIEDLANDER, J., concur.

    Darius Bowles v. State of Indiana (1/14/05 IndCtApp) [Criminal Law & Procedure]
    Mathias, Judge
    Darius Bowles (“Bowles”) is charged with Class A felony dealing in cocaine, Class C felony possession of cocaine, Class C felony possession of cocaine and a firearm, Class D felony possession of a controlled substance, and Class A misdemeanor possession of marijuana in Marion Superior Court. He filed motions to suppress all evidence seized as a result of a search of his trash, and the subsequent search of his residence. The trial court denied his motions and he has filed this interlocutory appeal raising three issues, which we reorder and restate as: Whether Bowles’ trash was searched and seized in violation of Article One, Section Eleven of the Indiana Constitution; Whether the search warrant for Bowles’ residence is invalid because the police officer failed to file a probable cause affidavit with the magistrate before the search warrant issued; and Whether the items found in Bowles’ trash were sufficient to establish probable cause to issue a search warrant of his residence.

    Concluding that the search and seizure of Bowles’ trash was constitutional, and that the search warrant was valid and supported by probable cause, we affirm. * * *

    Conclusion. The trial court properly denied Bowles’ motion to suppress. The search and seizure of Bowles’ trash did not violate his rights under Article One, Section Eleven of the Indiana Constitution. Moreover, the search warrant was valid and supported by probable cause. Affirmed.

    DARDEN, J., and FRIEDLANDER, J., concur.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - 7th Circuit posts two today

    Schmidt, Robert E. v. Barnhart, Jo Anne (WD Wis.)

    Before COFFEY, WILLIAMS, and SYKES, Circuit Judges. SYKES, Circuit Judge. Appellant Robert Schmidt suffers from an anxiety disorder, irritable bowel syndrom (IBS), and pain in his back and shoulder. In 1999 Schmidt applied for Social Security Disability Insurance benefits and Supplemental Security Income. Following a hearing before an Administrative Law Judge (ALJ), Schmidt’s application for benefits was denied on the grounds that he possessed the residual functional capacity to perform his past relevant work as either a group home manager or a data entry clerk. The denial of benefits was subsequently upheld by both the Social Security Appeals Council and the district court.

    In this appeal Schmidt contends that he was denied the opportunity to be represented by counsel before the Appeals Council, that he was denied the opportunity to present evidence to the Appeals Council, that the ALJ’s decision was not supported by substantial evidence, and that new evidence, unheard by the ALJ, requires remand for a new hearing. We find no merit to any of Schmidt’s requested grounds for relief and affirm the decision of the district court.

    Moreland, Estate C. v. Dieter, Erich (ND Ind., Allen Sharp, Judge)
    Before ROVNER, WOOD and SYKES, Circuit Judges. SYKES, Circuit Judge. This is an action under 42 U.S.C. § 1983 for deprivation of civil rights arising out of the death of an inmate in the St. Joseph County, Indiana jail. Defendants Erich Dieter and Michael Sawdon, former St. Joseph County sheriff’s deputies, were found liable for violating Christopher Moreland’s civil rights by wrongfully causing his death by the use of unnecessary and excessive force. The jury awarded substantial damages: $29 million in compensatory damages and $27.5 million in punitive damages ($15 million against Dieter and $12.5 million against Sawdon). On appeal Dieter and Sawdon assert evidentiary and instructional errors and also challenge the punitive damages as unconstitutionally excessive. The plaintiffs crossappeal the district court’s order granting summary judgment to Joseph Speybroeck, the sheriff of St. Joseph County. They contend the evidence was sufficient to raise a jury issue about official policy or custom in the jail for purposes of § 1983 liability against the sheriff. We affirm the judgment against Dieter and Sawdon as well as the summary judgment in favor of Sheriff Speybroeck. * * *

    III. Conclusion
    We conclude that the district court did not abuse its discretion under Rule 403 by admitting the videotaped interviews of the defendants and excluding evidence that the defendants were acquitted of criminal charges; also, the court’s limiting instruction regarding this evidence was not inappropriate in any way. The defendants’ Daubert challenge to Dr. Lustgarten’s testimony was forfeited. The punitive damages awards against Dieter and Sawdon are not unconstitutionally excessive. We also conclude that summary judgment dismissing the plaintiffs’ claim against Sheriff Speybroeck was appropriate. We affirm the judgment against Dieter and Sawdon and the summary judgment in favor of Speybroeck.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Ind. (7th Cir.) Decisions

    Env't - More on blue bag dump site, and other stories

    The Chicago Tribune has a follow-up story today to its story yesterday (scroll down) on the disposal of Chicago waste on a farm in NW Indiana. Some quotes:

    The operator of Chicago's recycling centers scrambled Thursday to find a place to put the truckloads of waste that are a daily byproduct of the controversial blue bag program.

    Officials from Allied Waste Transportation Inc. huddled with Streets and Sanitation Commissioner Al Sanchez after learning that Allied must stop dumping so-called screened yard waste from Chicago at a 1,100-acre farm near Lowell, in northwest Indiana.

    Lake County, Ind., officials said Wednesday they ordered Back 2 Basics to shut down unless it gets a zoning change allowing it to dump the yard waste, kitchen scraps, glass shards and other fragments of garbage on its property about 30 miles south of Gary.

    Allied Waste did not send any material Thursday to the farm owned by Nathan Sanko, said Kevin Finn, the company's district manager. For the near future, Allied will ship the waste to its landfills in Indiana. The material will be used to cover each day's load of garbage or to shape the landfills. * * *

    "This screened yard waste is a complete and total joke," said Ald. Joe Moore (49th). "We've been claiming for a long time that this [stuff] that they pour on the farmland is highly suspect."

    In the late 1990s, city contractors began trucking the screened waste to Indiana because Illinois officials insisted it was garbage that belongs in a landfill.

    The executive director of Lake County's Plan Commission sent a letter Wednesday ordering Sanko to cease operations. It usually takes three months to get final approval for a zoning change from the County Council.

    Linda Cosgrove, an environmental activist who lives near Back 2 Basics, lauded the county for stopping the flow of screened waste from Chicago. She said she is concerned about the concentration of heavy metals, including lead, in the material.

    "Everybody down here is on groundwater," Cosgrove said. "I really wish they weren't doing it here."

    Indiana environmental officials have said that the operation does not pose a public safety risk.

    "County shuts Lowell-area business recycling waste from Chicago" is the headline to this story today in the Gary Post Tribune. Some quotes:
    Lake County officials claim they had no knowledge a local man was using solid waste from Chicago as fertilizer on his farm field near Lowell. Officials now have ordered the man to cease and desist operations after a Chicago newspaper contacted them with questions about the organization.

    The Post-Tribune reported in 2002 that Lowell-area residents were upset at odors being emitted because Nathan Sanko was using what he called “green dirt” as fertilizer on his farm fields in Eagle Creek Township.

    A recent report found Sanko’s green dirt is what industry insiders call “screen waste” that is being hauled in from Chicago.

    According to Bruce Palim, deputy assistant commissioner for the Indiana Department of Environmental Management’s Office of Land Quality, Sanko’s company is the first of its kind to operate in Indiana. IDEM issued a land application permit to him in 2000 to use the waste on crops. * * *

    Palim said IDEM monitored the procedure closely when Sanko initially applied for the permit allowing him to use the waste on his farm land. A pilot program was in place for about a year, and Sanko had to show IDEM the benefits of using the waste on the crops.

    Palim said the pilot program consisted of three plots of land. One contained no fertilization, one contained the screen waste and the third contained a commercial fertilizer. Gauging by the bushels of corn produced per acre on the screen-waste land compared to the others, Palim said Sanko proved to IDEM the material’s benefit to the soil. However, no independent tests were conducted on the soil quality, and Palim said he wasn’t aware of tests conducted on the quality of the crops.

    After the pilot program, IDEM gave final approval for the land application permit through 2006, and apparently Sanko didn’t know he needed a special Conditional Development District zoning from the county. IDEM does not require proof of proper zoning when issuing land application permits. * * *

    Palin acknowledged there have been problems with the product Sanko was hauling into Indiana. In the beginning, he said, there were issues with improperly maintained screens at the Illinois plant that were allowing larger pieces of waste to enter the mix. In 2002, in a sample of the waste Sanko is required to send to IDEM monthly, high levels of lead were found.

    “It was brought to his attention and we haven’t had an occurrence since then,” Palim said. All of the monitoring of the process is done on the honor system. IDEM doesn’t send field advisers to the site, Sanko just sends samples of the product on his own. Now, because of the recent media inquiries, Palim said he would send a field investigator to the site, although he didn’t know when this investigation would occur.

    Another NW Indiana waste story today concerns the Feddeler landfill. The story from the Munster Times begins:
    LOWELL | Allied Waste dangled a $2.5 million carrot in front of about 50 residents Thursday night in exchange for cooperating with its bid to add 80 acres to its Lake County C&D Landfill just west of Lowell.

    Residents, mostly landowners in West Creek Township where the landfill sits, wondered if the $2.5 million, which Allied offered to put toward cleanup of the former Feddeler landfill, was enough to take care of the contaminated site.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Environment

    Ind. Law - Debate brewing in Indiana over human cloning

    "Debate brewing in Indiana over human cloning" is the headline to a lengthy front-page Indianapolis Star article today by Robert King, the Star's religion editor. Some quotes:

    As a nurse, state Sen. Pat Miller knows the promise biotechnology offers to medicine. But she says certain areas of research raise too many moral questions. That's why she's pushing a bill to ban human cloning in Indiana. * * *

    [President] Bush shut off the spigot on federal funding for new embryonic stem cell research. But, in November, stem cell proponents took their case to California voters, who approved $3 billion in state research funding. * * *

    California's stem cell cash bonanza has set the stage for what some are likening to a new gold rush. Some worry that leading scientists might follow the money. And some states are considering whether to follow California's lead, for fear they might suffer a brain drain. * * *

    State Sen. Miller isn't sure whether human-cloning research is going on in Indiana. But the consequences are so potentially disastrous that the General Assembly must act, she said.

    "If you clone a human being, and they have an artificial aging process so that by the time a child is a year old they have the body and age of an 80-year-old, there is a number of issues that are ethical and moral there," Miller said.

    State Rep. David Orentlicher, an Indianapolis Democrat and an Indiana University bioethicist, said lawmakers are right to step in when there are clear ethical problems. But he sees plenty of gray areas that require a more measured approach. * * *

    He worries that limits could hurt Indiana's attempts to promote itself as a haven for biomedical research. But Miller said her cloning bill would not hurt research that offers Indiana both economic benefits and a clear conscience -- preventive medicine now that could help the state avoid thornier problems later.

    "If we wait for things to evolve," she said, "there can be a great deal of damage."

    Information on Senator Miller's bill, SB 268, is available here. The digest of the introduced bill reads:
    Synopsis: Cloning. Declares that human cloning is against public policy. Prohibits the state, a state educational institution, or a political subdivision of the state from using resources to knowingly participate in human cloning activities. Requires the state department of health to revoke the license of a hospital that knowingly allows human cloning activities. Requires the medical licensing board to revoke the license of a physician who knowingly participates in human cloning. Makes: (1) the unlawful participation in; (2) the implantation of or the attempt to implant the product of; and (3) the shipment or receipt of the product of; human cloning a Class D felony. Makes the purchase or sale of a human ovum, zygote, embryo, or fetus a Class C felony.
    Here are some of the definitions used in the introduced version of SB 268:
    "Human embryo" means a human egg cell with a full genetic composition capable of differentiating and maturing into a complete human being.

    "Cloning" means the use of asexual reproduction to create or grow a human embryo from a single cell or cells of a genetically identical human.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Indiana Law

    Ind. Decisions - Councilmen regain seats: Judge says ouster of convicted officials relied on wrong statute

    "Councilmen regain seats: Judge says ouster of convicted officials relied on wrong statute" is the headline to this story today in the Munster Times. Some quotes:

    EAST CHICAGO | Joe De La Cruz and Frank Kollintzas on Thursday won their East Chicago Common Council seats back despite their recent felony convictions in federal court.

    Lake County Democratic Central Committee Chairman Stephen "Bob" Stiglich had attempted to remove the men from the council, citing a state law he said made them ineligible to serve. * * *

    But in answer to arguments made the day before, Lake Superior Court Judge Diane Kavadias Schneider on Thursday morning ruled the law that Stiglich cited was not the correct statute.

    Attorney James Wieser and Nathaniel Ruff, representing Stiglich and the Democratic Central Committee, were basing the men's removal from the council on a state law that disqualifies a candidate for public office or "public officer" from holding office if convicted of a felony.

    Attorney Michael Bosch, on behalf of De La Cruz and Kollintzas, argued that a different state law disqualifies the holder of an elected office only upon sentencing, not at the time of conviction.

    In her opinion, Kavadias Schneider wrote: "The legislative intent was to differentiate between a person who is a convicted felon prior to become a candidate for elected office or assuming office and a person who becomes a convicted felon during his term of office."

    I'd love to be able to post a copy of this opinion, rather than just relying on a news story -- please contact me if you can help.

    Some of you may remember an April 11, 2003 post titled "Dealing with Election of Candidates Ineligible for Office." It begins:

    In decisions yesterday, the Madison County Superior Court decided what happens when individuals, who are not statutorily eligible to hold elective office because of past felony convictions, are in fact elected to office and are then challenged by the losing candidates.
    Also of interest is this March 12, 2004 ILB entry summarizing a Court of Appeals decision (2nd case) in the same Madison County Council election. A quote from the Court's decision in Franklin E. Patterson v. Daniel W. Dykes (3/12/04 IndCtApp):
    At the outset, we note that we have not previously had the opportunity to consider the effect of a Pardon on the eligibility of a candidate for public office, when the Pardon is granted subsequent to the election. * * *

    Relevant portions of Indiana Code section 3-8-1-5(b) provide: “[a] person is disqualified from holding or being a candidate for an elected office if the person has been convicted of a felony.” The record shows that, in 1974, Patterson was convicted of theft, a Class D felony. Thus, pursuant to I.C. § 3-8-1-5(b), he was disqualified from being a candidate for the Madison County Council seat. Nevertheless, Patterson ran for the office and won by a majority of votes. However, as a convicted felon, he is disqualified from holding the office.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Ind. Trial Ct. Decisions

    Ind. Decisions - Even more on yesterday's Indiana Supreme Court tax rulings

    Several stories today from the NW Indiana papers on the Supreme Court's tax rulings yesterday. The Gary Post Tribune's story is headlined "County wins tax ruling, but MCC group loses." Some quotes:

    A citizens crusade to undo the countywide property reassessment was rejected Thursday by the state Supreme Court. The court also ruled in favor of Lake County in its tax fights with BP and U.S. Steel, in rulings local officials hailed as major victories for taxpayers.

    In one of four rulings related to Lake County property tax disputes, the court found Lake Superior Court Judge Robert Pete did not have jurisdiction to hear the Miller Citizens Corp.’s challenge to the 2002 reassessment. The court ordered Pete to dismiss the complaint. * * *

    In the BP and U.S. Steel findings, the court ruled the industries had failed to follow proper procedure in filing appeals of personal property assessments at the companies in the mid-1990s. The county could have owed BP as much as $80 million if the court found in favor of the oil refinery.

    U.S. Steel was seeking $15 million in back taxes, contending local tax officials had illegally lowered the taxes of other property in the district from 1994 to 1996, driving the company’s taxes up. U.S. Steel would not have been eligible to collect its money in the event of a victory, however, as the company agreed to drop the appeal as part of a tax settlement in which the county was paid $53 million.

    The court found the 2001 statute that mandated the state Department of Local Government Finance to hire a private firm to reassess 250,000 parcels in Lake County was unconstitutional special legislation. But the majority decision said the state General Assembly fixed the problem in 2004, by passing a “curative” statute allowing the DLGF to take similar steps in other counties.

    “(I)n 2004 the General Assembly passed a statute authorizing the assessment conducted pursuant to the 2001 legislation,” Justice Theodore R. Boehm writes in the decision.“This 'curative’ legislation validated the acts taken under the unconstitutional special legislation.”

    [Note: Those following the Court's position on special legislation issues may want to read these last two paragraphs again.]

    The Munster Times today has two stories on the decisions. This story on the Miller Citizen Corp. decision reports:

    The Indiana Supreme Court failed to rescue homeowners who sought respite from steep property taxes with a lawsuit last spring. The state's high court on Thursday threw out the Miller Citizens Corp.'s claim that state legislators and officials unlawfully required an outside firm and the state Department of Local Government Finance to reassess Lake County's property in 2002.

    In its 34-page decision, the Supreme Court ruled the county judge who temporarily stopped tax bills from going out in May had no jurisdiction to hear the case. In a split decision, the justices ordered Lake Superior Court Judge Robert Pete to dismiss the residents' lawsuit. * * *

    The five justices agreed the 2001 laws requiring an outside firm and the Department of Local Government Finance to conduct the reassessment violated the state constitution's ban on special, or region-specific legislation. They said the General Assembly passed "curative" legislation in 2004 that "validated the acts taken under the unconstitutional special legislation."

    In his sole dissent, Justice Robert Rucker said the new legislation was hardly a cure for an old problem. "It is small comfort to these homeowners for the Court to declare in one breath that the challenged statutes constitute unconstitutional special legislation, a proposition with which I agree, and in the next breath declare the functional equivalent of ‘so what,'" Rucker wrote.

    Re the U.S. Steel and BP cases, the Times reports:
    Property taxpayers in Lake County dodged a $95-million bullet Thursday, after the Indiana Supreme Court rejected two long-standing tax claims by U.S. Steel Corp. and BP's Whiting refinery. U.S. Steel and BP sought $15 million and $80 million, respectively, in tax refunds, county attorney John Dull said.

    "This really is a grand slam for us. It really does seem like we are on a roll," Lake County Assessor Paul Karras said. "We have a lot of work to do with our industrial appeals, but this is a big, big plus."

    The court's 5-0 rulings do not jeopardize U.S. Steel's $53 million tax settlement with Lake County. * * *

    Both corporations had argued that township assessors in the mid-1990s failed to count hundreds of millions in assessed value in Calumet and North townships. They alleged low assessments elsewhere resulted in unfairly high tax bills at U.S. Steel and BP. U.S. Steel attorneys asked for a refund of the property taxes they believed were illegally imposed and overpaid from 1994 to 1996. BP wanted a refund from taxes paid from 1995 to 1998.

    Posted by Marcia Oddi on Friday, January 14, 2005
    Posted to Ind. Sup.Ct. Decisions

    Thursday, January 13, 2005

    Ind. Decisions - More on today's Indiana Supreme Court tax rulings

    The Indianapolis Star this evening has a story shedding light on the four tax rulings today (two entries down) by the Indiana Supreme Court. The big one is the last case on the list, the decision by Justice Boehm. Mike Smith writes for the AP:

    The Indiana Supreme Court today rejected claims by a group of Lake County homeowners that lawmakers and the state acted unlawfully by requiring an outside firm to assess residential property in the county.

    The justices overturned a Lake County judge's ruling last May that declared the special reassessment in the state's second-most populous county unconstitutional because it resulted from a special law that applied to only one area of the state. Many homeowners in Lake County, including those who filed the lawsuit, were hit with huge tax increases after the reassessment.

    The state's high court said Lake Superior Court Judge Robert Pete had no jurisdiction to consider the case. And even if the plaintiffs seek relief through administrative channels and the Indiana Tax Court, "we think it is clear" they would fail to get the tax bills negated, the ruling said.

    As for the other three cases decided today, the story notes:
    In a separate decision[s] today, the high court ruled that some industrial companies in Lake County had failed to meet time and procedural requirements to contest past property tax assessments.

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Ind. Sup.Ct. Decisions

    Ind. Gov't - Dueling editorials today in the Fort Wayne papers

    The Fort Wayne New Sentinel writes in an editorial today:

    If anyone had doubts that improving the state’s business climate would be one of Gov. Daniels’ top priorities, his swift action in cleaning house at the Indiana Department of Environmental Management should remove them. Six administrators were allowed to resign, and one who refused to do so was fired.

    Certainly it is true that economic development and the quality of the environment must be balanced. But if there are too many cumbersome regulations in IDEM and too little speed and consistency in the permitting process, the pendulum has swung too far in one direction. As Daniels put it: “A poor Indiana will not be a green Indiana.”

    The tricky thing for Daniels’ team is that pendulums don’t always immediately settle back in the middle – if they’ve gone too far one way, sometimes they first swing too much the other way. Improving the business climate but retaining a commitment to public health and the quality of the environment – that will be the big challenge.

    Meanwhile, from the Fort Wayne Journal Gazette:
    Also troubling is the house-cleaning at the Indiana Department of Environmental Management, where seven top administrators were removed this week. It’s understandable that the governor would want to appoint his own commissioner, but an agency that handles issues as vital as public health and as technical as environmental protection demands some consistency in management. The administrators’ sudden departure costs the state the expertise of officials knowledgeable of the department’s current operations. * * *

    The house-cleaning at IDEM, along with a request for the members of all state boards and commissions to resign, indicates the new governor finds no value in institutional knowledge or experience. His four-year term gives Daniels plenty of time to put his own team in place, without putting at risk the delivery of state services that Hoosiers depend on.

    The governor apparently intends to run the state more like a business. That’s fine, as long as he slows down a bit to listen to the customers – the ones who put him in office.

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Indiana Government

    Ind. Decisions - Supreme Court issues four tax decisions today

    Dept. of Local Gov't. Finance v. Commonwealth Edison Co. of Ind., Inc. (1/13/05 IndSCt) [Taxation]
    Sullivan, Justice

    An electric utility requested that State property tax authorities provide it with property tax relief with respect to certain of its property in Lake County on grounds that residential property owners in the County paid less than Indiana property tax law required. As evidence, the utility relied on studies that showed that the assessed valuation of residential property in the County was well below its fair market value. Indiana property tax law in effect at the time—now significantly reformed—provided that property was to be assessed based on its “true tax value,” a basis unrelated to its fair market value. Because the studies offered by the utility in support of its requests were based on fair market value, not the statutory standard of true tax value, the State properly denied the requests.

    Background. Over the past decade, the Indiana property tax system has been overhauled as a consequence of a series of judicial, legislative, and administrative decisions. Prior to this upheaval, property was not assessed on the basis of its fair market value (“FMV”) but according to a standard the Legislature called “true tax value” (“TTV”). True tax value, to repeat, was not FMV but rather the value of property determined under regulations promulgated by the State Board of Tax Commissioners (“State Board”). See footnote The new r egime purports to assess property based on its FMV.

    This case arises under the old order. It requires us to examine the extent to which the FMV of property was relevant to determining assessed valuation in the TTV world. * * *

    Conclusion. We affirm in part and reverse in part the decision of the Tax Court. The State Board properly dismissed Commonwealth’s petitions.

    Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

    Lake County Property Tax Assessment Bd. of Appeals v. BP Amoco Corp. (1/13/05 IndSCt) [Taxation]
    Sullivan, Justice
    In May 1999, an industrial concern filed property tax appeals claiming that the taxes on its Lake County personal property covering the five-year period from 1995 through 1999 were “illegal as a matter of law.” The taxpayer’s specific claim was that the county had “systematically underassessed property in Lake County to [its] detriment.” Indiana law in effect at the time permitted challenges to assessments on this basis but required them to be made only to the current year’s assessment, not prior years’. As such, the local and state property tax authorities correctly dismissed the appeals covering 1995 through 1998. * * *

    The decision of the Indiana Tax Court in this case is reversed. The decisions of the property tax authorities dismissing BP Amoco’s appeals on Form 133 are affirmed.

    Shepard, C.J., and Dickson and Boehm, J.J., concur. Rucker, J., concurs in result.

    Lake County Property Tax Assessment Bd. of Appeals v. U.S. Steel Corp. (1/13/05 IndSCt) [Taxation]
    Sullivan, Justice

    The amount of property taxes payable for an individual piece of property is set by allocating the total dollar amount anticipated to be required to meet the revenue needs of the taxing district among all pieces of property in proportion to their assessed valuations. As such, the amount of property taxes payable for an individual piece of property will be a function of three major variables: (1) the assessed valuation of the individual piece of property; (2) the total dollar amount of revenue to be raised; and (3) the total assessed valuation of all the pieces of property in the taxing jurisdiction.

    The taxpayer here, United States Steel Corporation (“USS”), came to the view that local property tax officials had illegally reduced the aggregate assessed valuation of the property in the taxing jurisdiction during the “assessment years” 1994, 1995, and 1996. If so, USS’s property taxes for those years would have been too high. On May 5, 1998, USS filed papers (using forms denominated “Form 133, Petition for Correction of Error” and “Form 17T, Petition for Refund”) seeking refunds of the property taxes it contended had been illegally imposed and overpaid for the 1994-1996 period.

    USS’s challenges were first denied by the Lake County Board of Review and then by the Indiana Board of Tax Review. USS then sought judicial review in the Indiana Tax Court. The Tax Court concluded that “[t]he only question is whether Lake County’s removal of assessed valuation from its tax rolls (and, hence, the resulting tax rate) was, as a matter of law, illegal—a question that falls squarely within the ambit of the 133 Petition.” U.S. Steel Corp. v. Lake County Prop. Tax Assessment Bd. of Appeals, 785 N.E.2d 1209, 1216 (Ind. Tax Ct. 2003). The local and state property tax authorities sought, and we granted, review of the Tax Court’s decision. Lake Co. Prop. Tax Assessment Bd. of Appeals v. United States Steel Corp., 804 N.E.2d 749 (Ind. 2003). * * *

    Although USS presents a more sympathetic case than the taxpayer in BP Amoco, we reach the same result. [IC] 6-1.1-15-12(a)(6) and [IAC] Title 50, Regulation 4.2-3-12 authorize the use of Form 133 to obtain adjustments to assessments and property tax refunds where the taxes, as a matter of law, have been determined to be illegal. BP Amoco, slip op. at 8-9. But they are not available “to challenge the methodology used in generating an assessment.” We conclude that the legislative and regulatory scheme required USS to set forth in its contentions that local property tax officials had illegally reduced the aggregate assessed valuation in the relevant jurisdiction on Form 130, subject to the time limitations and other requirements of [IC] 6-1.1-15-1 and [IAC] Title 50 Section 4.2-3-4. Because USS did not do so, no timely determination was made that its taxes were illegal as a matter of law and relief under [IC] Section 6-1.1-15-12 and [IAC] Title 50 Sections 4.2-3-4, 12 and 14 on Form 133 was not available. The State Board of Tax Commissioners properly dismissed USS’s petitions.

    Conclusion. The decision of the Tax Court in this case is affirmed in part and reversed in part. The decision of the State Board of Tax Commissioners dismissing USS’s appeals on Form 133 is affirmed.

    Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., concurs in result.

    State of Indiana Ex Rel the Attorney General of the State of Indiana v. The Lake Superior Court and the Hon. Robert Pete, as Judge thereof and Governor of the State of Indiana, et al v. Miller Citizens Corp., et al (1/13/05 IndSCt) [Taxation]
    Boehm, Justice

    In 2001, the General Assembly passed two statutes that applied only in Lake County and provided for countywide reassessment of property for tax purposes to be conducted by the Department of Local Government Finance and by private contractors selected by the DLGF. The plaintiffs are a group of taxpayers who brought an action in April 2004 in Lake Superior Court seeking a declaratory judgment that these statutes are unconstitutional. The bills for taxes due in 2003 had not yet been mailed due to delays in the reassessment process and the plaintiffs asked that the taxing authorities in that county be enjoined from mailing bills for the property taxes due in 2003.

    The trial court found the statutes to violate five separate provisions of the Indiana Constitution and granted the requested preliminary injunction. The Attorney General contended that exclusive jurisdiction over this case lies in the Tax Court and on that ground asked this Court for a writ of mandamus and prohibition. While that writ proceeding was pending, an appeal of the preliminary injunction was also initiated. This Court stayed the trial court’s preliminary injunction. As a result the taxing authorities were free to mail the bills for taxes due in 2003. We then ordered the writ proceeding and the appeal to be argued concurrently. This opinion addresses both.

    We hold that the Lake Superior Court had no jurisdiction to entertain these claims. We recognize that ordinarily lack of jurisdiction of the trial court would preclude deciding any other issues. However, this case presents a challenge to the entire assessment process in Indiana’s second most populous county. For the reasons explained below, we think it is clear that the plaintiffs will ultimately fail in their effort to enjoin the tax bills produced by the 2002 countywide reassessment. It is not in anyone’s interest to preserve false hopes by resolving this appeal on jurisdictional grounds alone. In short, there is broad public interest in a prompt resolution of this case, and the parties ask us to address the merits of the plaintiffs’ claims without regard to jurisdiction. For these reasons we do so without delaying a final resolution of this matter.

    We conclude that the statutes providing for private parties or the DLGF to assess certain assets in Lake County violate one of the provisions of the Indiana Constitution on which the plaintiffs rely, but not the other four. Although the 2001 laws violated Article IV, Section 22 of the Indiana Constitution as special legislation providing for the assessment of taxes, in 2004 the General Assembly passed a statute authorizing the assessment conducted pursuant to the 2001 legislation. This “curative” legislation validated the acts taken under the unconstitutional special legislation. Moreover, plaintiffs waited until reassessment was completed to seek injunctive relief. In the meantime, other taxpayers and local government units relied on the ongoing reassessment process provided by statute to supply funding for essential day-to-day functions of government. For that reason as well, plaintiffs’ claim for injunction was barred by the delay in seeking equitable relief. * * *

    Conclusion. The preliminary injunction entered by the trial court is vacated. This case is remanded with instructions to dismiss the complaint for lack of jurisdiction.

    Dickson, J. concurs. Shepard, C.J., and Sullivan J. concur in Part I with separate opinion by Sullivan, J. Rucker, J. concurs in Parts I, II, and IV, and dissents as to Part III with separate opinion. * * *

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Ind. Sup.Ct. Decisions

    Ind. Decisions - 7th Circuit posts two today

    Velez, David v. Johnson, Michael (ED Wis.)

    USA v. Cummings, Brenda (ND Ill.)

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Judge Barker's Decision in New Albany Video Store Dispute Now Available

    Updating our ILB entry from January 6th, headlined "Judge Barker issues decision in New Albany adult video store dispute" -- the judge's ruling in New Albany DVD v. City of New Albany has been posted by the court and is now available here.

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Ind Fed D.Ct. Decisions

    Ind. Gov't. - Gov. Daniels appoints three, one is a woman

    Here is the press release from the Governor's website today:

    INDIANAPOLIS (January 13, 2005) -- Governor Mitch Daniels today appointed a trusted judicial leader to serve as the executive director of the Indiana Gaming Commission and a marketing executive to lead the State Lottery Commission.

    Ernest Yelton of Brazil, a Clay County Circuit Court judge for more than 25 years, will lead the Indiana Gaming Commission, and Esther Schneider, executive director of the Senate Majority Campaign Committee, will become director of the State Lottery Commission. * * *

    Yelton has served as Clay County Circuit Court judge since 1979, following five years of private law practice. He was the president of the Indiana Judges Association and a member of the Indiana Judicial Conference board of directors from 1991 to 1993. He earned his law degree from Indiana University.

    "There are serious questions facing the Indiana Gaming Commission, and there will be more to come" said Yelton. "Governor Daniels and Hoosiers across the state are placing their trust in us to make the right decisions the first time around, and we will deliver nothing less."

    Schneider has more than 20 years of advertising and public relations experience, as well as a strong background in political and government affairs. She has worked in various capacities for advertising, broadcasting and media consulting companies. * * *

    Daniels also announced the appointment of David N. Shane as senior advisor to the governor for education and employment. He will be responsible for workforce development, higher education and K-12 education. Shane will be on a leave of absence as president and chief operating officer from LDI, Ltd., in Indianapolis. * * *

    Shane has served in multiple volunteer roles in higher and K-12 education over the last decade. He's been a member of the Indiana Education Roundtable and chair of the K-12 Subcommittee of the Government Efficiency Commission.

    Here is the Indianapolis Star report.

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Indiana Government

    Law - Car's Black Box Evidence Ruled Admissible in New York

    "Car's Black Box Evidence Ruled Admissible" is the headline to this story today in the NY Law Journal. Some quotes:

    Evidence gleaned from a car's "black box" -- a computer module that, among other things, records a vehicle's speed in the last five seconds before airbags deploy in a collision -- will be admissible in the New York trial of two men charged with second-degree murder.

    The defendants, Kyle Soukup and Blake Slade, were involved in a fatal three-car accident while in a race on a Nassau County, N.Y., highway on a night in June 2002, authorities say.

    The ruling in People v. Slade, No. 0666-2003, by acting Nassau County Supreme Court Justice Alan M. Honorof followed a hearing testing the science behind the evidence. The decision following the hearing is one of the first of its kind in New York state. * * *

    the black box, formally called a sensing diagnostic module, enables the prosecution to establish the Corvette's speed, engine revolutions, throttle position and use of the brakes for the critical moments before the impact.

    Police officers removed the sensing module from Soukup's wrecked car after it was in their possession but before they had a search warrant. They later applied for and obtained a warrant based upon witnesses' affidavits and information they had obtained before entering the vehicle.

    Soukup's lawyer, Litman, moved to suppress the black box and its data as the products of an unlawful search and seizure. He also challenged the scientific reliability of the data.

    The court held a so-called Frye hearing, derived from the 1923 ruling in Frye v. U.S., 293 F. 1013, by the U.S. Court of Appeals for the District of Columbia Circuit. Frye provides for a "general acceptance test" of expert testimony, Honorof noted. It dictates that scientific evidence is admissible only if the underlying methodology or scientific principle is sufficiently established to have gained general acceptance in its field. * * *

    Honorof ruled that the black box data were admissible, even though the police had obtained it before applying for a search warrant. Turning back Litman's argument that his client had a reasonable expectation of privacy in the car and its contents, the judge ruled that Soukup's operation of the vehicle on a public highway knowingly exposed his behavior to the public. Observed by at least three witnesses, his velocity was not a private matter, the judge said.

    He noted that the police searched not only the engine compartment containing the black box, but also the car's passenger compartment, in which Soukup may have had a reasonable privacy expectation. Nevertheless, the judge found that because the detectives obtained a warrant based not upon information obtained from the car, but from eyewitnesses and observations at the crash scene, the search was covered by the "independent source rule."

    That rule preserves the admissibility of otherwise tainted proof if it was "obtained independently from lawful activities untainted by the initial illegality," the judge wrote.

    This admissibility question may also come up soon in Indiana. From an AP story published Dec. 23, 2004 in the Indianapolis Star and a number of other papers:
    VALPARAISO, Ind. -- What a driver did immediately before his car and another collided was recorded on a "black box" in his vehicle and led to reckless homicide charges against him.

    Police said the information they obtained from the car's data recorder, similar to those used on airplanes, conflicted with what the driver told them. Information from the box was supported by witness statements.

    Sheryar Qamar, 20, of Michigan City, was charged Tuesday with reckless homicide, criminal recklessness with a vehicle, causing the death of another person while operating a motor vehicle, drunken driving, underage drinking and five other offenses.

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to General Law Related

    Env't - Indiana closes blue bag dump site

    "Indiana closes blue bag dump site: Firm lacks zoning approval for waste" is the headline to this story today in the Chicago Tribune - the story looks to be on the paper's front page. Here are some quotes from the story, written by Dan Mihalopoulos and Laurie Cohen:

    The northwest Indiana farm that receives nearly half of what is collected by Chicago's blue bag recycling program has been ordered to shut down, potentially creating a major backup in the city's trash flow.

    The order, which came in response to questions posed by the Tribune, shines a light on one of the hidden aspects of the blue bag program: Most of what officials now claim as recycled material is not paper, cans or bottles--it's yard waste and kitchen scraps mixed with plastic, glass and other trash.

    Illinois doesn't want the trash, so most of it is plowed into farm fields in Lake County, Ind. But officials there said Wednesday they have told Back 2 Basics to cease operations because the company failed to get zoning approval to dispose of the so-called screened yard waste on fields near Lowell, Ind.

    "This environmentally questionable" activity would require a zoning change, according to the letter from Ned Kovachevich, executive director of the county's Plan Commission. In an interview, Kovachevich said he fired off the letter to the company's president, Nathan Sanko, after the Tribune asked him about the 1,100-acre business 30 miles south of Gary. * * *

    In the decade since Daley introduced the blue bag program, the screened waste has spawned repeated environmental controversy. The waste was exiled from Illinois to Indiana, where environmental oversight is less stringent.

    Sanko then was chased from one Indiana community to the neighboring county after officials charged him in a lawsuit with running an "illegal landfill" in a remote farm field.

    At his current location near Lowell, Sanko has continued to be dogged by questions from Indiana environmental regulators. And on Wednesday it appeared that he failed to get Lake County's permission for what he has been doing since 1999.

    "You are conducting an illegal activity and you are hereby ordered to immediately cease and desist any such operation," officials told Sanko in the letter. It usually takes three months to obtain a final decision about a zoning change from Lake County, Kovachevich said.

    There is much more in this lengthy story.

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Environment

    Law - Weighing in on U.S. Supreme Court's rulings on Blakely application

    Several Indiana papers have local stories today weighing in on what the U.S. Supreme Court decisions yesterday in U.S. v. Booker and U.S. v. Fanfan on the application of the Court's opinion last year in Blakely v. Washington to the U.S. sentencing guidelines. (I confess I find the Court's decisions confusing and am not ready to venture opinions.)

    Here are some quotes from the Indianapolis Star story:

    In a 5-4 decision, Justice John Paul Stevens, writing for the majority, found that the federal guidelines ran afoul of the court's 2004 ruling that said the Sixth Amendment requires juries, not judges, to determine facts that can lengthen sentences.

    But rather than eliminate the guidelines or let lower courts work out how to apply the 2004 ruling within the guidelines, the court, in a separate 5-4 decision written by Justice Stephen Breyer, prescribed a sweeping fix of its own. The guidelines, it said, will be used in an "advisory" manner to help federal judges come up with "reasonable" sentences. The court said that solves the constitutional problems with the guidelines and preserves Congress' intent in adopting the rules.

    John D. Tinder, a U.S. District Court judge for the Southern District of Indiana, said the ruling give judges more discretion than they've had in 18 years. "In some respects this will be welcome," said Tinder, who cautioned that he had only browsed the ruling.

    But criminal justice experts said Wednesday that the rulings could also bring more confusion to the process. "The court, by fiat or constitutional interpretation, has now created a system of advisory guidelines, so what we have now is essentially unconstrained judicial sentencing," said Frank Bowman, an Indiana University law professor and a former federal prosecutor.

    Bowman noted that many federal judges have complained that the guidelines left them too little flexibility in determining sentences, and Wednesday's ruling might seem to be what they wanted. "But I think they'll come to regret what has happened here, because it's something that's far more likely to provoke a response from the Department of Justice and Congress that they'll find unpleasant." It's unclear, Bowman and others said, whether Wednesday's rulings offer most of the 170,000 current federal inmates a chance to appeal their sentences. Most agree that nearly all inmates are likely to think they have appeals, inspiring thousands to file.

    The Fort Wayne Journal Gazette has a story here. The Munster Times has two stories, this one quoting Porter Superior Court Judge Roger Bradford, and this one headlined "High court decision backed by some region attorneys."

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to General Law Related

    Ind. Decisions - More on Save the Valley Ruling

    More on the Save the Valley ruling today. "Court allows green groups to join suits: Madison case said to 'broaden' law" is the headline to Lesley Stedman Weidenbener's story today in the Louisville Courier Journal. Some quotes:

    INDIANAPOLIS — The Indiana Court of Appeals, in a case involving the Clifty Creek power plant near Madison, has opened the door for environmental groups to intervene in administrative and legal disputes on behalf of their members.

    The court's decision "broadens Indiana law" on who can and can't challenge state permits and other actions, said Linda Runkle, an attorney for the Indiana Department of Environmental Management. * * *

    At issue is whether Save the Valley, the Hoosier Environmental Council and the Citizens Action Coalition can appeal a Clifty Creek landfill permit issued by the Department of Environmental Management if they have members who are affected by the plant.

    The groups claim the plant's coal-ash landfill could be polluting the local aquifer, which supplies drinking water to Madison and Hanover. Indiana-Kentucky Electric Corp., which owns the plant, maintains that it is in compliance with all permits, rules and laws and that the landfill permit was properly issued, said its attorney, Tony Sullivan.

    Regardless, the company argued that the environmental groups could not appeal the permit decision in any event. Sullivan said the groups did not have standing in the case because state law only allows individuals to intervene in such decisions.

    A Marion County judge sided with the power plant in 2003, ruling essentially that the office buildings, property or employees of Save the Valley and the other groups must have been affected by the permit to have standing in the case.

    But the appeals court ruled this week that the groups do have standing under a 1977 U.S. Supreme Court decision. That decision, in a case from Washington state, created the doctrine of "associational standing" — a group's right to represent their members. About 20 states have since adopted the doctrine.

    In this week's ruling, the Court of Appeals said "we see no reason" why the doctrine shouldn't also apply in the Clifty Creek case. The court said that because the individual members appeared to have standing in their own right, the groups could represent them.

    Here is a copy of this week's decision, Save the Valley v. IKEC (1/11/05). The "Case from Washington state" referred to in the story above is cited on page 6 of the opinion. It is a U.S. Supreme Court decision, Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 344, 97 S. Ct. 2434, 2442 (1977), available here via Findlaw.com.

    Save the Valley was discussed in earlier Indiana Law Blog entries. An Oct. 31, 2003 entry is headed "Marion County Superior Court rules that Indiana law does not allow groups to challenge administrative agency decisions unless the groups are directly harmed." The entry includes a link to Marion County Superior Court Judge Michael Keele's ruling. See also this entry (2nd item) from November 4, 2003.

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Environment | Ind. App.Ct. Decisions

    Ind. Decisions - Save the Valley wins right to represent members

    "Save the Valley wins right to represent members " is the headline to this story today in the Madison Courier. Some quotes:

    The Indiana Court of Appeals ruled Tuesday that organizations like Save the Valley have the right to represent their members before governmental agencies. An appeal is planned.

    The Indiana-Kentucky Electric Corp. and the Indiana Department of Environmental Management had contended that Save the Valley, the Hoosier Environmental Council and the Citizens Action Coalition of Indiana had no legal right to challenge the state’s renewal of the Clifty Creek power plant’s permit for its coal-ash landfill.

    IKEC and IDEM contended that the organizations lacked “associational standing,” or the right to take action on behalf of members, and that Indiana law has no provision for such representation.

    “We are just as elated as could be about this,” said Bob Gray, chairman of the Save the Valley board of directors. “It has national implications, really.” * * *

    When the legal process began in 2002, Save the Valley was acting as an organization but did not specify the names of individual members it was representing. When Save the Valley’s position challenging the permit was objected to, it amended its complaint and listed individual members who live, work or participate in recreation in the area affected by the permit, and they contended they would be adversely affected by the landfill’s impact on groundwater and by dust from the landfill.

    But even then Save the Valley was challenged by IKEC and the state environmental agency, who maintained that Indiana law does not allow associations to represent members in actions such as administrative regulation. The three-judge appeals court disagreed that Hoosiers don’t have such a right, citing a federal court case.

    Tony Sullivan, one of the attorneys for IKEC, said Tuesday that the ruling will be appealed to the Indiana Supreme Court. Two of the main grounds for the appeal will be that the state appeals court’s opinion referred primarily to a federal court ruling and that the appeals court judges didn’t correctly apply an Indiana state law to the case, he said.

    The decision, Save the Valley, Inc., Hoosier Environ. Council, Inc., and Citizens Action Coalition of Indiana v. Indiana-Kentucky Electric Corp. and Indiana Dept. of Environ. Mgmt. (1/11/05 IndCtApp), is summarized in this ILB entry from yesterday (3rd case).

    Posted by Marcia Oddi on Thursday, January 13, 2005
    Posted to Environment | Ind. App.Ct. Decisions

    Wednesday, January 12, 2005

    Ind. Gov't. - Governor Daniels Makes His Executive Orders 1 through 18 Available Online

    Governor Daniel's Executive Orders now may be accessed here on his website. To make it easier to find what you want, I have indexed them below.

    05-01 - Creation of the office of secretary of commerce and coordination of the state’s economic development and job training efforts

    05-02 - Creation of the office of management and budget

    05-03 - Creation of the office of inspector general

    05-04 - Continuing the office of public finance

    05-05 - Establishment of the "buy indiana" presumption

    05-06 - Directive to account for all state assets and to divest of unused or underutilized assets

    05-07 - Directive to the department of administration to log written state contracts on the internet

    05-08 - Creation of the office of federal grants and procurement

    05-09 - Establishing and clarifying duties of state agencies for all matters relating to emergency management

    05-10 - Directive to establish medical error reporting and quality system

    05-11 - Recognition of private minority business enterprise certification

    05-12 - Establishing ethical rules of conduct for state officers, employees, and special appointees

    05-13 - Extending a utility service emergency in the state of indiana during severe weather

    05-14 - Providing a complaint procedure to state employees and rescinding certain prior executive orders

    05-15 - Creation of the indiana department of child services

    05-16 - Creation of the office of faith-based and community initiatives

    05-17 - Creation of the office of technology

    05-18 - Maintenance of salary and health coverage for active duty military personnel employed by state government

    Governor Kernan's Executive Orders. These technically are still available online, but can be located only with some effort. Why care? Here is an example. Daniels' 05-12, Ethical Rules for State Employees, references Kernan's EO 04-08, EO 4-10 and EO 04-11 and continues them in effect.

    The January 2005 Indiana Register index lists these 2004 EOs of Governor Kernan, plus their locations:

    • 04-8 Gift-giving to executive branch employees - 27 IR 2935
    • 04-9 Office of chief investigator - 27 IR 2936
    • 04-10 Senior-level executive branch employees leaving state government - 27 IR 2937
    • 04-11 Registration of executive branch lobbyists - 27 IR 2937
    • 04-12 Ethics education requirements - 27 IR 2938
    All of these EOs are in the June 2004 Indiana Register, which covers pages 2705-3056. Previously they were readily accessible via Governor Kernan's website.

    Posted by Marcia Oddi on Wednesday, January 12, 2005
    Posted to Indiana Government

    Ind. Decisions - Oral Arguments Scheduled

    The Supreme Court calendar shows only one more (two were heard on January 6th) oral argument this month, Jerry Grinstead v. State of Indiana, set for tomorrow, January 13, 2005 at 9:00 a.m. From the summary on the Court's site:

    Grinstead was convicted of Murder, Conspiracy to Commit Murder, Theft, and Conspiracy to Commit Theft, for which he received an aggregate sentence of 108 years. Grinstead’s convictions were affirmed on appeal by this Court. In 2003, Grinstead sought post conviction relief, which the post conviction court denied. He appealed that denial to the Court of Appeals, which reversed and remanded for retrial. The State Of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys for Appellant; Susan Carpenter and Linda Nicholson both of Indianapolis, IN. Attorney for Appellee; Justin Roebel, Indianapolis, IN.
    The Court of Appeals has two oral arguments scheduled this month. On January 19th at 10:00 a.m., Norfolk Southern Railway Co. vs. Estate of Robert G. Wagers. On January 27th at 10:00 a.m., Laura J. McIntosh vs. State of Indiana.

    Posted by Marcia Oddi on Wednesday, January 12, 2005
    Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

    Ind. Decisions - Two posted today by Court of Appeals, One by Tax Court

    Sean Strong v. State of Indiana (1/12/05 IndCtApp - On Rehearing) [Criminal Law & Procedure]
    Bailey, Judge
    We issued our opinion in this appeal on November 5, 2004. On December 6, 2004, the State filed a Petition for Rehearing arguing that we had erroneously held that Strong “did not waive his Blakely claim.” Appellee’s Pet. Reh’g at 1. We grant the State’s petition for rehearing for the limited purpose of clarifying this issue, and we affirm our original opinion. * * * [Read for details]

    For the foregoing reasons, we grant the State’s Petition for Rehearing for the sole purpose of clarifying the waiver issue. In all other respects, we affirm the Strong opinion. SHARPNACK, J., and MAY, J., concur.

    William A. McKinney v. Katherine J. McKinney (1/12/05 IndCtApp) [Family Law; Protective Order]
    Bailey, Judge

    Case Summary. Appellant-Respondent William A. McKinney (“Husband”) appeals the trial court’s issuance of a protective order against him and for the protection of Appellee-Petitioner Katherine J. McKinney (“Wife”). We affirm.

    Issue. On appeal, Husband raises two issues, which we consolidate and restate as whether his state, federal, and statutory procedural due process rights were violated when the trial court ordered him to forfeit the marital residence, which he and Wife jointly owned, without affording him the opportunity to present evidence and cross-examine witnesses. * * *

    The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The nature of process due in a given situation turns on the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State’s chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. The balancing of these factors recognizes that, although due process is not dependent upon the underlying facts of the particular case, it is nevertheless “flexible and calls for such procedural protections as the particular situation demands.” Id. at 334 (quotations omitted).

    In the case at bar, both the private interests and the countervailing governmental interests that are affected by the protective order proceeding are substantial. In particular, this action concerns the issuance of a protective order, which includes prohibiting a party from the marital residence, to prevent domestic abuse between a husband and a wife. As such, Husband’s interest in maintaining his property and Wife’s interest in remaining free from abuse are significant. Further, the State’s, i.e., court’s, interest in promoting the protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner, as well as preventing future domestic and family violence is likewise substantial.

    When balancing the competing interests of the parties and the State, noting that Wife’s interest is aligned with the State’s, we must also consider the risk of error created by the challenged procedure. See Mathews, 424 U.S. at 333. Here, the risk of error created by conducting a protective order hearing with the respondent and his counsel present is not substantial because he had the opportunity to present his position to the trial court through testimonial evidence at the hearing. In light of the State’s compelling interest, which is consistent with Wife’s interest, coupled with the fact that the challenged procedure did not create a substantial risk of error, Husband received the process that he was due under these circumstances. Accordingly, we find no error under the United States or Indiana Constitutions.

    For the foregoing reasons, we affirm the trial court’s issuance of the protective order in question. Affirmed. FRIEDLANDER, J., and DARDEN, J., concur.

    Wm. & Dorothy Long v. Wayne Twp. Assessor (1/12/05 IndTaxCt) [Property Assessment; Statutory Construction]
    Fisher, J.
    The Petitioners, William and Dorothy Long (the Longs), appeal from a final determination of the Indiana Board of Tax Review (Indiana Board) assessing their real property for the 2002 assessment. The matter is currently before the Court on the Wayne Township Assessor’s (Assessor) motion to dismiss. For the reasons stated below, the Court DENIES the Assessor’s motion. * * *

    When a rule of procedure and a statute conflict, the rule will govern. Ziegler v. Indiana Dep’t of State Revenue, 797 N.E.2d 881, 886 (Ind. Tax Ct. 2003) (citing Jackson v. City of Jeffersonville, 771 N.E.2d 703, 705 (Ind. Ct. App. 2002), trans. denied). Consequently, when a taxpayer appeals a final determination of the Indiana Board to this Court, the taxpayer is not subject to the provisions of Indiana Code § 4-21.5-5-13, but rather to the provisions of Indiana Tax Court Rule 3(E).

    The Longs have informed this Court that they requested the agency record from the Indiana Board on April 30, 2004, and that they received notice from the Indiana Board that the record was prepared on June 2, 2004. Pursuant to Indiana Tax Court Rule 3(E), the Longs had thirty days after receiving that notice to file the record with the Court. They filed the record on June 7, 2004 – well within the time frame prescribed by Tax Court Rule 3(E).

    CONCLUSION. For the above stated reasons, the Assessor’s motion to dismiss is DENIED. A separate opinion, in which the Court will decide the merits of the Longs’ appeal, is forthcoming. SO ORDERED this 12th day of January, 2005.

    Posted by Marcia Oddi on Wednesday, January 12, 2005
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - 7th Circuit Posts One Today

    U.S. v. Elmo Cash (SD Ind.,Larry J. McKinney, Chief Judge)

    Before FLAUM, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges. FLAUM, Chief Judge. Following a one-day trial, a jury convicted defendant-appellant Elmo Cash of one count of threatening a federal employee in violation of 18 U.S.C. §115. Cash was sentenced to thirty-seven months of imprisonment and three years of supervised release. He now appeals his conviction. For the reasons stated herein, we affirm.

    Posted by Marcia Oddi on Wednesday, January 12, 2005
    Posted to Ind. (7th Cir.) Decisions

    Law - The U.S. Supreme Court has just ruled in Booker and FanFan

    The long awaited decisions in US v. Booker (from our 7th Circuit) and US v. Fanfan have just been issued this morning by the Supreme Court. Apparently, the Court did not backtrack. For complete coverage, I direct you to the Sentencing Law and Policy Blog and to SCOTUSblog.com.

    Posted by Marcia Oddi on Wednesday, January 12, 2005
    Posted to General Law Related | Ind. (7th Cir.) Decisions

    Ind. Decisions - More on Yesterday's Supreme Court Ruling in Death Case

    "Court says killer waited too long to change mind: Fort Wayne man sentenced to death for '97 slayings missed review deadline after saying he wanted to be executed." That is the headline to this story today from the Indianapolis Star. The decision was Joseph E. Corcoran v. State of Indiana (1/11/05 IndSCt) - access the ILB entry here.

    Posted by Marcia Oddi on Wednesday, January 12, 2005
    Posted to Ind. Sup.Ct. Decisions

    Ind. Gov't. - New Governor Shakes Up IDEM

    A story today in the Evansville Courier&Press, headlined "Environmental administrator fired, six quit," reports:

    INDIANAPOLIS - One Indiana Department of Environmental Management administrator was fired and six others resigned this week in more moves by Gov. Mitch Daniels, who has criticized the agency for impeding economic development.

    Jim Mahern, pollution prevention and technical assistance deputy commissioner,was fired, said IDEM spokeswoman Amy Hartsock.

    Those resigning were longtime water division chief Tim Method; deputy commissioners Janet McCabe, from air quality, Felicia Robinson, legal affairs, Susan Murphy Moster, environmental operations, Cheryl Reed, public policy and planning, and ombudsman Greg Ellis.

    All seven were given an opportunity on Monday to resign in good standing, and all did, except Mahern, who was dismissed Tuesday, Hartsock said. No telephone listing was available in Indiana for Mahern to obtain a comment.

    The Indianapolis Star today has a similar story, titled "7 environmental officials leave in Daniels' shake-up." Some quotes:
    Daniels addressed agency employees Tuesday afternoon, making it clear that his -- and their -- top priority should be to help businesses create new jobs in Indiana. "Nowhere can a bigger difference be made more swiftly than by the people in this room," said Daniels, who has criticized the agency as being too slow and inconsistent in issuing permits to industries that pollute. He said environmental protection and public health are important, but "a poor Indiana will not be a green Indiana."

    Among those who left were longtime water division chief Tim Method, who for the past eight years had overseen most agency programs as deputy commissioner for environmental results, and Janet McCabe, deputy commissioner in the Office of Air Quality. Both were well-regarded by many in the environmental and business communities for their technical expertise and institutional knowledge.

    Others who left were Deputy Commissioners Felicia Robinson, legal affairs; Susan Murphy Moster, environmental operations; Cheryl Reed, public policy and planning; and Jim Mahern, pollution prevention and technical assistance; and ombudsman Greg Ellis.

    All were given an opportunity Monday to resign in good standing; all did, except Mahern, who was dismissed Tuesday, said Amy Hartsock, spokeswoman for the environmental agency.

    Bruce Palin, deputy assistant commissioner of the Office of Land Quality, was asked to stay.

    Lest we think Indiana is unique, here is a similar story from another state, also published today. This story is from Jefferson City, Missouri (STLtoday.com). Here are some quotes:
    JEFFERSON CITY - When James Werner, a top official in the state Department of Natural Resources, was summoned to the agency's acting director's office last Friday afternoon, he thought it had to do with an emergency permit to clean up lead contamination at a mobile home park.

    "I had no clue I might be caught up in the change in administration," said Werner, the director of the department's Air and Land Protection Division. But Werner, 47, was handed a letter signed by Ken McClure, the head of Gov.-elect Matt Blunt's transition team. It said that as of Monday, Werner was fired.

    Werner became one of eight high-ranking employees - including the acting director - fired in a single day with one day's notice at the Department of Natural Resources, the state agency responsible for enforcing environmental laws. Survivors at the department are calling the event the "Friday night massacre."

    Blunt's office has begun dispatching similar pink slips throughout state government. They have landed hardest at the Department of Natural Resources, an agency that has long been the bane of businesses and conservative Republicans in the Legislature. Of the 17 people listed as fired by the new Blunt administration on Tuesday, almost half were in the DNR.

    When a governor of one party succeeds a governor of the other, top personnel in policymaking positions are often replaced. But the way it was carried out at the Department of Natural Resources has some environmentalists wondering if it's the first step toward dismantling the agency. And some Democrats are saying the short-notice way Blunt, a Republican, carried out the dismissals was offensive.

    Posted by Marcia Oddi on Wednesday, January 12, 2005
    Posted to Environment | Indiana Government

    Tuesday, January 11, 2005

    Ind. Decisions - Three today from Court of Appeals

    J.R. v. State of Indiana (1/11/05 IndCtApp) [Juvenile Law]
    Hoffman, Senior Judge

    Respondent-Appellant J.R. appeals from the juvenile court�s true finding that he committed the delinquent act of receiving stolen property, a Class D felony if committed by an adult. Ind. Code �35-43-4-2(b). * * *

    The evidence that J.R. received stolen property is sufficient. * * * The juvenile court did not err in its determination that J.R. was a delinquent child for committing the act that would be receiving stolen property if committed by an adult because the evidence was sufficient. Affirmed.
    CRONE, J., concurs.

    BARNES, J., dissenting with separate opinion
    Although I recognize that my view in this matter is not shared by a number of my colleagues, I believe that the statute, Indiana Code Section 31-37-10-2, requires a juvenile court to make an affirmative finding that the filing of the petition is in the best interests of the child. I understand the utility of the arguments advanced by others in M.B. and this case. I simply do not agree that we can or should �waive� a statutory condition precedent to jurisdiction. It is, I might add, not solely a �form over substance� argument that drives my concern.

    I adhere to the reasoning espoused in K.S. v. State, 807 N.E.2d 769 (Ind. Ct. App. 2004), aff�d on rehearing, 816 N.E.2d 1164 (Ind. Ct. App. 2004), trans. pending. To the extent my colleagues in M.B. and this case have relied on opinions issued in civil matters outside of the juvenile delinquency context to conclude that the failure to approve the filing of a delinquency petition merely impacts jurisdiction over the case and is a waivable error, I believe it is inappropriate to do so. The cases that have specifically addressed juvenile delinquency petitions overwhelmingly indicate that express court approval for the filing of a delinquency petition is absolutely necessary and non-waivable. As an intermediate appellate court, I do not believe we are free to change the law in this area.

    I also observe that a juvenile court is a different animal than a superior or circuit court with criminal jurisdiction. It fashions remedies and resolutions that are not, and should not be, available to those other entities. The presiding judge may very well exercise his or her discretion upon the filing of a juvenile petition and divert the child into a more informal adjustment situation, believe that a CHINS petition is a more appropriate path to follow, or do any number of things that are outside the scope of a formal juvenile charge.

    I do not think it is either onerous or legally outrageous to require a presiding judge to review a juvenile petition and, in addition to the other statutory mandates, find that the filing of that petition is in the best interests of the child and to expressly note such finding on the record. I respectfully dissent and would reverse J.R.�s delinquency adjudication.

    Aberdeen Apartments, et al v. Cary Campbell Realty Alliance, Inc. (1/11/05 IndCtApp) [Trespass; Prior Restraint]
    Robb, Judge
    Aberdeen Apartments and ninety-five other apartment communities See footnote in Hamilton, Hancock, Hendricks, Johnson, Marion, and Shelby counties (collectively �the Apartments�), appeal the trial court�s denial of their motion for a preliminary injunction against Cary Campbell Realty Alliance, Inc. (�Campbell Realty�). We reverse and remand. * * *

    Campbell Realty is an Indiana corporation with its principal office in Hamilton County. It is a for-profit business that seeks to sell new homes to first-time home buyers. In order to find new buyers, Campbell Realty publishes the Renter�s Gazette. The Renter�s Gazette is a free publication that Campbell Realty has distributed to numerous apartment communities throughout central Indiana for the last two to three years. In City of Indianapolis v. Campbell, 792 N.E.2d 620, 626 (Ind. Ct. App. 2003), we held that the Renter�s Gazette qualified as a newspaper under a City of Indianapolis and Marion County ordinance. The Renter�s Gazette has the appearance of a newspaper. It is printed on newsprint and is folded down the middle. It is usually between eight and ten pages in length. The content of the Renter�s Gazette varies. It often contains articles that are appealing to renters, such as how to keep one�s apartment secure. It also usually contains the schedule of one of the local sports teams. Some of the articles in the Renter�s Gazette are designed to cast apartment communities, their management, and landlords in a negative light. * * *

    Conclusion. The trial court abused its discretion in denying the Apartments� motion for a preliminary injunction because landlords do have a sufficient possessory interest in the common areas of their properties to maintain an action for trespass to those areas and because the Apartments have presented sufficient evidence that they will suffer irreparable harm if a preliminary injunction is not granted. We also hold that the preliminary injunction sought by the Apartments will not constitute an impermissible prior restraint under either the First Amendment or Article I, Section 9 of the Indiana Constitution. The trial court�s denial of the Apartments� motion for a preliminary injunction is therefore reversed, and we remand the case to the trial court. Reversed and remanded.
    KIRSCH, C.J., concurs.

    BAKER, J., dissents with opinion.
    I understand that the Apartments find themselves in an aggravating situation - having to dedicate extra employee time to cleaning up the Renter's Gazette from its properties, losing tenants who buy a home as a result of information contained in the Renter's Gazette, and fearing a loss of prospective tenants who see the littered properties and choose not to rent an apartment. But I believe that granting the requested preliminary injunction gives landlords an unprecedented right to bar whomever they choose from their properties, and I also believe that the injunction violates Campbell Realty�s and the tenants' rights under the First Amendment to the United States Constitution and Article I, Section 9 of the Indiana Constitution. Therefore, I respectfully dissent from the majority opinion. * * *

    Save the Valley, Inc., Hoosier Environ. Council, Inc., and Citizens Action Coalition of Indiana v. Indiana-Kentucky Electric Corp. and Indiana Dept. of Environ. Mgmt. (1/11/05 IndCtApp) [Administrative law]
    Barnes, Judge
    Save the Valley, Inc., Hoosier Environmental Counsel, Inc., and Citizens Action Coalition of Indiana, Inc., (collectively "Appellants") appeal the denial of their motion to dismiss and the granting of a motion for partial summary judgment filed by Indiana-Kentucky Electric Corporation ("IKEC"). We reverse.

    Issue. The Appellants raise three issues, which we consolidate and restate as whether the trial court properly granted IKEC�s partial motion for summary judgment. * * *

    As recognized by the Connecticut Supreme Court, associational standing advances two important objectives. First, allowing an association to represent its members� interests promotes judicial economy and efficiency. The Hunt requirements allow a single plaintiff, in a single lawsuit, to adequately represent the interests of many members, avoiding repetitive and costly independent actions. Associational standing also allows members, who would have standing in their own right, to pool their financial resources and legal expertise to help ensure complete and vigorous litigation of the issues. A third reason for allowing associational standing was recognized by the Georgia Supreme Court when it observed that associations are generally less susceptible than individuals to retaliations by officials responsible for executing the challenged polices. * * *

    The Appellants were not proceeding in their own right nor were they asserting that the public as a whole was harmed by the granting of the permit. See footnote Instead, the Appellants were proceeding on behalf of specific members who were individually aggrieved or adversely affected by IDEM�s decision. Because the Appellants were simply acting in a representational capacity on behalf of the members who were aggrieved or adversely affected by the granting of the permit, Indiana Code Section 4-21.5-3-7 is satisfied. In this context, the associations� standing is based on its members possessing standing to seek administrative review in their own right. We see no reason why the Appellants should not be permitted to seek administrative review under the doctrine of associational standing.

    In determining whether the Appellants satisfy the three requirements set out in Hunt, the parties do not appear to dispute that the named members are aggrieved or adversely affected by the granting of the petition. More specifically, however, the members named in the Appellants� amended petition appear to have standing in their own right because they allege to be aggrieved or adversely affected by IDEM�s granting of the petition. �Aggrieved� has been defined as another person�s actions or a court�s decree or judgment adversely affecting someone�s personal, pecuniary, or property rights. �Aggrieved� has also been defined as a substantial grievance, including the denial of a personal or property right or the imposition of a burden or obligation on a party.

    The petition alleged that members of the groups reside, work, and recreate in the area affected by the landfill and that the individual members would be adversely affected by the impact on the groundwater and by fugitive dust from the landfill. Second, because the Appellants aim to protect the environment and advance members� interests on energy and utility issues, the interests they seek to protect are germane to the organizations� purposes. Third, the Appellants only sought review of the granting of a permit and not an award of monetary damages, which would have required individualized proof. Thus, the three requirements of the Hunt test are satisfied.

    Finally, based on our conclusion that the Appellants had standing to seek administrative review, we must also conclude that the trial court improperly denied their motion to dismiss IKEC�s petition for judicial review and complaint for declaratory judgment. Because the Appellants had standing, the OEA had jurisdiction over the case, requiring the Appellees to comply with the AOPA procedures for seeking judicial review.

    Conclusion. The trial court improperly granted IKEC's motion for partial summary judgment and also improperly denied the Appellants� motions to dismiss. We reverse.
    NAJAM, J., and SULLIVAN, J., concur.

    Posted by Marcia Oddi on Tuesday, January 11, 2005
    Posted to Ind. App.Ct. Decisions

    Indiana Dec. - One today from Supreme Court

    Joseph E. Corcoran v. State of Indiana (1/11/05 IndSCt) [Criminal Law & Procedure]
    Sullivan, Justice

    Joseph E. Corcoran, convicted of four murders and sentenced to death, indicated that he believed he should be put to death for his crimes and waived any further legal review of his convictions and sentence. The State Public Defender took the position that he was not competent to make that decision. The trial court with responsibility for this case found Corcoran to be competent and the State Public Defender appealed that determination. Recently, Corcoran recanted his waiver of further review and now seeks dismissal of this appeal. For the reasons set forth in this opinion, we deny Corcoran�s recent request for dismissal and affirm the trial court�s determination of competency. * * *
    Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., dissents with separate opinion.

    Rucker, Justice, dissenting.
    I respectfully dissent because I believe Corcoran is not competent to waive his right of post-conviction review. * * *

    Posted by Marcia Oddi on Tuesday, January 11, 2005
    Posted to Ind. Sup.Ct. Decisions

    Ind. Dec. - 7th Circuit posts four today

    Foss, Kenneth v. Bear Stearns & Co (ND Ill.)

    Canaan, Keith B. v. Davis, Cecil (SD Ind., David F. Hamilton, Judge)

    * * *
    Because Canaan's counsel was ineffective in failing to consult
    with him regarding his right to testify at the penalty
    phase of the trial, we AFFIRM the judgment of the district
    court issuing a writ of habeas corpus on this basis and
    vacating his death sentence. We REVERSE that part of the
    district court�s judgment granting Canaan habeas corpus
    relief based on his claims relating to the attempted criminal
    deviate conduct conviction. The State of Indiana is free to
    conduct a new death penalty hearing, providing that the
    State files appropriate documents seeking such relief within
    120 days of the mandate of this court.
    USA v. Harris, Loumard (SD Ind., Larry J. McKinney, Chief Judge)
    Before EASTERBROOK, KANNE and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Loumard Harris was charged
    with violating 18 U.S.C. � 922(g)(1), which prohibits felons
    from possessing guns. His first trial ended in a hung jury,
    but a jury convicted him at a second trial. Between the first
    and second trials, Harris had a falling-out with his courtappointed
    attorney and he asked for new counsel. The
    district court declined his request. The details of the conflict
    are not for the most part in the record of this direct appeal.
    Nevertheless Harris appeals his conviction on the grounds
    that (1) the district court erred in denying his request for
    new counsel; (2) the denial resulted in ineffective assistance
    of counsel; and (3) section 922(g)(1) is an unconstitutional
    exercise of federal power over purely intrastate activities in
    contravention of the Commerce Clause. Reversals of
    convictions on direct appeal on the grounds of ineffective
    assistance of counsel are exceedingly rare in any court, and
    Judge Easterbrook noted at oral argument that none can be
    found in this Circuit. Having thoroughly warned the
    defendant and his lawyer of the steep uphill climb�a
    vertical climb, really�that they would have to make, they
    chose to go forward with this direct appeal even though its
    failure would mean the claims could not be brought later
    with a fully developed record in a petition for habeas
    corpus. That consequence now comes to pass as we affirm
    the judgment of the district court.
    Ali, Mirwais v. Ashcroft, John (Immigration)

    Posted by Marcia Oddi on Tuesday, January 11, 2005
    Posted to Ind. (7th Cir.) Decisions

    Indiana Government - Availability of Executive Orders and Other Documents

    Several stories today report on executive orders Governor Daniels already has signed, or will sign today. The Evansville Courier&Press has a list today of the 13 Executive Orders that the new Governor signed yesterday:

    • Create the post of Secretary of Commerce.

    • Change the State Budget Agency to the Office of Management and Budget and ask the new agency to do fiscal analysis of any proposed new administrative rules and measure government performance.

    • Establish an Office of Inspector General to look into allegations of waste and fraud in the state's executive branch.

    • Continue the Office of Public Finance.

    • Order the Department of Administration to set up a program under which the state will give preferential treatment to Hoosier businesses when buying products.

    • Inventory state assets by July 1 and tag unused or underutilized belongings for sale.

    • Require the Department of Administration to post state contracts online.

    • Create an Office of Federal Grants and Procurement.

    • Clarify emergency management duties.

    • Order the Department of Health to set up a system under which all hospitals must report errors. The reporting must be posted online so Hoosiers can compare error rates at different facilities.

    • Require the Department of Administration to accept a specified nonprofit's designation of women and minority-owned businesses as valid for state purposes.

    • Continue and expand executive branch ethics rules.

    • Institute an emergency rule that exempts utilities from some federal regulations until Jan. 14 while repairing damage from the recent ice storm.
    The Indianapolis Star had this in a side-bar:
    Making good on campaign pledges, Gov. Mitch Daniels initiated new in-state purchasing and ethics policies Monday within hours of being sworn into office. Those were two of 13 executive orders he signed.

    In others, he reorganized the state's economic development efforts, launched an inventory of state property and equipment that could be sold and ordered Internet posting of state contracts.

    One of the most significant changes he made was to have leaders of the State Budget Agency, Department of Revenue, Office of Public Finance and Department of Local Government Finance report to Charles Schalliol, director of the newly formed Office of Management and Budget.

    Schalliol's OMB also will oversee the Public Employees' Retirement Fund, the Teachers' Retirement Fund and the State Board of Accounts "to the fullest extent permitted by law."

    Daniels said he will sign an executive order this week to create a free-standing human services agency to handle child protection and child support.

    Other orders signed:

    • Creating the OMB, the Office of Secretary of Commerce, the Office of Inspector General and the Office of Federal Grants and Procurement.
    • Requiring the Department of Administration to recognize the Indiana Regional Minority Supplier Development Council's certification of minority-owned companies, making it easier for such companies to do business with the state.
    • Establishing rules of ethical conduct for state workers.
    • Requiring state contracts to be published on Indiana's Web site.
    • Establishing a purchasing preference for Indiana-made goods and services.
    • Requiring state officials to inventory property and equipment and divest of unused or underused assets.
    The Governor is to take additional actions today (In fact, accorting to a story just posted in the Star, he has just "issued executive orders that invalidated existing labor contracts. Those contracts, ratified in executive orders signed by Kernan, ran through June 2007.")

    Where are the new Executive Orders? None of these Executive Orders appear to be available online. Perhaps it is a one-time glitch, because of the change-over in administrations. As these documents have the effect of law, it is important that they they be just of accessible (and equally accessible) to all Hoosiers as the actions of the General Assembly and rules adopted by state agencies.

    Where are the old Executive Orders? However, it appears also that Governor Kernan's executive orders are no longer available online. These executive orders, along with other important documents such as the veto messages of past governor Kernan and O'Bannon, are important recent history that should remain readily accessible, in my opinion. I know that during the last session, I referred to earlier veto messages of both prior governors often, and a number of times quoted from them in the ILB.

    Advance notice of rules and orders. Yesterday the Indianapolis Star had an editorial titled "Keep government open, accountable." Some quotes:

    IEDC's administrative rule-making process, in which it actually takes over the role that the General Assembly would otherwise play in approving economic development regulations, would be exempted from Indiana Code guidelines requiring public comment. The agency could essentially pass rules without any public input. Negotiations with businesses also would be kept quiet until the agency decided the deal was done; the public would have little say about tax abatements or land-use arrangements until late in the process.

    The IEDC isn't exactly an agency that should be less accountable to the public. After all, the vast array of roles IEDC is taking over from the Department of Commerce include the power to slash regulations, control such programs as the 21st Century Research and Technology Fund, and certify and fund powerful local redevelopment agencies. Oversight is especially important considering that the agency's board members likely will have little experience with the constraints that come with working in the public sector.

    Yes, the state does need to speed up decision-making and cut out bureaucracy. And Daniels' legislative director, Jennifer Thuma, also is correct in noting that many of the state's quasi-governmental affiliates are exempted from rules concerning public comment. But that very lack of accountability is one reason why Indiana state government has been sharply criticized in recent years, including from Daniels himself.

    However, if I correctly understand the 2nd reading amendment approved yesterday, rules of the IEDC are to be considered "emergency rules" under the law, meaning that they go into operation at the time the agency directs, and may not appear in the Indiana Register until weeks thereafter.

    The Star's concern is that there is no opportunity for public comment. An equal concern, in my opinion, is that there be opportunity for advance notice or warning that a rule of the IEDC (or an Executive Order of the Governor) is about to go into operation, and that there be an equal opportunity for notice of the existence and content of an impending change in "law" or procedures that may impact, for instance, your business or future dealings with the State, before it goes into operation, even if this means nothing more than that everyone is on equal footing in so far as knowledge of the law or the operation of state government is concerned

    Posted by Marcia Oddi on Tuesday, January 11, 2005
    Posted to Indiana Government

    Indiana Government - Daniels' resignation request surprises education panel members

    "Daniels' request surprises education panel members" is the headline to this story today in the Indianapolis Star that begins:

    Hoosiers serving on boards setting policy for public schools and universities were troubled and surprised by news Monday that Gov. Mitch Daniels intended to seek their resignations. Quite a few said they wouldn't comply.

    Members of both education panels agreed widespread changes would wipe out the depth of experience and historical knowledge on the boards -- and that could harm Indiana's efforts to improve its schools and universities.

    "I don't think that is good policy at all," said Bryon E. Klute, a higher education commission member who intends to finish his term. "For someone who is brilliant and put in all kinds of hours, why would you ask that?"

    The 14-member Indiana Commission for Higher Education and the 10-member State Board of Education are among 11 appointed panels Daniels wants to overhaul..

    Posted by Marcia Oddi on Tuesday, January 11, 2005
    Posted to Indiana Government

    Environment - Recent stories

    The Chicago Tribune has a story last Friday that began:

    Gov. Rod Blagojevich ordered a Joliet landfill closed Thursday, two weeks after he found out one of his wife's cousins is alleged to have told construction waste haulers he had clout and they could dump anything at the site without scrutiny from environmental regulators.

    A top Blagojevich aide said the governor got involved in a matter normally handled by rank-and-file state employees to send a message that nobody in his family should expect special treatment, in particular his father-in-law, Chicago Ald. Richard Mell (33rd).

    A second story today reports:
    Wielding the same rarely used power that led to the quick closing last week of a Joliet landfill run by a relative of First Lady Patti Blagojevich, Gov. Rod Blagojevich has asked state inspectors to visit a controversial south suburban dump with the intent to shut it down, administration sources said Sunday. * * *

    The dump near Ford Heights has been operated by John Einoder of Orland Park. Einoder has been facing civil environmental charges lodged by Atty. Gen. Lisa Madigan's office involving the landfill, which last fall encompassed 11 acres. The charges include operating a waste-disposal facility without proper permits and open dumping. * * *

    The Ford Heights landfill began operating in 2002 under an agreement with the village aimed at turning the facility into a ski slope once dumping is completed. In August, inspectors from the Illinois EPA reported that the dump appeared to have doubled in size since May 2003, when it was 67 feet high.

    Lawmakers during last year's spring legislative session tried to protect the Ford Heights facility from shutdown efforts by Madigan and the state EPA through the passage of a bill that would have exempted the dump from environmental regulations because it was being constructed as a "recreational facility."

    But Blagojevich vetoed the legislation in August, and state EPA officials said there was no guarantee the site would ever be turned into a ski slope. Only days before the governor's veto, Madigan, at the request of the EPA, filed a lawsuit against its operator and the case has been slowly making its way through the courts, most recently in arguments over the dump's legal representation.

    For those with long memories, the LA Times reports today, in a story headlined: "Ex-EPA Official Gets 15 Months for Wire Fraud":
    A former high-ranking official in the EPA during the Reagan administration was sentenced Monday to 15 months in federal prison for wire fraud and making false statements to the FBI.

    Rita Marie Lavelle orchestrated a scheme to fraudulently obtain money from a client who had hired her San Diego County company to assist in the cleanup of a Superfund site, federal authorities said.

    A lengthy story in the Louisville Courier Journal Monday, headlined "MSD fertilizer plans troubled: Agency takes steps to fix smelly, fire-prone pellets", reported:
    The Metropolitan Sewer District's plan to turn treated human and industrial waste into fertilizer pellets has been beset by problems with odor, dust and fire.

    The fertilizer, called Louisville Green, was so smelly at one Indiana fertilizer and topsoil business that workers threatened to quit, and it caught fire and burned two storage buildings in Arkansas.

    "Sometimes (the odor) was awful bad," said Wayne Mannis, an Arkansas fertilizer dealer who lost some of the pellets in the two fires. "Consider the source, then you can understand it."

    To fix the problems, MSD has added an iron compound to reduce odors, an oil to dampen dust and a flame retardant to reduce its combustion potential. But these steps bring increased costs that could reduce revenue.

    MSD is also studying a potential multimillion-dollar upgrade of its Morris Forman Wastewater Treatment Plant to fully break down sludge a move that could end Louisville Green odors, but one that would be on top of $70million already spent on a treatment system that produces the pellets.

    Despite the problems, which are spelled out in reports and memos obtained by The Courier-Journal under Kentucky's Open Records law, MSD officials and businesses that have tried the product remain optimistic about its potential, saying most new business ventures have hurdles to overcome.

    Posted by Marcia Oddi on Tuesday, January 11, 2005
    Posted to Environment

    Indiana Decisions - Tomorrow is the one-year anniversary of the same sex marriage argument before the Indiana Court of Appeals panel

    Looking through the Indiana Law Blog archives, I found this entry from January 13, 2004, which begins:

    Yesterday was the oral argument before the Indiana Court of Appeals in the case of Ruth Morrison, et al., v. Doris Ann Sadler, et al., challenging Indiana's prohibition against same sex marriage, found at IC 31-11-1-1. You may listen to the argument online here via the Indiana Judiciary site. Earlier Indiana Law Blog coverage may be found here and here.
    An opinion has not yet been issued. The following are on the three-judge Court of Appeals panel that heard the argument: Judges Friedlander, Kirsch and Barnes.

    Posted by Marcia Oddi on Tuesday, January 11, 2005
    Posted to Ind. App.Ct. Decisions

    Monday, January 10, 2005

    Indiana Government - [Updated] Open the door on votes in committees

    "Open the door on votes in committees" is the heading to a letter to the editor today in the Indianapolis Star. The letter:

    Opening up Indiana government to the people is a very worthy idea, but I'm not sure that video streaming of House floor activities is the best way for the public to get the most information it needs to decide if legislators are doing the jobs they were elected to do.

    The most useful tool would be to post all committee votes on the Internet. I know from experience how hard it is to find out if your lawmaker even showed up to vote in a certain committee, let alone how he or she voted. The way it stands now, a candidate could run for office based on a promise to work hard to get certain legislation passed, have that bill show up in a committee hearing, vote against it and encourage other lawmakers to vote against it, and then blame everyone else for it "dying in committee."

    No one would ever know they were scammed because no one keeps records on who votes on what. We need House Speaker Brian Bosma and Gov. Mitch Daniels to establish a system in which all committee votes can be recorded and disseminated to the public in a fashion that is easy to understand.

    The writer will be happy to know that the committee votes actually already are available online. This may well be new this year; I don't recall seeing them in the past.

    As an example, look at House Bill 1003, the economic development bill. The bill was passed out of the House committee on 1/5/05; here is a copy of the roll call vote.

    Today, according to the Action List, the bill was on Second Reading in the House; it was amended on second reading and ordered engrossed. What were these amendments? Looking at the main HB 1003 page, near the bottom, you will see a list of all House amendments filed, and a much shorter list of those passed. In this case, only one 2nd reading amendment passed - identified as 1003-15. The roll call vote on the second reading amendment that passed, as well as those that failed, also should be available.

    Problem. I confess however, that I can't locate the roll call right now. There also seems to be a problem with the General Assembly's software, as the entries on the page are repeated scores of time. Hopefully, this glitch will be corrected quickly.

    [Update 1/11/05] A reader has sent a little more information.

    This is indeed the first session that committeee vote sheets have been available online (although they have been available in past years from the Legislative Information Center, aka the "bill room").

    As for how to tie a house amendment to its proper roll call, it is possible, but not simple right now, according to the writer:

    It appears that the roll calls listed at the "Roll Call(s)" bullet are numbered according to the number of roll call that the House has taken this session. You may recall, they start at #1 and keep going to sine die. (I think each chamber does about 600 or 700 a Session.)

    Under the "House Amendments passed" bullet, the motions are numbered according to the LSA document number assigned to that motion. In the case of 1003-15 for example, that motion is the 15th motion we processed for HB 1003. That motion may be the first one filed or it may never be filed. If you look at the bottom left corner of the document, you will see MO100315. That is where 1003-15 comes from.

    If you look at the top left corner of the document, you see that the motion is HB 1003-1. It was the first motion filed for this bill. Rep. Borror filed it today at 9:45am. This was the motion disposed of on Roll Call #9 (The roll call sheet shows "2nd Reading Amend. #1".)

    Posted by Marcia Oddi on Monday, January 10, 2005
    Posted to Indiana Government

    Indiana Courts - Senior Judge Richard P. Good to be Judge Pro Tem to Juvenile Court

    Per a release this afternoon from the Office of the Chief Justice:

    Senior Judge Richard P. Good has been appointed as a temporary judge for the Marion Superior Court until Governor Mitchell E. Daniels Jr. names a permanent replacement, Chief Justice Randall T. Shepard announced today.

    A vacancy on the Marion Superior Court was created when veteran Juvenile Court Judge James W. Payne resigned today to take a position with the administration of Gov. Daniels. Senior Judge Good will begin work immediately.

    Judge Good was previously a judge on the Marion Superior Court until his retirement in 2002 and has been a senior judge since then. In 2004 he served as a senior judge in Marion County more than 60 times. He has also been a chief deputy prosecutor and was the longtime executive director of the Indiana Prosecuting Attorneys Council. In addition, he was a member of the commission that drafted the existing Juvenile Code.

    The members of our Court are grateful Judge Good is willing to serve a senior judge until a permanent replacement for Judge Payne is named. We are confident the Juvenile Court will run smoothly during this transition period. Judge Payne has brought national honor to Indiana for his work with children. While we are sad that he has left the bench, we wish him all success in his new assignment, said Chief Justice Shepard.

    Senior judges typically fill in on as needed basis in courts with high caseloads or where a judge is absent due to circumstances like illness or military service.

    Gov. Daniels will select a permanent replacement for Judge Payne for a term that was scheduled to last until December 31, 2008.

    Posted by Marcia Oddi on Monday, January 10, 2005
    Posted to Indiana Courts

    Indiana Decisions - 7th Circuit posts one today

    Kort, Elizabeth v. Diversified Collection (ND Ill.)

    Before POSNER, MANION, and EVANS, Circuit Judges.
    MANION, Circuit Judge. Elizabeth Kort, representing a
    class of individuals, sued Diversified Collection Services
    (DCS), claiming that DCS violated the Fair Debt Collec-
    tion Practices Act (FDCPA), 15 U.S.C. 1692, et seq., by
    mailing her and others misleading garnishment notices. The
    debts at issue were student loans governed by the Higher
    Education Act (HEA), 20 U.S.C. 1070, et seq. The text of
    the garnishment notice was taken entirely from a form
    issued by the Department of Education (DOE), which is
    the federal agency charged with regulating under the HEA.
    Given DCSs reliance on the DOE form, the district court
    ruled that DCS was entitled to an affirmative defense under
    the FDCPA known as the bona fide error defense and
    thus granted DCS summary judgment on this issue. Kort is
    no longer prosecuting the case, but Hattie Harris-Alleyne
    and Lindsay Miller have intervened to appeal the grant of
    summary judgment to DCS on behalf of themselves and the
    corresponding class. We affirm. * * *

    DCSs adherence to the DOE form in its garnishment
    notice entitles it to the bona fide error defense, and DCS is
    thus insulated from FDCPA liability with respect to its
    handling of the HEA unemployment exemption.

    Posted by Marcia Oddi on Monday, January 10, 2005
    Posted to Ind. (7th Cir.) Decisions

    Ind. Gov't - Authority of the Governor over Executive Branch appointees

    "Members of gaming panel face uncertain future" is the headline to Lesley Stedman Weidenbener's Sunday column in the Louisville Courier Journal. She writes:

    Gov.-elect Mitch Daniels, who takes office tomorrow, said last week he expects that Hoosiers serving on state boards and commissions will resign - without his having to ask. That's thousands of people, serving on high-profile boards like the Indiana Utility Regulatory Commission and obscure ones like the Indiana Corn Marketing Council.

    If members don't tender their resignations, Daniels says he'll ask for them. Not all of them will be accepted, Daniels said. And in some cases, he's seeking to eliminate the boards anyway.

    But there's one agency where the request is already causing some fireworks. Daniels wants members of the Indiana Gaming Commission - which oversees the state's 10 casinos and is contracting the operation of an 11th in French Lick - to resign so he can have his own appointees.

    But unlike many of the state's boards, gaming commission members don't by law serve at the pleasure of the governor. That means the governor can't just remove members because he doesn't like them, or because he's found other people he'd rather have fill the spots.

    State law specifically establishes four-year terms for members of the gaming commission and says they can be removed for the following reasons: neglect of duty, misfeasance, malfeasance or nonfeasance. Essentially, that means failing to follow state laws.

    Contrast that with the law establishing the Indiana Utility Regulatory Commission. It says members "may be removed at any time by the governor for cause." It doesn't define cause, leaving the door wide open for a governor to use just about any reason to remove a member.

    A Dec. 4, 2004 Indiana Law Blog entry made a similar point. I wrote, near the end of the entry:
    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." * * *

    Essential, in my opinion, to any effective 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.

    To expand on that, the basic model in Indiana, as established by the Indiana Constitution, is that the Governor alone heads the executive branch, he/she appoints the people who heads the various agencies of government, and they serve "at the pleasure of the Governor."

    Over the years, there have been efforts to circumscribe the power of the Governor. This would seem to be an inevitable result of the dynamic tension between the executive and legislative branches of government.

    The most notable occurred in 1941, when the General Assembly took away the power of the Governor to appoint the heads of most state agencies, distributing the authority instead among other state elected officials such as the Auditor, Treasurer, Secretary of State and Lieutenant Governor (who was separately elected under the constitutional provisions then in force). In a 1941 decision called Tucker v. State, the Supreme Court threw out the challenged statutes. Tucker and subsequent decisions define the role of the governor and prohibit the Indiana general assembly from encroaching upon the executive branch of state government by (1) appointing its own members to perform executive functions or (2) by enacting laws that dilute the powers of the governor.

    In the 60-plus years since Tucker, however, the General Assembly has tried out a number of variations on the basic model, aimed at sharing the Governor's executive power, or limiting it.

    The most recent example of an effort at both is found in the Indiana Economic Development Commission (IEDC) law, as originally drafted in 2003. The IEDC was to be headed by the Lieutenant Governor and run by a 23 member board, with twelve board members to be appointed by the General Assembly, and a number of others to be appointed by state university heads. The Governor was given three appointments.

    Many of the problems with the IEDC were corected in the 2004 session of the General Assembly, and additional changes are being made this year. (See the ILB entry, "Economic Development and the Indiana Governor," from May 17, 2004.)

    Rather than directly removing the Governor's appointment powers, many laws try to circumscribe it. Here are some of the ways this has been done, in no particular order. Some of these examples, either clearly or arguably, limit a governor's authority in making appointments, or otherwise dilute his/her right to select his own people, or dilute the powers of a governor.

  • Requiring that the Governor make his selection from people nominated by a panel, or from recommendations made by the General Assembly, or from nominees submitted by a university or a trade group.

  • By provisions that set a fixed term for an appointment, rather than service "at the pleasure of the Governor."

  • By provisions that provide that the appointee may only be removed by the Governor "for cause" or for certain described reasons (thereby defining "for cause" -- the gaming commission is an example).
  • Readers may be able to provide other examples. There is currently much variation in the law. The question is - how far, if at all, may the Governor's appointive power be circumscribed without running afoul of the Indiana Constitution?

    [More] This morning's Indianapolis Star has a front-page story by Kevin Corcoran headlined "Kernan rejects request to seek resignations: Daniels' aides sought predecessor's help replacing members on boards, commissions." Some quotes:

    "I anticipate asking members of boards of all kinds to tender resignations," said Daniels, who will be sworn into office today. "We think that would be appropriate in the case of very important policymaking bodies. We'd like to be able to change these bodies, just like the rest of state government.

    "We hope that current appointees will do the right thing and at least tender those resignations," he said. "Not all will be accepted. I think that if I were a board member under these circumstances, I would offer up my resignation."

    Even if Daniels asks, however, nothing in state law requires members of these boards and commissions to comply. Most state boards and commissions involve fixed terms. The new governor can't fire members if their terms aren't up.

    Perhaps. The story goes on to report:
    Kernan filled vacancies on full- and part-time state boards and commissions at an unprecedented pace last year, meaning his influence over state government could continue for some time. In all, Kernan appointed and reappointed 1,242 people to more than 300 boards and commissions, Kernan spokeswoman Lisa Sirkin said.

    The total number of people serving on state boards and commissions is 2,428. Under state law, these board and commission members generally serve terms that overlap those of the state's governors to ensure some continuity. Kernan did not want to disrupt this pattern.

    Posted by Marcia Oddi on Monday, January 10, 2005
    Posted to Indiana Government

    Sunday, January 09, 2005

    Law - Schwarzenegger's proposal to fold into one agency three state boards that decide workplace issues

    "State Panel Plan Assailed: Unions and lawyers for injured workers say a proposal to merge three boards is a power grab that would endanger their independence." That is the headline to a January 7, 2005 story in the LA Times.

    Why another Arnold story? Because of the similarities between two new state administrations - California and Indiana - that have vowed to change the ways their states are doing business. Some quotes from today's story:

    SACRAMENTO Labor unions and attorneys for injured workers are slamming Gov. Arnold Schwarzenegger's proposal to fold into one agency three state boards that decide workplace issues.

    The plan is part a sweeping government reorganization that the governor proposed in his State of the State speech Wednesday, a plan that would eliminate more than 100 government boards and commissions.

    Schwarzenegger wants to combine the Workers' Compensation Appeals Board, the Unemployment Insurance Appeals Board and the Occupational Safety and Health Appeals Board into one, nine-member commission. All of the members of what one administration lobbyist dubbed "the bercommission" would be appointed by the governor and could be dismissed at any time.

    More from the story:
    The proposal, which could go into effect in 90 days if not rejected by the Legislature, is being touted by Schwarzenegger as a reform measure that would end the long-standing practice by outgoing governors of packing little-known state panels with their political cronies.

    The governor wants more control over the appointees, who typically earn six-figure salaries, serve extended terms and sometimes fail to show up for work, said Victoria Bradshaw, secretary of Schwarzenegger's Labor and Work Development Agency.

    Posted by Marcia Oddi on Sunday, January 09, 2005
    Posted to General Law Related

    Indiana Government - Editorial writes new administration should get up to speed on public-access laws

    The Evansville Courier&Press writes today:

    Because Daniels will be the first Republican in 16 years to head state government, his administrative makeover is extensive. There will be a whole new team of administrators, department heads and policymakers running the executive branch of Indiana government.

    Most of these new executives do not have statewide name recognition or extensive state government experience. Of course, in Evansville, we are familiar with insurance agent Harold Calloway, who will become the new commissioner of the Indiana Department of Insurance under Daniels. But others are unknown here and elsewhere in Indiana. That's because many of them have been recruited by Daniels from business and industry, most from outside mainstream government service.

    For example, the new head of the Indiana Department of Transportation is Thomas Sharp, a retired Alcoa executive. The new head of the Indiana Department of Environmental Management is Thomas Easterly, president of an environmental consulting firm and a former steel company official.

    The new head of the Bureau of Motor Vehicles is the former president and CEO of a sporting-goods company. A businessman was recruited to head the Indiana Economic Development Corp. A retired company president was named to head the Department of Administration, and a popcorn-company executive will head agriculture.

    That composite business/industry connection may well serve Daniels' plan to make state government a far more efficient, businesslike operation. It's a worthy goal for a state government that hasn't had a good shakeup in years.

    However, because most of their experience is outside of government, it would be understandable if this new corps of executives is found to be less than familiar with Indiana's public-access laws. If so, it will be important that they get up to speed on the state's open-meetings and open-records law. Those laws provide that citizens are entitled to complete information on the activities and business of their government. * * *

    One early test occurred this past week, when the Indiana House Economic Development and Small Business Committee voted 9-to-2 to pass a bill pushed by Daniels that shifts responsibility for economic development to the Indiana Economic Development Corp., a quasi-government board.

    As staff writer Jennifer Whitson reported, backers of the switch say the board, made up of private-sector representatives appointed by the governor and not hampered by the red tape of normal state regulations, would be able to move quickly to woo new businesses to Indiana.

    That description had red flags waving from Indianapolis to Evansville, with some lawmakers expressing concerns about whether the board would acknowledge the open-records laws.

    But in approving the bill, the committee included wording that the commission falls under Indiana's public-access laws. That's a good start.

    As a candidate, Daniels assured Hoosiers that he is committed to open government. He told a group of newspaper editors in October that, among other steps, he favors more disclosure about the details of state contracts.

    As a candidate, Daniels said the right things about open government. It is an attitude we hope he has communicated to his new administration.

    Posted by Marcia Oddi on Sunday, January 09, 2005
    Posted to Indiana Government

    Indiana Law - DeLaneys band together

    Susan Guyett reports in her column in the Indianapolis Star today:

    The law firm of DeLaney & DeLaney just added a new partner. Ed DeLaney, who was a partner at Barnes & Thornburg, has joined the civil litigation firm that his wife and daughter started in 2002.

    His daughter, Kathleen DeLaney, is the firm's managing partner; his wife, Ann DeLaney, practices law while serving as executive director of the Julian Center.

    Posted by Marcia Oddi on Sunday, January 09, 2005
    Posted to Indiana Law

    Law - Schwarzenegger Proposes Overhaul of Redistricting

    Use of the search box reveals that many Indiana Law Blog entries have reported on redistricting. Two particularly appropriate as background to this entry today on California Governor Schwarzenegger's proposal to overhaul his state's redistricting process are this one from Feb. 21, 2004, titled "Elections With No Meaning," and this one from May 23, 2004 titled "Indianapolis Star editorializes against gerrymandering."

    Also, this from the end of a Sept. 19th, 2004 ILB entry (unfortunately the Star links now lead only to its pay-for-view archive).

    "Drawing the political lines: How gerrymandering affects election results" is the focus of a dual-author opinion piece today in the Star's opinion section. Too complex to summarize, but certainly worth a read, "Craig Ladwig of the Indiana Policy Review Foundation and Rob Richie and Steven Hill of the Center for Voting and Democracy examine this lack of competition [that is the result of gerrymandering] and what can be done about it." Their answer appears to be "not much." This has also been the answer from earlier ILB entries, including this one from May 23, 2004.
    Governor Schwarzenegger does not agree that not much can be done, as shown by his annual State of the State address last week. Here are some quotes from a story published Jan. 6, 2005 in the NY Times:
    In his annual State of the State address on Wednesday night, the governor called on the Democratic-controlled Legislature to enact a fundamental overhaul that would include that most sacred of political cows, the way Congressional and legislative districts are drawn.

    Mr. Schwarzenegger proposed turning over the drawing of the state's political map to a panel of retired judges, taking it out of the hands of lawmakers who for decades have used the redistricting process in a cozy bipartisan deal to choose their voters and cement their incumbency. He threatened to take the issue directly to the voters if the Legislature does not act on the plan in a special session he called for.

    Mr. Schwarzenegger, a Republican, noted that of the 153 seats in the California Congressional delegation and Legislature that were on the ballot in November, not one changed party hands.

    "What kind of a democracy is that?" he asked in his address. "The current system is rigged to benefit the interests of those in office and not those who put them there," he said. "We must reform it." * * *

    Mr. Schwarzenegger will find few allies in the Legislature or in the Congressional delegation for his plan to redraw the state's political map. After the 2000 census, Democrats and Republicans joined hands to draw districts in a way that would protect incumbents. Republicans went along out of fear that if they resisted, the Democratic majority would produce an even worse plan. It was much the same picture on the national level. Parties in power in each state employed sophisticated computer models to ensure continued control of their legislative delegations and statehouse contingents. The result was virtual assurance of re-election for incumbents, or at least control of the seat by the same party.

    According to The Cook Political Report, 151 Congressional seats were considered competitive after the redistricting that followed the 1990 census. After the 2000 redistricting, only 45 seats were considered competitive. In 2004, only 13 changed party hands and only 7 incumbents lost.

    An analysis piece in the LA Times, dated Jan. 5, 2005 (before the speech), contain much interesting background. And here are two editorials from today's California papers.

    The Santa Cruz Sentinel writes:

    In theory, were in favor of the way its done now, with elected officials deciding how to draw the boundaries. But in practice, the system doesnt work, and we no longer think office-holders should have the power to establish district lines. They have fouled up the process beyond belief, and they should be stripped of all authority.

    The problem with what theyve done is that theyve turned virtually all state Senate and Assembly districts into "safe" districts. Todays map features districts that are either heavily Republican or heavily Democratic.

    What that has done is driven away something that California needs badly: moderate voices. With safe districts throughout the state, the main contest for candidates is in the primary and that encourages Republicans to move to the right and Democrats to move to the left.

    It discourages what Santa Cruz had until recently representation by a middle-of-the-road Republican, former state Sen. Bruce McPherson. Without these moderating voices, elected officials from the far right and the far left argue over everything and so far have not come up with a plan to get California back to fiscal health.

    Beyond the issue of moderation, the blatantly political redistricting has caused communities to be split. Right here in Santa Cruz County, we no longer are represented by one state senator. The county is divided with senators who are largely responsible to voters outside of the county. The lack of our own district is truly an outrage.

    Theres a lot to do to reform the state. But we agree with Schwarzenegger that the first thing that needs to change is a map of legislative districts that will reflect the true California and not the selfish needs of hack politicians who manipulated the entire state for their own good.

    The Sacramento Bee warns:
    A lobbying firm representing traditionally Democratic causes and a political consultant with ties to a Democratic congressman are seeking to qualify a handful of ballot initiatives that exempt members of Congress if Gov. Arnold Schwarzenegger proceeds with a special election to force the redrawing of political districts years ahead of schedule.

    Jim Gonzalez and Associates, the Sacramento lobbying firm that submitted the four proposed initiatives to the state attorney general's office for consideration, and John Thiella, a consultant to the firm on the initiative proposals, say they are not working on behalf of specific clients but rather floating proposals that might attract support in the event of a special election to consider midcensus redistricting. * * *

    The governor has argued that the current set of districts goes so far to protect the incumbents who agreed to it that it creates a polarized, entrenched system in which elections are decided in primaries, and partisan interest groups who provide campaign money hold too much sway.

    The Schwarzenegger administration has denied partisan motives, but many California Democrats don't like the idea of a midcensus redistricting because they fear the goal is to shift congressional seats to Republicans, as was the case in Texas' midcensus redistricting, orchestrated by House Majority Leader Tom DeLay.

    Thiella echoed those thoughts. "We want to make sure any plan adopted is not a White House plan to bring a right-wing Texas-style reapportionment to California," he said. "The only way to make sure that's not the case is to have other initiatives available to voters so they can make a choice."

    Of California's congressional delegation, 33 seats are Democrat-held, with one now vacant with the death of Rep. Robert Matsui, and 20 are Republican-held.

    Meanwhile, some members of the state's Republican congressional delegation also oppose the idea.

    They too could become vulnerable if ex-judges drew new districts that pitted them against a same-party incumbent in a primary, or against a stronger Democratic incumbent in a general election. Rep. John Doolittle, R-Roseville, has said his party might lose as many as four seats in such a situation.

    Finally, of course, California's ballot-initiative type-system is not available in Indiana. Any change in Indiana would have to come from the General Assembly. To repeat again from what I said at the end of my May 23, 2004 ILB entry:
    Something the Star does not point out in its editorial today is the difficulty of any change. As Vieth v. Jubelirer indicates, the courts are highly unlikely to act against political gerrymandering. This leaves the legistature as the only other alternative. But why would members or candidates with safe seats, such as the 88 out of 100 referenced by the Star, push for a diifferent system?

    The Star says: "[V]oters can demand that they be given true choices on Election Day by insisting that legislators put an end to gerrymandering. Fair districts not only prompt more competition and higher turnout but also better government. Incumbents who actually have to work to win votes before Election Day are far more likely to listen and respond to constituents." But the Star does not explain how to get from here to there. The voters' ballots are their weapons, but carefully drawn districts have already made blunted any real possibility of putting the voters back in control of elections.

    Posted by Marcia Oddi on Sunday, January 09, 2005
    Posted to General Law Related

    Indiana Law/Environment - Lawmakers to address environment

    "Lawmakers to address environment" is the headline to an informative AP story by Rick Callahan, that appears in the Louisville Courier Journal. Some quotes:

    INDIANAPOLIS With a new governor and a new direction for Indiana's environmental agency on the horizon, lawmakers are preparing to revisit three long-running environmental issues: permits, sewer overflows [CSOs] and underground storage tanks [USTs].

    [Permits] Gov.-elect Mitch Daniels, who will take office tomorrow, wants Indiana to follow the lead of states such as Kentucky that allow the advance issuing of permits for industrial sites to make them "shovel-ready" for developers.

    Daniels said Indiana's current permit system is complicated and slow and discourages development by costing businesses time and money.

    "For a lot of businesses, the question is `Can I go into business in Kentucky in six months or in Indiana in 12 months?' All else being equal, they're going to pick Kentucky," he said.

    [USTs] Rep. David Wolkins, who will sponsor the pre-permitting legislation, is also drafting a bill that would retool financing for a state fund that helps pay for the cleanup of leaking underground gasoline tanks.

    The Excess Liability Trust Fund, created by lawmakers in 1988, once topped $70million. It has been depleted by payouts for the cleanups of more than 400 old tanks.

    As of Dec. 22, the fund had a $12.7million balance, but that is projected to fall to $5million within a few months. At that point, money will be released only for the highest-priority cleanups, said Bruce Palin, the Indiana Department of Environmental Management's deputy assistant commissioner for the Office of Land Quality.

    Wolkins' bill could call for fee increases in one or both of the fund's two sources of money a 40-cent tax on each 50 gallons of gasoline or kerosene entering the state and a $90 annual registration fee for each underground tank. * * *

    [CSOs] Sen. Beverly Gard, chairwoman of the Senate Environmental Affairs Committee, is drafting a bill that would give cities and towns with overflow-prone sewers more time to upgrade their outdated systems.

    A law passed in 2000 gives communities with IDEM-approved cleanup plans temporary exemptions from water-quality standards to discharge sewage during and after storms. But Gard, R-Greenfield, said the law did not provide them enough flexibility to make costly improvements in sewers that discharge raw sewage into waterways during rainy periods.

    "We knew when we passed this initial legislation about four years ago that there was eventually going to have to be some fine-tuning," she said. * * *

    Bonnie Nash, spokeswoman for state environmental regulators, said 82 of Indiana's 102 cities with combined sewer systems those in which storm drains and sanitary sewers empty into the same lines have submitted state-required plans that call for fixes that will take anywhere from a few years to two decades.

    [Lead] Gard also is drafting legislation to improve the state's ability to track childhood lead-poisoning cases. Children who ingest lead-based paint can suffer intelligence-lowering brain damage, behavioral problems, slowed growth and hearing loss.

    None of the bills mentioned appear to been introduced and assigned to committee as of today.

    Posted by Marcia Oddi on Sunday, January 09, 2005
    Posted to Environmental Issues | Indiana Law

    Indiana Law - Couple's refusal to disclose Social Security numbers proves costly

    "Couple's refusal to disclose Social Security numbers proves costly" was the headline to an AP story the Indianapolis Star published on Jan. 3, 2005. Some quotes:

    VALPARAISO, IND. -- A northwestern Indiana couple says they have faced hardships for two decades because they refuse to disclose their Social Security numbers. Dave and Pat Wallin live in an old recreational vehicle that has been parked for two years on private property in rural Porter County.

    The couple, both in their 50s, lost their home in a tax dispute with the Internal Revenue Service in the 1980s, The Times of Munster reported Sunday. Since 1986, the Wallins have refused to divulge their Social Security numbers to anyone, including government agencies, creditors, employers and police.

    That has proven difficult when public agencies and private businesses of all sorts - including public schools, license branches and hospitals - routinely require the numbers for identification. * * *

    Officials said she cannot receive a license without providing the number.

    "It's the law," said Indiana Bureau of Motor Vehicles spokesman Dan Henkel. The requirement was started in 2001 as a means of tracking deadbeat parents, he said, and the state plans soon to begin using software that will sort through its database matching numbers from various agencies.

    The Wallins believe using Social Security numbers as a "tracking number" could threaten individual freedom.

    Reading this recalled a Feb. 26, 2004 ILB entry on a 2/24/04 Government Accounting Office (GAO) report on private use of the Social Security number. The GAO explanation of why it did the study (from the one-page executive summary):
    In 1936, the Social Security Administration (SSA) established the Social Security number (SSN) to track workers earnings for Social Security benefit purposes. However, the SSN is also used for a myriad of non-Social Security purposes. Today, public and private sector entities view the SSN as a key piece of information that enables them to conduct their business and deliver services. However, given the apparent rise in identity crimes as well as the rapidly increasing availability of information over the Internet, Congress has raised concern over how certain private sector entities obtain, use, and safeguard SSN data. * * *
    [emphasis added]
    The 2/26/04 Indiana Law Blog entry asked "What About Indiana?" and reported:
    In 1978 the State of Indiana enacted a law providing that "No individual may be compelled by any state agency, board, commission, department, bureau, or other entity of state government to provide the individual's Social Security number to the state agency against the individual's will, absent federal requirements to the contrary." This law was the result of 12/1/76 recommendations of Governor Otis Bowen's Commission on Individual Privacy. This group was charged with investigating and making recommendations on, among other things, "the use of social security numbers, license plate numbers, universal identifiers and other symbols to identify individuals in data bases and to gain access to, integrate or centralize information systems and files."

    Take a look at that same law as it exists today, IC 4-1-8-1. Today, twenty-six years later, the law has been amended over and over and now contains a list of dozens of exemptions, which appear to exclude most state government functions from the prohibition against requiring an individual to provide her social security number.

    According to page 24 of the full (35-page) GAO report:
    At least six states have enacted their own legislation to restrict private sector uses of SSNs. Based on our review of select legislative documents within 18 states, California, Missouri, Arizona, Georgia, Utah, and Texas had enacted laws to restrict either the display or the use of SSNs.
    I am not aware of any Indiana law restricting private sector use of SSNs.

    Posted by Marcia Oddi on Sunday, January 09, 2005
    Posted to Indiana Law

    Law - Kentucky election law standoff in perspective

    Yesterday (see the entry immediately below) I tried to put together a summary of the election dispute in Kentucky over "District 37" that is pitting the legislative branch against the judicial branch. I said: "It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again."

    The Louisville Courier Journal today has put together a good overview of the story so far.

    Details of Indiana's most recent Indiana election dispute, shorthanded at "District 46," that threatened to evolve into a legislature vs. courts standoff, may be found in these two final entries on the matter, from Nov. 5, 2004 and Nov. 10, 2004.

    Posted by Marcia Oddi on Sunday, January 09, 2005
    Posted to General Law Related

    Saturday, January 08, 2005

    Law - Still more on election law standoff in Kentucky

    Just because we haven't reported on it since our Dec. 14th entry (which includes links to a number of earlier entries) doesn't mean the election dispute in Kentucky has been resolved. The impending standoff is 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 to take office. It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again.

    Per a Jan. 7th, 2005 story in the Louisville Courier-Journal:

    On a 5-4 party-line vote, a state Senate committee recommended last night that Democrat Virginia Woodward be seated to represent Jefferson County's 37th District and said her opponent did not meet constitutional residency requirements.

    The recommendation by the Democratic-controlled committee came after a day of meetings and testimony during which some Republicans argued that Woodward's GOP opponent, Dana Seum Stephenson, should be allowed to serve because she received more votes in the Nov. 2 election.

    After the vote, Republicans on the committee filed two independent reports one calling for the Senate to seat Stephenson, the other recommending that neither Stephenson nor Woodward be seated and calling for a special election.

    The full Senate with its 22-15 Republican majority is expected to act on those recommendations today.

    Senate Majority Leader Dan Kelly, R-Springfield, said last night that the Senate can accept the committee report, accept either of the two reports filed by Republicans, or fashion its own remedy. * * *

    The race was thrown into disarray the day before the election when Woodward filed suit contending that Stephenson, the daughter of state Sen. Dan Seum, R-Louisville, did not meet Kentucky's residency requirements for the Senate.

    Stephenson received about 1,000 votes more than Woodward in the election, but a Jefferson Circuit Court judge ruled that she did not meet residency requirements and ordered the state Board of Elections not to count or certify her votes.

    Stephenson lived in Indiana between 1997 and 2001. The Kentucky Constitution requires senators to live in the state for at least six years before their election. * * *

    After the judge disqualified her, Stephenson threw the battle to the Republican Senate, which, under the constitution, has the authority to decide the qualifications of its members. The Senate created a nine-member committee to hear the case, and selected its members by lot. Five Democrats and four Republicans were chosen. [See also this 1/5/05 LCJ story.]

    A story yesterday from the Lexington Heald-Leader points out:
    "I expect the full Senate to follow suit," said Jennifer Moore, Woodward's attorney.

    But it might not. The Senate might decide to seat Republican Dana Seum Stephenson instead, which could send the issue to the state Supreme Court. The Senate could also force a special election.

    Senate Majority Leader Dan Kelly, R-Springfield, said the full Senate will consider the report today, but he and other Republicans declined to predict what the chamber will do. Late last night, GOP panel members were filing dissents.

    The outcome is being closely watched because seating Stephenson could give the GOP the key 23rd vote it needs to pass budget or tax bills this session.

    Today the LCJ reports, in a lengthy story:
    Republicans used their majority in the Kentucky Senate yesterday to put Dana Seum Stephenson in Jefferson County's 37th District seat.

    In doing so, the Senate refused to accept its own committee's recommendation that Stephenson's opponent, Democrat Virginia Woodward, be seated and the ruling of a circuit court judge that ordered her certified as the winner.

    Kentucky legal experts said yesterday that they expect the state Supreme Court will decide whether Stephenson, a Republican, is qualified.

    "It's the job of the courts to interpret the constitution," said Phillip Shepherd, a Democrat who is a lawyer in Frankfort.

    Richard H.C. Clay, a Louisville Republican and former president of the Kentucky Bar Association, agreed, calling the situation a "constitutional crisis." * * *

    The battle for the seat and the rancor it has prompted, meanwhile, might cost Senate Republicans one of their own. The only Republican to vote against seating Stephenson, Sen. Bob Leeper of Paducah, threatened to resign.

    "I am tired, I am tired of the unhealthy partisanship that too often fills our days," Leeper read from a statement last night.

    Leeper, a former Democrat who switched to the Republican Party in 1999, had proposed a special election to decide who should represent the 37th District. But Senate President David Williams, R-Burkesville, refused to allow that action to be considered, saying the Senate had already made its decision.

    In a second story today the LCJ reports:
    When he walked off the Senate floor yesterday, Republican state Sen. Bob Leeper said he would resign because leaders of his party had rejected his proposal to solve the 37th District election dispute. * * *

    Leeper's threat to quit stunned party leaders who worried they might not have enough GOP lawmakers to pass their versions of budget, tax and constitutional amendment bills when the session resumes Feb. 1.

    Finally, an AP story today in the Evansville Courier&Press reports:
    Senate Republicans asserted their power in a disputed election Friday and seated Dana Seum Stephenson as a senator, acting quickly to swear her in and attach a large bronze nameplate to her desk.

    The fallout from the decision, including a threatened resignation by one of their own Republican members, hard feelings among Democrats and a looming court fight by the Democrat who lost, will likely take far longer.

    "I refuse to participate in what I believe to be the greatest single act of pure, raw, ugly politics as I have ever seen take place in our Capitol," said Senate Democratic Floor Leader Ed Worley of Richmond.

    The decision prompted one Republican, Sen. Bob Leeper of Paducah, to say he would resign in protest. After meeting privately with Senate President David Williams and Gov. Ernie Fletcher, Leeper said late in the day he would take time to consider and did not rule out a future resignation.

    Democrat Virginia Woodward went to court right after the vote and will ask a Franklin County Circuit Court judge Monday morning to prohibit Stephenson from taking any action as a senator until the challenge to Stephenson's residency is resolved.

    Posted by Marcia Oddi on Saturday, January 08, 2005
    Posted to General Law Related

    Law - Revolutionary change in New York's General Assembly

    Given the improvements instituted by our Indiana House of Representatives this year, including putting the House sessions online, this story from Friday's NY Times seems positively archaic. Some quotes:

    ALBANY, Jan. 6 - A revolutionary change is coming to the State Assembly, as odd as it might sound to those uninitiated in Albany's ways: the Assembly is adopting new rules requiring lawmakers to actually be present in the Capitol when they want to vote on bills.

    The change alters one of the more curious, and criticized, aspects of the byzantine system of lawmaking in the capital, where legislators use a kind of cruise-control approach to voting: once lawmakers sign in for the day, they are counted as voting yes on all bills unless they signal otherwise.

    The Republican-led State Senate, meanwhile, is planning its own changes. The Republicans want to require senators to be present in their seats only when they vote no, which has the added benefit of requiring their opponents, the Democrats, to hang around all day to try to block the bills that the Republicans bring to the floor.

    Both houses, which have been under public pressure to change their rules to make the New York State Legislature more open, deliberative and democratic, plan to adopt new rules on Monday that even longtime critics call a significant first step.

    The arcana of parliamentary rules are not usually the stuff of high drama, but here in Albany they have become lightning rods for a public outcry in the past year.

    The Brennan Center for Justice, a public-interest law center at the New York University School of Law, rated the New York State Legislature the worst in the nation. Newspaper editorials around the state have waxed indignant about it. Private citizens have started Web sites denouncing state government. On the stump before the November elections, lawmakers tried to out-reform one another.

    Long-time readers may recall an ILB entry from April 8, 2004 about "ghost voting" in the Pennsylvania legislature. The entry notes that tvoting issues also had come up in Indiana, asking: "Remember the controversy in the Indiana General Assembly this year when House Speaker Pat Bauer attempted to permit an absent member to vote via computer?"

    Posted by Marcia Oddi on Saturday, January 08, 2005
    Posted to General Law Related

    Friday, January 07, 2005

    Indiana Law - Future unclear for unbonded official

    "Future unclear for unbonded official: Treasurer could be ousted without required backing" is the headline to this story today in the Richmond Palladium-Item. Some quotes:

    LIBERTY, Ind. -- State officials agree county treasurers in Indiana must be bonded, but they won't say what should happen if they aren't.

    Union County Treasurer Dee Thibaut still isn't covered by an official bond, even though her term began Jan. 1. Thibaut has been unable to get a bond because of a personal bankruptcy. An official bond, which is made payable to the state of Indiana, protects public funds.

    The lack of a bond for an elected official who has already taken office is unusual, officials said. Attorneys at the Indiana Attorney General's office researched the bonding laws and found a case from 1911 in which a county official had an insufficient bond. That case didn't deal with the lack of a bond, said deputy press secretary Sarah Rittman.

    There is a statute, Indiana code 5-4-4-1, that allows the county clerk or a voter to file an affidavit with the court in the event the security for an official bond has become insufficient. The judge of the circuit court would then be required to hold a hearing on the issue, Rittman said.

    The judge could declare the office vacant if a bond isn't presented, according to the law. The Attorney General's office, though, wouldn't say that section of the law is the controlling statute in this case.

    "We don't feel comfortable commenting on this case because it might come to us," Rittman said.

    The Attorney General's office doesn't take enforcement action on its own, Rittman said. If the State Board of Accounts conducted an audit and found the treasurer had no bond, then it would cite the official in an audit report, she said. The audit could be forwarded to the Attorney General for action, Rittman said.

    Posted by Marcia Oddi on Friday, January 07, 2005
    Posted to Indiana Law

    Indiana Decisions - [Updated] One from Supreme Court, one from Tax Court today

    Eric D. Holmes n/k/a Koor An Nur of Mary Katie Brown v. State of Indiana

    This matter is before us on a request by petitioner, Eric D. Holmes, to file a successive petition for post-conviction relief from his death sentence pursuant to Indiana Post Conviction Rule 1, Section 12, and the States Verified Response to Holmes Successive Petition for Post-Conviction Relief. As explained below, permission to file a successive petition is denied. * * *

    Shepard, C.J., and Dickson and Boehm, JJ., concur.
    Sullivan, J., dissents with opinion in which Rucker, J., concurs.
    Sullivan, Justice, dissenting.

    I respectfully dissent from the Courts order denying Petitioner Koor An Nur of Mary Katie Brown (formerly known as Eric D. Holmes) permission to file a successive petition for post-conviction relief. * * *

    I would grant Petitioners request to file a successive petition for post-conviction relief.
    Rucker, J., concurs.

    [Update 1/8/05] This AP story today in the Evansville Courier&Press today provides a little more information on yesterday's 3-2 decision.

    Indianapolis Welding Supply, Inc. v. Indiana Dept. of State Revenue (1/6/05 IndTaxCt - NFP) [Sales Tax]
    Fisher, Judge

    Indianapolis Welding Supply, Inc. (IWS) appeals the final determination of the Indiana Department of State Revenue (Department) which assessed it with unpaid sales and use tax for the 1993, 1994, and 1995 tax years (years at issue). The issue for the Court to decide is whether IWS is entitled to a public transportation exemption. * * *

    Accordingly, the Court finds that IWS was required to deliver the gas to its customers destination; therefore, IWS owned the gas at the time it was being transported, and it is not entitled to the public transportation exemption. See Sam & Mac, Inc. v. Treat, 783 N.E.2d 760, 765 (Ind. Ct. App. 2003) (court found that when seller did not deliver property to an agreed upon destination point, title did not pass to the buyer).

    CONCLUSION. For the aforementioned reasons, the Court AFFIRMS the Departments final determination.

    Posted by Marcia Oddi on Friday, January 07, 2005
    Posted to Ind. App.Ct. Decisions

    Indiana Decisions - 7th Circuit posts 5 today

    Foelker, Richard v. Outagamie County (ED Wis.)

    Winniczek, Hilary M. v. Nagelberg, Sheldon (ND Ill.)

    USA v. Swanson, David H. (SD Ind., Sarah Evans Barker, Judge)

    Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. A jury convicted the defendant, David H. Swanson, of wire fraud, money laundering, interstate transport of converted funds, and tax evasion stemming from a complex scheme of financial manipulations through which Swanson was able to siphon funds for his own personal use as he assisted large agricultural corporations in their various acquisitions and investments. On appeal he challenged the district courts choice of sentencing guidelines as well as its calculations for amount of loss, restitution, and forfeiture. After the parties submitted their initial briefs to this court, two events altered the landscape of this appeal. First, the government conceded that the district court used the improper sentencing guidelines and second, the Supreme Court accepted certiorari in two cases which question the constitutionality of the current federal sentencing practices allowing judges to enhance sentences based on factual determinations made using the preponderance of the evidence standard. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 04-105). The parties submitted supplemental briefs as to the applicability of Booker and Fanfan. Because we agree with both parties that the district court used the improper guidelines, we remand the case for resentencing under the proper guidelines and/or in accordance with the forthcoming United States Supreme Court decisions in Booker and Fanfan. We also remand for new findings as to the proper amount of restitution and forfeiture. * * *

    In sum, we remand this case to the district court for resentencing in light of the forthcoming United States Supreme Court opinions in Booker and Fanan. This may or may not involve application of the 1998 Sentencing Guidelines Manual, but will certainly require some recalculation and additional findings on restitution and forfeiture.

    RIPPLE, Circuit Judge, concurring in part and dissenting in part. I agree entirely with my colleagues with respect to all substantive matters addressed in the opinion of the court. I also agree that the ultimate disposition of sentencing matters in this case must await the Supreme Courts decisions in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 4-105). I would therefore hold our decision in this case until the Supreme Court decides those matters or, in the alternative, I would issue the opinion, but stay our mandate, until those cases are decided and we can give the district court a more definitive ruling on how it ought to proceed in a resentencing proceeding. I can see no judicial economy in placing this case back on the docket of a busy district court until we can say how that court ought to proceed. To this limited extent, I respectfully dissent from the otherwise thoughtful opinion of the court.

    Prela, Gjergj v. Ashcroft, John D. (Petition for Review of an Order of the Board of Immigration Appeals)

    Hoskins, Robert v. Lenear, Connie (ND Ill.)

    Posted by Marcia Oddi on Friday, January 07, 2005
    Posted to Ind. (7th Cir.) Decisions

    Indiana Decisions - Transfer list for week ending January 7, 2005

    Here is the Indiana Supreme Court's transfer list for the week ending January 7, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

    Three cases were granted transfer by the Supreme Court: the Court's opinion in Mirtha McHenry v. State of Indiana (granted with opinion) was posted yesterday (see ILB summary here); Tracy Boatwright, et al. v. Celebration Fireworks, and Christina M. Allgood v. Meridian Security Ins. Co., also were granted transfer.

    Posted by Marcia Oddi on Friday, January 07, 2005
    Posted to Indiana Transfer Lists

    Indiana Courts - Footnotes in Judicial Opinions

    Yesterday, in his opinion in Mirtha McHenry v. State of Indiana (1/6/05 IndSCt), Justice Dickson included this very interesting footnote #2:

    As an experiment, this opinion departs from the author's usual style of citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering to the footnote recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text are placed in footnotes, and substantive matter that otherwise might appear in footnotes is included in the text. This revised format does not meet with universal approval. See Richard A. Posner, Against Footnotes, 38 Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are invited to comment to the Supreme Court Administrator, 315 State House, Indianapolis, IN 46204.
    To better understand the change Justice Dickson is testing, here is the PDF version of his opinion in McHenry.

    Here is Bryan A. Garner's 18-page Summer 2001 article titled "Clearing the Cobwebs from Judicial Opinions."

    And here is Richard A. Posner's 2-page Summer 2001 article titled "Against Footnotes."

    Both of these articles were in the same issue Court Review. Here is the Editor's note to that issue.

    Finally, a real treasure, here is a 32-page presentation on Opinion Writing by Virigina Judge Clifford R. Weckstein. Starting on p. 23, he sets out the July 8, 2001 NY Times article on legal footnotes referenced in the Court Review "Editor's note."

    Posted by Marcia Oddi on Friday, January 07, 2005
    Posted to Indiana Courts

    Indiana Government - Legislative Investigation into Trump Casino Deal Takes Interesting Turn

    Earlier this week a number of papers reported on the legislative interest in the state Gaming Commission's selection of Trump Hotels & Casino Resorts Inc. for a casino in Orange County. Here is a quote from Jennifer Whitson's story Wednesday in the Evansville Courier&Press:

    The Indiana Legislature isn't finished with "The Donald" just yet.

    The Republican in charge of the Indiana House committee that reviews gambling bills said Tuesday he wants the state Gaming Commission not to sign any agreement with Trump Hotels & Casino Resorts Inc. for a casino in Orange County. Rep. Bob Alderman, R-Fort Wayne, also said he wants to review the entire selection process. * * *

    Alderman said he was concerned about Trump's financial situation but also troubled by details of the selection process. Asked if he was alleging wrongdoing, Alderman said he wanted to save some surprises for a committee meeting Thursday, but he promised to ask some "very probing questions." * * *

    Alderman said he wants to hold a hearing next week on a bill he is offering to dismiss the current members of the Indiana Gaming Commission on Feb. 1 and allow Gov.-elect Mitch Daniels to immediately fill the key commission with his appointees.

    Currently, the seven gaming commissioners are appointed by the governor to staggered three-year terms. Alderman also wants to eliminate the requirement that certain commissioners come from communities that have riverboats. "To me that seems like a conflict in itself," Alderman said.

    Daniels also has questioned the selection process that led to Trump winning the right to contract for the Orange County casino, saying it should be more transparent. Alderman said he has invited the two groups who were not chosen, Lost River Development LLC and Orange County Development LLC, to testify at Thursday's hearing.

    When Trump announced its bankruptcy in November, Rep. Jerry Denbo, D-French Lick, said all parties knew the bankruptcy was coming and it would not pose a problem.

    But Tuesday, Denbo said the bankruptcy filing had bogged down the process, which is in negotiations between Trump and the Historic Hotel Preservation Commission, the group appointed to represent Orange County interests.

    That was the prelude. Here is a quote from today's report, from the same reporter/paper:
    Thursday's hearing to review details of the choice of Trump Hotels & Resorts Inc. to run the Orange County casino boiled down to a warning shot to both a local-based commission and Trump. And by the end of the day, Indiana Gov.-elect Mitch Daniels had called for the resignation of all members of the Indiana Gaming Commission and every other commission and board appointed by the governor.
    From Michelle McNeil's story today in the Indianapolis Star:
    On the same day lawmakers quizzed state officials for two hours on the French Lick casino deal, Gov.-elect Mitch Daniels said he, too, wants to review the decision to let Donald Trump's gambling company run the casino.

    In addition, Daniels wants the seven members of the Indiana Gaming Commission, which oversees the regulation of casinos, to submit their resignations. He said he may not accept them all, but he wants to make his own picks for that board.

    "Right now I simply want to know, and I think especially citizens in Orange County and the rest of Indiana want to know, is this company solvent or not?" Daniels said. "One thing no one wants is an operator who then fails and leaves us back at square one."

    And Lesley Stedman Weidenbener reports today in the Louisville Courier Journal:
    Gov.-elect Mitch Daniels called yesterday for the resignations of the Indiana Gaming Commission's seven members, even though none of their four-year terms are about to expire. At least one member said she probably would resign if asked.

    Daniels, a Republican who takes office on Monday, said he wants his own appointees to review the commission's choice of Trump Hotel & Casino Resorts to develop a casino in Orange County. The company has filed for bankruptcy to reorganize its substantial debt. "There are many unanswered questions," Daniels said. * * *

    But Daniels doesn't have the authority to simply appoint a new commission unless the members resign. In fact, he said he hopes that members of all state boards and commissions will offer their resignations. "I think that's the right thing to do," Daniels said. "Not all would be accepted, but we would like to be able to move and bring change to those bodies."

    Such resignations would be unusual at the gaming commission. State law specifically allows its members to keep their seats, even when there's a change in the governor's office. The law requires bipartisan membership and permits a governor to remove members only if they neglect their duties or commit fraud or a crime.

    That's different from the situation that applies to many boards and commissions, whose members serve at the will of the governor and typically are replaced by a new administration.

    Alderman has filed legislation that would change the casino law and allow Daniels to appoint his own commission members. He said he plans to hear the bill in his committee this month.

    Gaming Commission Chairman Don Vowels a member since the group's inception in 1993 said last month that the current law has helped keep politics out of the agency's deliberations. He said then that he did not plan to resign his position, but did not return calls to his office yesterday.

    Two Southern Indiana residents Norman Melhiser of New Albany and Robert Barlow of Madison were recently appointed to the commission by Gov. Joe Kernan. They were not available for comment yesterday.

    Marya Rose, who has served on the commission since 2002, said she understands why Daniels would want to appoint his own members. Rose and the other six members of the commission were appointed by Democratic governors. She said she would likely resign if asked.

    What does the law say? That is the question I asked in an entry dated Dec. 4, 2004, in an earlier discussion of the Trump casino contract (the question is addressed near the end of the entry).

    Posted by Marcia Oddi on Friday, January 07, 2005
    Posted to Indiana Government

    Indiana Government - Revised IEDC bill now available

    House Bill 1003, the 195-page bill proposing revisions to the current Indiana Economc Development law, is now available as reprinted 1/7/05 to incorporate the amendments made by the House Committee earlier this week. Go to the last page (p. 195) to see precisely what revisions to the introduced bill were made in House Committee.

    The bill is now available for 2nd Reading, where it may be subject to amendments from the floor. Given the expedited schedule for this bill, look for it to be scheduled for 2nd Reading in the upcoming week.

    Posted by Marcia Oddi on Friday, January 07, 2005
    Posted to Indiana Government

    Thursday, January 06, 2005

    Indiana government - Daniels names two more men to state positions

    An AP story just posted on the Indianapolis Star website reports that Gov.-elect Mitch Daniels has filled the Commissioner of Labor post and the Workforce Development post with men from Cummins and Lilly, respectively. Some quotes:

    Gov.-elect Mitch Daniels has chosen a corporate lawyer for Cummins Inc. as the new commissioner of the Indiana Department of Labor. At a news conference today, Daniels announced Miguel Rivera's appointment first in Spanish before repeating it in English. "Miguel combines a great business and legal background with a heart for working people," Daniels said.

    Rivera was deputy attorney general for Indiana from 1994 to 1996, when he was appointed to the Indiana Parole Board. He began working for Cummins in 1999 and is currently senior corporate counsel for global litigation for the Columbus-based maker of diesel engines and power generators.

    Rivera said he is not a member of a labor union, but said he was once in high school when he was a bag boy at a grocery store.

    "I look forward to joining Gov.-elect Daniels' team and am eager to jump in to public service to bring about the change that will help the people of Indiana," Rivera said in a news release. Rivera, of Greenwood, has lived in Indiana for 14 years..

    Later in the piece:
    Also today, Daniels said that an Eli Lilly and Co. manager will head the Department of Workforce Development. Ron Stiver is the company's brand strategy and sales manager for Lilly and has been responsible for developing long-term strategies for the company's osteoporosis business unit.
    The ILB's Newly Updated Organization Chart. Access the newly updated ILB organization chart of the Daniels administration here.

    [Update 1/7/05] Here is the expanded Indianapolis Star coverage today, headlined "Daniels taps pair to fill jobs posts: Lilly manager Stiver picked for Workforce Development; Rivera to take over at Labor."

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Indiana Government

    Indiana Decisions - Court of Appeals posts 2 today

    Indiana Department of Natural Resources v. Lick Fork Marina (1/6/05 IndCtApp) [Inverse Condemnation]
    Baker, Judge

    Appellant-defendant Indiana Department of Natural Resources (DNR) appeals the trial courts judgment in favor of appellee-plaintiff Lick Fork Marina, Inc. (Lick Fork). Specifically, DNR raises two issues, one of which we find dispositive: whether the trial court erred in determining that DNR inversely condemned Lick Forks property. Finding that no taking occurred, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. * * *

    The Lease provided that Lick Fork would pay $3,000 per year in rent, which equates to $250 per month, plus small percentages of the gross income derived from boat sales, boat rental, gas sales, and other business operations conducted on the leased premises. Lick Fork retained 90 to 99 percent of the income generated at the facility, depending on the item from which the income was derived. The Lease further stated:

    Title to Property. Title to any and all buildings, structures and other improvements erected or placed on the Leased Real Estate by the Lessee, which are so permanently fixed to the real estate as to become legally a part of the real estate is vested in the United States of America and is leased to the Lessor under the lease attached hereto and marked Exhibit A. All other property placed or erected on the Leased Real Estate by the Lessee shall belong to the Lessee. * * *
    On February 23, 2001, counsel for DNR sent a letter to Lick Fork stating its opinion that the marina building, landscaping, concrete ramps or cement work, pads and stairs, utilities and accessories leading to various docks, in-ground fuel storage with all attachments, utility lines and rip-rap are not personal property. . . . DNR concluded that these items were considered to be the States property and could not be removed. DNR further instructed Lick Fork to remove items of personal property on or before March 31, 2001.

    On April 19, 2001, Lick Fork filed a complaint against DNR entitled, Complaint in Inverse Condemnation, and the trial court treated the case as one arising under Indianas eminent domain statutes. DNR maintained that Lick Fork did not own the property in question and that the dispute regarding the Lease must be handled through application of contract law. On August 30, 2001, the trial court conducted a hearing to determine whether there had been a taking. The trial court adopted Lick Forks proposed findings of fact and conclusions of law, thereby ruling that DNR acquired property belonging to Lick Fork without compensation. * * *

    DNR argues that the trial court erred in finding that DNR effectuated a taking. Specifically, DNR contends that this case should have been decided under principles of contract law and not eminent domain law, and that under the contract, the property in question did not belong to Lick Fork. * * *

    This contract was mutually beneficial to the parties. And Martin Fallon was familiar with the business of operating marina facilities and the laws regulating their operation. Moreover, Martin had former experience in similar enterprises and had been involved in the construction and operation of similar facilities for several years. Thus, it can be said that when he signed the lease on behalf of Lick Fork, he understood the financial implications of the Lease. The contract unambiguously states that fixtures are property of the government and not of Lick Fork. And we must give effect to the intent of the parties in agreeing to this provision. Therefore, we find that any fixtures on the real estate were not the property of Lick Fork, and Lick Fork is not entitled to compensation.
    The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.
    SHARPNACK, J., and FRIEDLANDER, J., concur.

    Joseph E. Napier v. State of Indiana (1/6/05 IndCtApp) [Criminal Law & Procedure]
    Baker, Judge
    This is a case of first impression, where we are called upon to decide the applicability of the rule set forth in Crawford v. Washington, 124 S.Ct. 1354 (2004), as it relates to the States method of establishing a proper evidentiary foundation regarding the admissibility of various documents that are used to prove the results of a criminal defendants breath test. Appellant-defendant Joseph E. Napier appeals his conviction for Operating a Vehicle With a BAC of .08 Percent Or More, a class C misdemeanor, claiming that his conviction may not stand because admitting breath test results by certification documents and a BAC DataMaster Evidence Ticket (BAC ticket) violates the Confrontation Clause[*] of the United States Constitution. Napier further claims that the admission of the breath test ticket violates the Indiana Rules of Evidence, inasmuch as that evidence is inadmissible hearsay.

    We conclude that the admission of the breath test instrument certification documents at issue here did not violate the rule set forth in Crawford. And our legislature has provided that certificates regarding the inspection and compliance with relevant regulations of breath test instruments are admissible in prosecutions for operating a vehicle with a BAC of .08% or greater.

    However, we also find that admitting into evidence the BAC ticket purporting to prove the breath test resultsabsent any live testimony that would establish a foundation for its admissionwas improperly admitted. Thus, we reverse Napiers conviction on this basis. * * *

    [W]e conclude that the procedures permitted by our supreme court and our legislature for establishing a foundation for the admission of the certifications regarding the breath test machine and the regulations of the Toxicology Department do not run afoul of the rule announced in Crawford and the Confrontation Clause. Thus, Napier does not prevail on this issue. * * *

    [W]e were presented with uncontradicted evidence that the breath test operator was, in fact, not properly trained pursuant to the Department Of Toxicologys regulations. In these circumstances, we are of the view that the States manner of proving Napiers breath test results failed because the State failed to lay an adequate evidentiary foundation for their admission into evidence. We must conclude, therefore, that the States failure to present any live testimony at trial from the officer who conducted the tests runs afoul of the Confrontation Clause of the Sixth Amendment to the United States Constitution in light of Crawford. That is, the State failed to establish an adequate evidentiary foundation for the admission of the test results into evidence. Hence, we find that the trial court abused its discretion in admitting Napiers breath test results into evidence, and his conviction is reversed on this basis.
    SHARPNACK, J., and FRIEDLANDER, J., concur.
    [*] The meaning of testimonial evidence has been addressed by this court in two very recent decisions: Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004), and Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004), both of which were handed down on the same day. These cases involved domestic battery convictions where the respective victims did not appear to testify, and the State proceeded with its prosecution on the basis of statements that the victims had supplied to the police that were admitted into evidence under the excited utterance exception to the hearsay rule. We recognized the Crawford courts determination that testimonial statements need not be under oath. It is apparent that our supreme court is also wrestling with the definition of testimonial evidence, inasmuch as transfer was granted in both Hammon and Fowler on December 9, 2004.

    [Note] Hammon and Fowler were both issued on June 14th, 2004. See the ILB entry here. See also the transfer information in this ILB entry from 12/10/04.

    Stories about the young attorney, now nearly legendary, who won two big cases before the U.S. Supreme Court this year, not only Crawford v. Washington but also the even better known Blakely v. Washington, may be found in ILB entries here and here.

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Ind. App.Ct. Decisions

    Indiana Decisions - Supreme Court posts 2 today

    Monica, James & Diane Witte v. Mikayla Mundy, et al. (1/6/05 IndSCt) [Torts]
    Boehm, Justice

    A child and her mother sued when the child was struck by the defendants car. On the eve of trial the mother moved to dismiss her claim. The trial court granted the motion to dismiss but denied the defendants motion to add the mother as a nonparty for purposes of comparative fault. The jury then returned a verdict for the defense. We hold that it was error to refuse to add the mother as a nonparty, but because the plaintiffs invited the error, neither plaintiff can obtain a new trial on that basis. * * *

    The trial courts granting a new trial is reversed. This case is remanded with instructions to enter judgment based on the jury verdict.

    Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

    Mirtha McHenry v. State of Indiana (1/6/05 IndSCt) [Criminal Law & Procedure]
    Dickson, Justice
    Following a jury trial, the defendant, Mirtha McHenry, a bank teller, was convicted of forgery, a class C felony, and theft, a class D felony, as a result of her actions relating to an unauthorized withdrawal of $6,500 from the account of a bank customer. Concluding that the evidence was insufficient to establish her guilt of either crime, the Court of Appeals reversed the convictions and remanded with instructions that she be discharged. We grant transfer and affirm the trial court.[*]

    In her appeal from the convictions, the defendant alleges three grounds for reversal: (1) insufficient evidence; (2) refusal to strike two jurors for cause; and (3) erroneous admission of surveillance videotape.

    1. Sufficiency of Evidence * * * In reversing the jury's verdict, the Court of Appeals failed to restrict its consideration to only the evidence and reasonable inferences favorable to the trial court's verdict, but instead r eweighed the evidence, improperly substituting its own judgment for that of the jury. While the jury could have drawn the same inferences as the Court of Appeals, they did not. They returned a unanimous verdict of guilt on each count. * * * Finding that the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt, we conclude that the evidence was sufficient to support the judgment.

    2. Failure to Exclude Jurors for Cause * * * In the present case, the jurors were challenged not for their relationship with the State but for their status as depositors in the bank where the alleged crimes occurred. The trial court co nsidered the challenge, questioned the jurors, and then denied the challenge. We decline to find any abuse of discretion in this ruling.

    3. Surveillance Videotape * * * Rulings on the admission of evidence are subject to appellate review for abuse of discretion. See footnote We are not persuaded that the trial court abused its discretion in admitting the videotape.

    Conclusion. We grant transfer and affirm the judgment of the trial court.

    Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
    [*]As an experiment, this opinion departs from the author's usual style of citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering to the footnote recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text are placed in footnotes, and substantive matter that otherwise might appear in footnotes is included in the text. This revised format does not meet with universal approval. See Richard A. Posner, Against Footnotes, 38 Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are invited to comment to the Supreme Court Administrator, 315 State House, Indianapolis, IN 46204.

    Comment re Justice Dickson's footnote: I, for one, am glad to see this effort at change and hope it meets with acclaim. However, it is easier to see its impact if you read the case in its intended format -- the Word or WordPerfect version, or a pdf approximation thereof, rather than a butchered html version. Here is a link to the Word version of the case that I have converted to PDF for easy access. Notice that the citations are in footnotes; matters of substance are in the text. I will discuss this further in a separate entry after I review my copy of Bryan Garner's book, Legal Writing in Plain English.

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Ind. Sup.Ct. Decisions

    Indiana Decisions - 7th Circuit posts two today

    Garcia, Jose L. v. Ashcroft, John (Petition for Review of an Order of the Board of Immigration Appeals)

    Owens, George v. Frank, Matthew J. (ED Wis.)

    Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.
    RIPPLE, Circuit Judge. George Owens was convicted in a
    Wisconsin state court of first degree recklessly endangering
    safety while armed, a violation of Wisconsin Statutes
    941.30(1) and the former 939.63(1)(A)(3). After pursuing
    postconviction remedies in the Wisconsin state courts,
    Mr. Owens filed a petition for a writ of habeas corpus in the
    United States District Court for the Eastern District of
    Wisconsin. Mr. Owens petition was denied, and he ap-
    pealed. For the reasons set forth in the following opinion, we
    affirm the judgment of the district court.

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Ind. (7th Cir.) Decisions

    Indiana Law - Hammond Mayor Apparently Concedes Records Access Issue

    "Mayor: Information will flow again - McDermott said he was concerned for city's image" is the headline to this story today in the Munster Times, updating our entry yesterday titled "Hammond mayor denies local paper access to police records." A quote:

    The mayor imposed an embargo, beginning in late December, on media access to crime reports. Times reporters were told reports wouldn't be available for anywhere from one to three weeks after the crime. They were previously available on a same-day or next-day basis. Public officials within the mayor's administration declined to speak to Times reporters.

    McDermott said, "My job as mayor is multifaceted. Part is getting crime statistics out to the public, and that is important. (But,) I felt maybe I was hurting the city by being so accessible.

    "There were people who felt strongly I was doing the wrong thing by not providing those crime statistics. I understand how they felt. I took a lot of complaints," he said.

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Indiana Law

    Indiana Government - More on IEDC changes

    Yesterday the House Committee on Commerce and Economic Development and Small Business finished its consideration of HB 1003, the proposed revisions to the IEDC law, and voted the bill out Do Pass Amended. A number of papers had reports today on yesterday's action:

    • The Louisville CJ published an AP story it headlined "Committee OKs plan on new-job oversight."

    • The Evansville C&P ran a story by Jennifer Whitson headed "Committee launches Daniels' economic development plan." Some quotes:
      Backers of the switch say a board made up of private sector representatives appointed by the governor and not hampered by the "red tape" of normal state agency regulations will be able to move quickly to woo businesses considering locating in Indiana.

      In 2003, the legislature passed a measure to create the board, called the Indiana Economic Development Corporation. But now leaders and Daniels want to go back and fine tune the proposal.

      Instead of the 23-member board first envisioned to run the corporation, the bill trims membership to 12. Daniels will be chairman of the board, which will oversee state grants and loans meant to spur the economy.

      And the corporation will be able to accept private donations that it can use to lure new companies and reward those that stay in Indiana.

      The corporation's independent status has raised concerns for some lawmakers. Democrats wanted to add amendments saying that corporation board members could not make campaign donations and that internal rules for running the corporation would have to be open to public hearings. Those amendments were either defeated or not allowed a vote.

      On Wednesday, the committee included a Democratic amendment that clarified that the corporation's actions were subject to Indiana's open records laws.

      Democrats still expressed concerns about openness and accountability and two eventually voted against the measure.

      "(The bill) takes everything out about what's being said about open government," said Rep. Dave Crooks, D-Washington. "It's going to look like a back-room deal."

      Republicans defended the measure saying it would be more transparent than the department it would replace.

      "If you want ultimate accountability, the governor is the chairman of the board," said Rep. Steve Heim, R-Culver. He said that in the current set-up "you can blame bureaucrats" when things go wrong, but with the change, the buck will stop at Daniels' desk.

    • "Economic bill clears 1st panel: Commerce secretary creation in legislation" is the headline to Niki Kelly's story today in the Fort Wayne JG. Some quotes:
      This is a huge concentration of power in a small group of people who can determine their own rules, said Rep. Carolene Mays, D-Indianapolis.

      The 192-page bill accomplishes a number of critical items advocated by Gov.-elect Mitch Daniels. Foremost, it creates the position of secretary of commerce, which will be filled by Fort Wayne businesswoman Pat Miller.

      Miller who co-founded the successful handbag company Vera Bradley Designs would serve as CEO of the Indiana Economic Development Corp. an entity charged with taking over all business and economic development functions of the soon-to-be-defunct Department of Commerce.

      The bulk of the corporations duties would be to raise private money and use that along with state tax dollars to entice businesses to locate and create new jobs in Indiana.

      The corporation would have a 12-member board of which Daniels would be the chairman. He would appoint the rest, as well as a president who would report to Miller.

      Committee members agreed to add language Wednesday making it clear that the corporation must follow Indiana public access and open-door laws. There is an exception for financial negotiations with companies until incentive packages are finalized.

      The corporation will be free from many other state regulations, including those governing hiring, purchasing and bidding as well as the public process in which administrative rules are made.

      Proponents believe this is necessary to ensure Indiana can move with speed in attracting employers and jobs.

    • "Plan for economic development agency passes 1st test: Full House now will take up Daniels' proposal, which includes replacing Department of Commerce," is the headline to this story by J.K. Wall in the business section of the Indy Star. A quote:
      The proposed legislation would replace the Department of Commerce, which has an $82 million budget, with the economic development commission. It would be controlled by Daniels and 11 other board members.

      Nearly half of the Department of Commerce's budget comes from the federal government in money controlled by the community development and economic policy divisions. Those divisions would be separate from a new development commission.

      The development commission would encompass many economic development programs now separate from Commerce, such as the Small Business Development Corp. and the Steel Industry Advisory Commission.

      The proposal is the first major piece of Daniels' legislative agenda brought to the General Assembly. Daniels has indicated he would like the bill enacted before the end of January. Given that his Republican colleagues control both the House and Senate, the bill is likely to pass.

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Indiana Government

    Law - Justice Breyer reports for jury duty

    Gina Holland reports today in this AP story:

    No one took any notice of the tall, slim man who appeared Tuesday for jury duty. Had he worn his black robe, Supreme Court Justice Stephen Breyer no doubt would have drawn more attention.

    Even Marlborough, Mass., District Court Judge Thomas Sullivan Jr. didn't recognize Breyer until he read the justice's name on a document listing potential jurors for cases he was hearing.

    "When I looked at the slip I said, 'Oh, my God,'" Sullivan said in a telephone interview with The Associated Press. * * *

    According to Sullivan, the defense attorney said, "The last thing I need is two judges on the case."

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to General Law Related

    Indiana Decisions - More on Tuesday's Indiana Supreme Court zoning decision

    The Gary Post Tribune has a story today on the Indiana Supreme Court's decision Tuesday in Chester Borsuk v. Town of St. John (1/4/05 IndSCt) [access ILB summary here - 2nd case]. Some quotes from today's story:

    The decision by the town of St. John in a zoning case more than four years ago was legal, the Indiana Supreme Court decided this week. The states top court upheld the towns denial of a rezoning at a U.S. 41 intersection.

    It said, in a case watched by municipal attorneys around the state, that a towns comprehensive plan is an important ground, but not the only ground for zoning decisions.

    David Austgen, St. Johns town attorney, said the decision protects the process as we know it. All the factors are to be considered (in a zoning case), he said. When they are all considered, the discretion of the Town Council is preserved as a decision-maker. * * *

    [Chester Borsuk, the developer who asked for the rezoning] wanted to rezone half a lot at U.S. 41 and 109th Avenue from residential to commercial; the lots other half already was zoned for business. A house sits on the lots residential-zoned half, but the other half, which fronts U.S. 41, is vacant. A couple of businesses are just north of the lot.

    The Town Council rejected a rezoning request in September 2000 after residents of nearby homes said a business there would aggravate traffic congestion at the already-busy corner. They said 109th Avenue was too narrow to handle the traffic.

    Borsuk and his attorney, Michael Muenich, contended that the town should have granted the rezoning because the towns comprehensive plan calls for commercial zoning along U.S. 41.

    A Lake County court agreed with the towns decision, but the Indiana Court of Appeals reversed it last December. The town appealed to the Supreme Court.

    The Supreme Courts unanimous opinion, released Tuesday, was written by Chief Justice Randall Shepard. A comprehensive plan is a blueprint for a communitys development, it said, but implementing the plan as regards (to) a given piece of real estate may not be the best course of action for the community on a given day.

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Ind. Sup.Ct. Decisions

    Indiana Decisions - Judge Barker issues decision in New Albany adult video store dispute

    "New Albany adult video store can open, judge says" is the headline to this story by Ben Zion Hershberg in the Louisville Courier Journal today. Some quotes:

    After 11 months of litigation, a federal judge has ordered New Albany to allow an adult video store to operate near downtown. Steve Mason, a lawyer for New Albany DVD, said he expects his clients to open the store at 601 W. Main St. early next week.

    The decision, issued Tuesday by U.S. District Judge Sarah Evans Barker, came in a lawsuit filed by the store's owners in which they claimed their constitutional rights were violated when the city shut it down.

    Barker issued a preliminary injunction against the city on grounds that its adult-entertainment zoning ordinance enacted after New Albany DVD had tried to open was too broadly written. * * * Barker's decision was on the store's request for an order allowing it to operate while the case is considered on its merits.

    The legal dispute began last Feb. 19, when the video store opened for a few hours after a city inspector canceled a final inspection of the remodeled building that had been scheduled for that morning.

    That evening the City Council adopted a six-month moratorium on the opening of any sexually oriented businesses in town, and city officials ordered the store closed on grounds that the owners hadn't obtained their final inspection and permits.

    A few days later, lawyers for New Albany DVD filed suit in U.S. District Court, alleging that their clients' constitutional rights of free expression had been violated. * * *

    In her decision, Barker said New Albany has the authority to regulate adult businesses. She also said the city can rely on evidence of the harm that such businesses do to other communities and doesn't have to gather evidence specific to New Albany a point argued, at length, by lawyers and expert witnesses in the case.

    But the city erred in attempting to regulate New Albany DVD through a zoning ordinance that is too broad, Barker said. To protect free-speech rights under the First Amendment, Barker said, restrictions on where adult businesses can operate must be "narrowly tailored."

    The language in New Albany's ordinance prohibiting sexually oriented businesses from locating within 1,000 feet of a church is too broad, she said. She said it might be more appropriate for New Albany DVD's owners to agree not to operate on Sundays or at other times when functions are under way at the Main Street United Methodist Church, which is across the street from the store. * * *

    Because there are no other adult video stores in the city, Barker said, the city is placing limits that are too restrictive on "constitutionally protected speech" by preventing New Albany DVD from operating. She said there are no "alternative channels" for the sale and rental of such materials in town.

    The ILB last reported on this dispute in this Nov. 12, 2004 entry.

    Judge Barker's decision has not yet been posted on the SD Ind. website.

    Posted by Marcia Oddi on Thursday, January 06, 2005
    Posted to Ind Fed D.Ct. Decisions

    Wednesday, January 05, 2005

    Indiana Government - [Updated] Kentucky Man to Head Corrections

    "Kentuckian to lead state prisons" is the headline to a story just posted on the Indianapolis Star website. A quote:

    Gov.-elect Mitch Daniels has named a Kentucky prisons official to be Indiana's new commissioner of the Department of Correction.

    J. David Donahue, 45, will replace the outgoing commissioner, Evelyn Ridley-Turner, who was paid $100,132.

    Donahue currently is deputy commissioner for the Kentucky Department of Corrections in Frankfort, Ky., and is responsible there for supervision of support services in administrative services, corrections training, budget management, correctional industries, offender information and information technology.

    He previously worked as senior vice president and chief operating officer for the U.S. Corrections Corp. in Louisville from 1994 to 1998 and was a case management coordinator for the U.S. Department of Justice federal correctional institution in Fort Worth, Texas, from 1988 to 1990.

    Daniels said Donahue is the first non-Hoosier appointed to his administration.

    "Indiana needs fresh ideas to tackle the problems in this very troubled agency," Daniels said. "The Department of Correction generated the second highest number of critical reports during our 'due diligence' review of state government. Indiana pays Kentucky to guard its prisoners while two new facilities sit virtually empty, and DOC has more managers than guards."

    [Updated 1/6/05] Mary Beth Schneider of the Indianapolis Star reports today on the Donahue appointment in a story headlined: "Kentucky official is hired to lead Indiana's prisons." A quote:
    Asked if Daniels would pursue privatization of prisons, Jane Jankowski, Daniels' press secretary, said the governor-elect's orders to Donahue are the same as to all department heads -- "to look at options that would use taxpayer dollars more wisely. What isn't acceptable to him is the status quo, which is paying Kentuckians to operate a private facility when some of our buildings are empty."

    She added that given that arrangement, "essentially, we already have privatization."

    Donahue -- who has experience working in both public and privately operated corrections systems -- said he "absolutely will evaluate all resources available" for Indiana to provide the best prison system.

    In a similarly headlined story, Lesley Stedman Weidenbener of the Louisville Courier Journal has a story today that begins:
    Gov.-elect Mitch Daniels has named an official from the Kentucky Department of Corrections to head the agency that oversees prisons in Indiana.

    Dave Donahue will leave his post as deputy commissioner of Kentucky's department to be the commissioner of the Indiana Department of Correction.

    A native of Bardstown, Ky., Donahue is the first person from outside Indiana appointed by Daniels.

    "This is a great opportunity to be involved in the vibrant change that Governor Daniels is bringing to the table," Donahue said yesterday in a telephone interview from his office in Frankfort. "I'm excited about his vision, his message, the fact that he has given me the opportunity."

    The ILB's Newly Updated Organization Chart. Access the latest update of the EIS organization chart of the new Daniels administration here.

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Indiana Government

    Indiana Decisions - One today from the Court of Appeals

    Fadia Al-Challah v. Barger Packaging Corporation (12/5/05 IndCtApp) [Statute of Limitations]
    Sharpnack, Judge

    Fadia Al-Challah appeals the trial courts order granting Barger Packaging Corporations (Barger) motion to dismiss Al-Challahs complaint as time barred. Al-Challah raises two issues, which we consolidate and restate as whether the trial court erred by finding that the Journeys Account Statute was not applicable to Al-Challahs complaint and by granting Bargers motion to dismiss Al-Challahs complaint as time barred. We affirm. * * *

    The statute of limitations on employment related actions is governed by Ind. Code 34-11-2-1 (1998), which provides that such actions must be brought within two (2) years of the date of the act or omission complained of. Al-Challah was dismissed from her employment with Barger on October 2, 2001, and she filed a complaint against Barger in federal court and asserted federal law claims under the ADA and state law claims of wrongful discharge in December 2002. Thus, Al-Challahs wrongful discharge claims were filed within the two-year statute of limitations. See I.C. 34-11-2-1. On June 6, 2003, Al-Challah filed a motion requesting to voluntarily dismiss her federal claims with prejudice and to dismiss her state claim without prejudice, and that same day, the federal court signed Al-Challahs proposed order dismissing her federal claims with prejudice and dismissing her state law claims without prejudice. At that time, Al-Challah still had approximately four months remaining before the expiration of the statute of limitations. Al-Challah then filed her state law wrongful discharge claim in the trial court on November 7, 2003, which was one month past the expiration of the two-year statute of limitation for her claim. See I.C. 34-11-2-1. Barger filed a motion to dismiss Al-Challahs complaint as time barred, which the trial court granted.

    Al-Challah argues the trial court erred by dismissing her complaint as time barred because the Journeys Account Statute saved her complaint from the expiration of the two-year statute of limitation. We disagree.

    As our supreme court explained in Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988), rehg denied:

    At common law suits often were dismissed on technical grounds. In such cases, the plaintiff could file another writ known as a Journeys Account. The renewal suit was deemed to be a continuation of the first. The time to bring another suit was computed theoretically with reference to the time required for the plaintiff to journey to where court was held. * * * Although the common law remedy is no longer recognized, Indiana has created a statutory remedy in its place. The Journeys Account Statute, Ind. Code 34-11-8-1 (1998) * * *
    * * * A complaint that is voluntarily dismissed is treated as if it never existed and, thus, cannot toll the statute of limitations. Kohlman, 509 N.E.2d at 232. Because Al-Challah voluntarily dismissed her federal lawsuit, her action did not fail within the meaning of the Journeys Account Statute. Therefore, the trial court did not err by finding that the Journeys Account Statute was not applicable by granting Bargers motion to dismiss Al-Challahs complaint as time barred. * * *

    For the foregoing reasons, we affirm the trial courts order granting Bargers motion to dismiss Al-Challahs complaint. Affirmed.
    BAILEY, J. and MAY, J. concur

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Ind. App.Ct. Decisions

    Indiana Decisions - 7th Circuit posts one today

    Board, Herbert L. v. Farnham, Karl (CD Ill.)

    Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
    COFFEY, Circuit Judge. Brothers Herbert and Jerome
    Board (collectively the Boards), along with three other
    plaintiffs, filed a sixteen-count complaint against fourteen
    defendants in their individual and official capacities alleging
    various constitutional injuries pursuant to 42 U.S.C.
    1983, as well as state law violations dealing with the Board
    brothers arrest, incarceration, and subsequent acquittal on
    murder charges in Edgar County, Illinois. As a result of a
    voluntary dismissal and the district courts unchallenged
    grant of summary judgment in favor of the defendants on a
    number of their claims, only three of the Boards constitutional
    claims survive. On interlocutory appeal, defendantsappellants
    claim the district court erred by not granting
    them summary judgment on the remaining claims because
    they are entitled to qualified immunity. Affirmed.

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Ind. (7th Cir.) Decisions

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

    "Hammond mayor denies local paper access to police records" was the title of an entry dated Dec. 29, 2004. Today the Munster Times reports:

    HAMMOND | The public can read about crimes in the city only after the reports detailing the allegations lie in a drawer somewhere for seven days.

    Mayor Thomas McDermott Jr. enacted the policy Tuesday, making all crime reports public information after a seven-day waiting period.

    He did so the same day an attorney with Indiana's Public Access Counselor ruled Hammond police have been in violation of state law by withholding routine information about criminal activity in the city. * * *

    The Times has been denied access to crime reports since Dec. 21, following the publication of a front-page article and an editorial opposing a pay raise requested by McDermott for 2005. Officials said the newspaper would have to wait three weeks to access crime reports previously released each day.

    In a written opinion, the attorney for the Public Access Counselor said city officials were in violation of the law by not releasing daily reports of crimes committed and people jailed in the city.

    "The police log and lockup information (Times reporters) are seeking must be disclosed, and it is a violation of the Access of Public Records Act to deny ... disclosure," wrote Lea Ellingwood, staff attorney.

    Ellingwood noted records compiled in the course of an investigation may be withheld as deemed necessary. But the Police Department must release a daily log of all people arrested and all crimes, accidents and complaints filed with city police, as required under state law. * * *

    If the waiting period for public records comes as retaliation to the Times' stories or editorial, as has been alleged in several opinion pieces in the newspaper, Ellingwood said that would also violate state law.

    "To the extent that there is a retaliatory motive for the alleged change in production time without any other rationale for the more dilatory production of these specific records, the production time is a violation of the Access to Public Records Act," Ellingwood wrote.

    McDermott disagreed, saying his new records policy applies across the board, to all city departments and all media outlets.

    The Times also has an editorial today on the Hammond mayor's "news blackout."

    Here are the advisory opinions of the Indiana Public Access Counselor; unfortunately they do not yet include 2005.

    Also of interest here may be the Dec. 31, 2004 ILB entry titled "Helping to explain why the term is 'public servant.'"

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Indiana Law

    Indiana Government - Watch your General Assembly Online

    Well, the House anyway. A video setup now sends live feeds while the House of Representatives is in session. You can watch from your web browser, providing you tune in when the General Assembly is in session. Nothing is archived.

    The Senate is not yet participating. However, you may listen to both the House and Senate while they are in session, again via your web browser. Again, nothing is archived.

    And, currently, committee meetings (apparently even those in the House Chambers) are not covered by either audio or video. And there are no transcripts of either the House or Senate while in session, or of committee meetings or hearings.

    But this is a definitely a start in the right direction, as attested by the coverage today in a number of papers:

  • "Anyone with a PC can see Indiana House in action," from the Fort Wayne JG.

  • "Ready, set, action at Indiana House" from an editorial in the IndyStar

  • "State House adds video feeds to legislative Web site" from the SB Tribune.

    Here is the video link and here is the audio link.

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Indiana Government

    Indiana Government - More on Toll Road

    Yesterday's entry quoted a story from the South Bend Tribune. Today an AP story in the Indianapolis Star reports "No Toll Road sale proposal, but Daniels interested in its worth." And the Fort Wayne Journal Gazette editorializes: "Dont sell the Toll Road." A quote:

    The city of Chicago reaped great profits with its 99-year lease of the skyway to a Spanish and Australian consortium, Cintra-Macquarie. But the skyway is less than an 8-mile stretch on that citys south side, compared with 157 miles on the Indiana Toll Road. The skyway simply does not hold for the metropolitan area the transportation and economic significance that the Toll Road holds for northern Indiana. (And it appears, not surprisingly, that tolls on the skyway are going up next month.)

    Were prepared to buckle up and entertain new ideas from Gov. Daniels, including the very large garage sale that he said the state will probably have after it completes an inventory of its assets. Selling off one of the states transportation and economic lifelines, however, suggests a harrowing ride that Hoosiers dont need to take. The new administration should look for another route for solving the states economic problems.

    Finally, the Munster Times opines: "Our opinion: Go very slowly on this one. A toll increase could clobber economic development, and there are legitimate concerns about handing a public roadway over to a private entity."

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Indiana Government

    Indiana Government - Curtain rises on Commerce overhaul

    "Curtain rises on Commerce overhaul" is the headline to the Indianapolis Star story today (in the business section) on the House committee meeting yesterday to consider Gov.-elect Daniels' proposed changes to the Indiana Economic Development Commission (IEDC) law. The committee was the Committee on Commerce and Economic Development and Small Business, the bill is HB 1003. For background, see my entry Monday titled "Economic development and the Indiana Governor."

    Some quotes from the beginning of the Star story:

    A new organization designed to spearhead economic development would have little public oversight under a proposal supported by Gov.-elect Mitch Daniels and considered Tuesday by an Indiana House committee.

    The Indiana Economic Development Corp. would not have to adopt the typical guidelines that require most state agencies to provide opportunities for public comment. Members of the Republican-controlled House Commerce Committee defeated a Democratic amendment that would have allowed those guidelines to apply. The party-line vote was 7-5.

    Also, a legislative amendment that would explicitly require the development corporation to abide by state open-door and open- records laws was tabled until today.

    Lesley Stedman Weidenbener's story today in the Louisville Courier-Journal includes:
    Republican lawmakers also jump-started Gov.-elect Mitch Daniels' agenda by giving one of his top priorities turning the state's economic development duties over to a quasi-public board of directors an immediate committee hearing.

    But Democrats said accelerating the passage of legislation is not necessarily smart. And they complained that yesterday's committee meetings had not been posted on the legislature's Web site with enough time to let the public participate.

    They also said the nearly 200-page bill outlining the proposed Indiana Economic Development Corp. wasn't available until late Monday night, giving them little time to prepare amendments. "That is not giving the public the ability to scrutinize these pieces of legislation or participate in the process," said Democrat Whip Dennie Oxley of English.

    Minority Leader Pat Bauer, D-South Bend, also complained that the economic development legislation actually cuts off public view of actions by the corporation's board, made up of the governor and 11 other members he would appoint. * * *

    Two years ago, the General Assembly passed a law that would transfer this June the duties of the Indiana Department of Commerce to the Indiana Economic Development Corp., a sort of public-private partnership that would provide incentives to companies seeking to move to the state.

    But the 2003 law did not address a number of the complexities involved in the move. So Daniels has proposed several changes. He wants to reduce the size of the board from 23 to 11, give the governor rather than the legislature the power to appoint the members, and speed up implementation to this month.

    The legislation also would create a new commerce secretary, a position Daniels already has said will be filled by Pat Miller, founder of Fort Wayne-based Vera Bradley, a maker of designer bags.

    Daniels has asked the House and Senate to expedite the bill's passage so Miller and other new appointees can start work immediately. Lawmakers seem likely to oblige. * * *

    The group met for two hours and addressed some of the Democrats' concerns. The amended bill now would require the governor to appoint members from both parties and specifies that the agency must adhere to the state's Public Records Act.

    But Republican members refused to require the new agency to follow the same procedures as other state agencies when writing its internal rules. The state process requires public review and provides opportunity for comment.

    Rep. Steve Heim, R-Culver, said the cumbersome rule-making process wouldn't allow the new board to be flexible and react quickly when negotiating with companies that are considering moving to Indiana.

    The committee plans to resume the discussion today.

    In today's Fort Wayne Journal Gazette, Niki Kelly reports:
    While several key Republicans expressed the need for speed and flexibility in economic development, they resisted efforts to increase accountability and oversight of the new entity including ensuring the corporation is subject to the states open records law. A committee vote will be taken on the legislation today.

    The Indiana Economic Development Corp. is a public-private entity that is scheduled to take over the economic development functions of the Indiana Department of Commerce starting July 1.

    But Daniels wants to move the effective date to as early as possible while limiting the corporation board to 12 members himself and 11 members he appoints. He would also name Secretary of Commerce-designee Pat Miller as CEO and Mickey Maurer as president.

    The corporation would be charged with running all the states economic development and business programs, and would be allowed to raise private dollars. One of its chief responsibilities would be negotiating incentive packages to lure companies and new jobs to Indiana.

    Proponents believe it is necessary to speed up the decision-making process, which has been hampered in the past by state regulations and layers of bureaucracy, Lt.-Gov.-elect Becky Skillman said. There is extreme competition among states and we must move quickly, she said.

    The author of the bill Fort Wayne Republican Rep. Randy Borror said it is time to retool Indianas economic development efforts in a more streamlined fashion. * * *

    The GOP also defeated a proposed change that would have required the IEDC to adopt its own rules using the same guidelines other state agencies currently use, which ensure public input.

    [Rep. David] Orentlicher expressed concern about the concentration of power in the corporation and its board and a lack of accountability and public involvement on simple rules. But Borror asked the committee not to tie the hands of the corporation board and give faith to the new administration. The amendment was defeated along party lines.

    [More] Martin DeAgostino writes in the South Bend Tribune:
    The House bill amplifies and accelerates existing law that would abolish the Department of Commerce and roll all its functions into a new agency called the Indiana Economic Development Corp.

    The new agency would function as a public-private partnership, appointed solely by the governor, that would direct all economic development activities. The 12-member board, including the governor, also would distribute millions of dollars in state economic incentives and raise private funds to promote new business investment.

    Proponents say the new structure would be nimbler than the Commerce Department, and thus promote swift and innovative initiatives to attract and retain businesses.

    But Democrats said the 193-page bill requires more scrutiny than Republicans had planned and needs amendments to guarantee public input and oversight.

    Among other things, their amendments would require bipartisan board appointments, specify that Open Door and Public Records laws apply to the agency and prohibit board members from making political contributions.

    House Minority Leader B. Patrick Bauer, D-South Bend, said the amendments are needed because the agency concentrates so many functions and discretionary spending into so few hands."Suddenly," he said, "11 people plus the governor make all these decisions."

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Indiana Government

    Indiana Law Blog mentioned in January Indianapolis Monthly

    Thanks to the reader who pointed out to me that the Indiana Law Blog is mentioned in the new-on-the-newsstands January 2005 issue of Indianapolis Monthly.

    I found the mention, thankfully favorable, on page 30. Some quotes: "Actually useful information", "Nonpartisan", and, under the category labeled "most likely reader," the Indy Monthly writes: "Attorneys, extreme public-policy wonks."

    All are accurate characterizations.

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to About the Indiana Law Blog

    Indiana Law - Report of the Sentencing Policy Study Committee

    Although this report is dated November 2004, I don't recall having seen anything about it. The 142-page Report of the Indiana Sentencing Policy Study Committee may be accessed here. This legislative study was chaired by Senator David Long. Of particular interest is the impact upon this study of the recent United States Supreme Court decision in Blakely v. Washington. Quoting from p. 15 of the Indiana report:

    During the work group process the United State Supreme Court decision in Blakely v Washington was published. This landmark decision became the primary focus of the Criminal Code Revision Work Group. The decision held that:
    A judge may not increase a defendants penalty beyond that which would be available solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Any fact (other than the fact of a prior conviction) necessary to enhance a penalty beyond that which is authorized solely by the jury verdict or guilty plea must be provided beyond a reasonable doubt, if not formally admitted by the defendant. When a sentencing system imposes an upper sentencing threshold, creating an effective maximum sentence, any facts necessary to go above that threshold are subject to jury determination, as are the standard elements of the offense. Thus, the use of judicially determined facts to increase a sentence beyond an effective maximum sentence violates defendants right to a trial by jury. (Blakely v Washington, 542 U.S.___; 124 S.Ct. 2531; No. 02-1632 (June 24, 2004)
    The ultimate recommendation of the Committee relative to Blakely is found on what is page 92 of the pdf document:
    Statutory changes to the criminal code that require the State prove the existence of aggravating circumstances beyond a reasonable doubt before a person convicted of a felony may receive a sentence greater than the presumptive, unless the person has one or more prior unrelated convictions; 2) requires the defendant be provided with notice of the States intention to seek a sentence greater than the presumptive; 3) requires a jury to reconvene to hear evidence on aggravating circumstances if a person is convicted of a felony in a jury trial; and 4) permits a defendant to waive their right to have a jury determine the existence of any aggravating circumstances. The Committee approved PD 3597 (Appendix 2), which is a bill draft incorporating these proposed changes in a 12-0 roll call vote. Judge Good voted as Chief Justice Shepards designee and abstained from the vote in the event the issue would ever come before the Indiana Supreme Court.
    The proposed legislation begins on page 109 (Appendix 2) of the pdf document.

    This bill has been introduced by Senators Long and Howard; it is Senate Bill 96.

    Posted by Marcia Oddi on Wednesday, January 05, 2005
    Posted to Indiana Law

    Tuesday, January 04, 2005

    Environment - Story features U.S. EPA Inspector General

    "Looking Beyond Enforcement at the EPA: An Independent and a Career Auditor, Inspector General Breaks the Mold -- and, She Says, an Occasional Rule," is the headline to this story today in the Washington Post. Some quotes to this story which may have some relevance to themes the new Daniels administration has sounded:

    A certified public accountant with almost 30 years in federal government auditing -- at the General Accounting Office (now the Government Accountability Office) and the Interior Department before the EPA -- [Nikki] Tinsley hardly seems flustered by the uproar. She pointed out that she has audited both Democratic and Republican administrations, and that neither has liked criticism.

    "The joke among auditors is that the two biggest lies are 'We're here to help you' and the response 'We're glad to have you,' " she said with a laugh.

    Tinsley's office has done more than 60 audits and evaluations this year, mostly without notice. She is the agency's in-house auditor of financial statements and recommends periodic improvements in information, procurement and management systems.

    Among her other recent findings: serious weaknesses in the EPA's system for protecting the nation's drinking water from bioterrorism; delays in toxic waste cleanups -- and resulting public health hazards -- caused by Superfund budget shortfalls; and poor EPA oversight of grants, including a multimillion-dollar award to an arm of an ineligible lobbying organization.

    Tinsley has been identifying accountability problems for a decade in the EPA's grants program and is recognized among fellow inspectors general as a grants expert. She now heads a government-wide team of 17 IGs as well as state auditors and the GAO that aims to improve accountability for more than $360 billion in grants annually. * * *

    Congress created the [Inspector General] position to root out waste, fraud and abuse, in hopes of raising public confidence in government. IGs more recently have been evaluating how effectively agencies pursue their goals, and Tinsley is a leader on this frontier, according to Gaston L. Gianni Jr., her counterpart at the Federal Deposit Insurance Corp. and leader of the presidentially appointed IGs council. He calls Tinsley "a tremendous leader in the IG community."

    Posted by Marcia Oddi on Tuesday, January 04, 2005
    Posted to Environment

    Indiana Courts - Practical implementation of the new court rule on access to court records

    Here are the most recent ILB entries on the new Supreme Court rule (""Rule 9") governing access to court records, from 12/17/04 and 12/20/04. The Supreme Court first announced these changes on 11/15/03 (last item). However, as reported today in the Munster Times, in a story headlined "Greater privacy is goal of new court rule:"

    Porter County Clerk Dale Brewer responded to the change Monday by shutting down the public-access computer terminals in Valparaiso and Portage until new software can be installed to eliminate access to the confidential information.

    She also has asked her staff to take on the additional job of removing any confidential information from files before providing them to the public. Attorneys and others filing legal paper work are supposed to make this job easier, she said, by breaking out these details on separate sheets of paper that can be sealed within each file. "What it does is create more paper work," Brewer said.

    Posted by Marcia Oddi on Tuesday, January 04, 2005
    Posted to Indiana Courts

    Indiana Government - Toll Road for sale?

    "For sale? Daniels' idea to sell Toll Road fires debate" is the headline to this story today in the South Bend Tribune. Some quotes:

    INDIANAPOLIS -- With the state facing a $600 million budget deficit, Gov.-elect Mitch Daniels is mulling plans to sell the Indiana Toll Road to private interests -- a proposal that could generate billions of dollars.

    But it's unclear whether lawmakers in northern Indiana will support the controversial idea, because some extra toll revenue is used to finance important projects in their districts.

    Daniels' plan to sell the Toll Road -- also known as Interstate 80/90 -- comes only months after the city of Chicago signed a 99-year lease giving control of the Chicago Skyway to an Australian and Spanish consortium. * * *

    Daniels said Monday he hasn't ordered a feasibility study of a possible Indiana Toll Road sale. But he said all department heads will assemble an inventory of state assets under their purview and report candidates for possible sale or divestiture.

    Daniels said those assets range from vehicles to "major infrastructure" that could be sold to generate income for other important purposes, such as highway construction, the Gary/Chicago International Airport expansion and possible expansion of Indiana ports.

    "We've got a major shortfall between the amount of money available and the infrastructure needs of this state," he said. "So we're going to look at every option, from tolling, to asset sales ... everything that might give us some new money to invest in these kinds of projects." * * *

    When asked whether any state assets should be sacred, Daniels said "yes."

    "There are all sorts of assets that ought to be held forever in public hands," he said "Parks, for instance. But creative governments all over America, and frankly, all over the world, have come to realize there are sometimes better ways to do the people's business than to tie up large amounts of money in bricks and mortar and other assets, when that money could be doing new things."

    Posted by Marcia Oddi on Tuesday, January 04, 2005
    Posted to Indiana Government

    Indiana Decisions - Supreme Court posts two today

    Bank of New York, Trustee v. Stephen H. Nally, et al. (1/4/05 IndSCt) [Property; Real Estate]
    Boehm, Justice.

    We hold that a mortgage recorded before a deed to the mortgagor is recorded but after the deed is dated and delivered is within the mortgagors chain of title as of the time of recording. We also hold that equitable subrogation is an appropriate remedy and available to a subsequent mortgagee who pays off the senior mortgage in total. * * *

    Conclusion. The judgment of the trial court is reversed. This case is remanded for further proceedings consistent with this opinion.
    Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

    Chester Borsuk v. Town of St. John (1/4/05 IndSCt) [Zoning]
    Shepard, Chief Justice
    Chester Borsuk asked the Town of St. John to rezone the half of his lot presently designated residential so that the whole parcel would be commercial. He observes that the Towns comprehensive plan contemplates commercial zoning for the whole lot and argues that the denial of his request was arbitrary and capricious. The comprehensive plan is an important ground, but not the sole ground, on which the Indiana Code says such decisions should be made. We conclude that the Town could lawfully refuse Borsuks request. * * *

    The Court of Appeals reversed [the trial court], with instructions that the trial court order the Town to rezone the parcel. It stated, "[T]he Towns Comprehensive Plan called for the area to be zoned commercial at some point in the future. Borsuks parcel was the only plot of land on the entire block that was not zoned in such a manner. In such a circumstance, the municipality must -- absent a compelling reason -- comply with its comprehensive plans vision and rezone the area for commercial use. Failure to do so would be equivalent to ignoring the provisions of Indiana Code section 36-7-4-603 and, moreover, would render a comprehensive plan meaningless."

    We granted transfer and now affirm the trial court.

    I. Role of the Comprehensive Plan. * * * The Court of Appeals interpretation of the statute -- that a municipality must comply with its comprehension plans vision absent a compelling reason -- attempts to create a rebuttable presumption that the statute does not erect. A municipality must consider all factors and make a balanced determination. Ind. Code Ann. 36-7-4-603.

    II. Not Arbitrary and Capricious. * * * [A]fter weighing all of the statutory factors, the Towns balancing suggested a permissible deviation from the comprehensive plan. These concerns provide a rational basis for the Towns decision, and therefore, it is not arbitrary and capricious.

    III. An Affidavit Supplementing the Public Record. * * * Indiana cases that have strictly adhered to the principle of boards speaking only through their minutes and records seem to have involved situations where the minutes or records were silent on the issue that the additional evidence sought to prove. In these cases, the courts refused to permit the use of external evidence as a substitute for the minutes. In this case, the minutes do address the reasons for denying Borsuks request for rezoning. Therefore, the trial court properly admitted Sawyers affidavit as a supplement to the minutes of the Plan Commission and Town Council.

    IV. Unconstitutional Taking. * * * There has been some debate earlier in this cause over whether or not local ordinances would permit Borsuk to build a commercial structure on the commercially zoned portion of his lot. As a matter of takings law, this debate focuses on a moot point, because Borsuk derives rental income from the residence on his lot. A rented residence is certainly an economically viable use of land. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992). There was no taking here. * * *

    We affirm the trial court.
    Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

    Posted by Marcia Oddi on Tuesday, January 04, 2005
    Posted to Ind. Sup.Ct. Decisions

    Indiana Decisions - 7th Circuit posts one today

    Goulding, Randall v. 37Point9 (ND Ill.)

    Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
    EASTERBROOK, Circuit Judge. This suit has dragged on
    despite being settled. A magistrate judge (presiding by consent
    under 28 U.S.C. �636) brokered the settlement in July
    2003. Defendant (which we call 37Point9, its name at the
    time) was to pay $45,000 in two installments, after which
    the suit was to be dismissed; it was free to tender stock in
    lieu of cash, and plaintiff (which we call �the Trust�) was
    free to reject the shares and stand on its entitlement to
    money. If 37Point9 did not perform on schedule, the Trust
    was entitled to resume the litigation. * * * Affirmed.

    Posted by Marcia Oddi on Tuesday, January 04, 2005
    Posted to Ind. (7th Cir.) Decisions

    Indiana Government - More on annual property tax updates

    Yesterday (scroll down 4 entries) the ILB reported on a new rule from the Department of Local Government Finance that was recently approved by Governor Kernan.

    Here is a copy of the rule, LSA #02-297.

    Yesterday's report quoted from the South Bend Tribune. Today, several additional papers had stories on this development:

  • "New rule to affect property taxes: Rate hikes are likely in '06 with reviews" from the Louisville CJ.

  • "Tax rule may cause increase: Value of homes, businesses to be determined yearly," from the Evansville C&P.

  • "Kernan OKs property tax rule: Trending allows for yearly changes" from the Ft. Wayne JG.

    Posted by Marcia Oddi on Tuesday, January 04, 2005
    Posted to Indiana Government

    Indiana Government - General Assembly convenes today

    There are a number of stories on the convening today of the "long" session of the Indiana General Assembly, plus Gov.-elect Daniels' press conference yesterday unveiling more specifics on his legislative agenda.

    Starting with the Louisville Courier Journal, Lesley Stedman Weidenbener has a story headlined: "Daniels reveals legislative plan; small companies would reap benefits." A quote:

    Today, as the legislature opens its 2005 session, Skillman will testify at a committee hearing on one of Daniels' top priorities: putting a quasi-public corporation in charge of the state's economic development efforts.

    Two years ago, the General Assembly created the Indiana Economic Development Corporation to replace the Department of Commerce next June 30.

    But Daniels wants to reduce the board's membership from 23 members to 12 and to appoint all of the members himself. Current law allows legislative leaders to appoint members. [Note - the GA made some changes last year on appointments, etc., but they don't take effect until 7/1/2005.]

    Daniels' proposal also would take the lieutenant governor off the board and make the governor the chairman. He wants to move up its implementation date to this month and has asked lawmakers to pass the bill as quickly as possible.

    "We're very, very grateful the leadership on both sides of the assembly has decided to make that a first order of business," Daniels said. "We hope for its passage on the most rapid schedule possible."

    The story also includes a nice side-bar detailing Daniels' agenda, and adds that "Daniels has published a summary of his proposals in a booklet that's available by calling the transition office toll-free at (877) 648-2448." (It would be nice if it were readily available online.)

    Jennifer Whitson of the Evansville Courier&Press reports: "Daniels sees light of day: New governor favors daylight-saving time; zone change on hold." Some quotes:

    Gov.-elect Mitch Daniels on Monday reversed his campaign stance and for the first time clearly stated he would seek to have the entire state observe daylight-saving time but not pursue changing time zones. That means if passed, Daniels' proposal would make most of Indiana an hour ahead of the Evansville region all year.

    "In some ideal world maybe we'd all be on the same time all the time, but the critical matter for putting more Hoosiers to work ... is to end the confusion elsewhere about what the heck time is it in Indiana now, this month," Daniels said. * * *

    On other notes, Daniels said his first legislative priority would be to change the effective date of the Indiana Economic Development Corp. The private-public partnership would take over most of the tasks of the current Indiana Department of Commerce but also would raise private donations to do its work. It also would be "free of the red tape" most agencies must follow, Daniels said.

    This legislation, House Bill 1003, will get a hearing today after the House convenes for its first day of session..

    The Fort Wayne Journal Gazette, in a story by Niki Kelly headlined "Daniels sets ambitious session plan: Drops Central Time idea, favors entity to create jobs," reports:
    Other than adding some smaller concepts, the booklet contained most of his proposals from the campaign trail. Daniels has tweaked some of his economic development plans by making them effective in future years to avoid pressing an already-strained budget.

    And he significantly modified part of his daylight-saving time stance.

    In the past Daniels had advocated observing daylight-saving time and moving Indiana to the Central time zone. Now he is no longer pushing the Central time zone, saying the state should observe daylight-saving time but not address the time zone issue.

    That would put most of Indiana on Eastern Daylight Time, except for northwest and southwest Indiana, which would observe Central Daylight Time. Daniels said the change is needed to keep Indiana in step with the global economy.

    Regarding the IEDC changes:
    Daniels most important bill, according to prominence in the book, is creating the Indiana Economic Development Corp. a public-private entity that will lead the states economic development efforts in place of the soon-to-be-extinct Indiana Department of Commerce.

    Current law makes the new entity effective July 1 but Daniels wants to change the makeup of the corporation board and accelerate its effective date. He also wants the corporation which is not considered a state agency to be free of red tape and able to raise private money.

    He said leadership in both chambers have agreed to speed up the process on House Bill 1003 and possibly have the new corporation and board in place by the end of the month.

    There will be a hearing today on the legislation, which is being written by Fort Wayne Republican Rep. Randy Borror. Daniels is seeking a board with 12 members instead of 23. The governor would serve as chairman and appoint the 11 others a major difference from current law, which gave the House and Senate some appointments.

    Mickey Maurer and Secretary of Commerce-designee Pat Miller would serve as president and CEO of the corporation, respectively. Maurer would report to Miller.

    From the Gary Post Tribune: "Local time change not on Daniels agenda." The story includes this quote:
    The incoming governor may try to tinker with Indianas clocks, and if he has his way, most of Northwest Indiana will always be one hour behind most of the state.

    That was just one of the surprises in Daniels legislative agenda, wrapped in a shiny booklet on Monday, outlining many of his goals for the 2005 General Assembly session.

    The Monday unveiling may indicate the quick pace Daniels wants to set for the Legislature, as State Rep. Ralph Ayres, R-Chesterton, had not even read it by late afternoon. Ayres arrived one day early in Indianapolis, and was catching up on the Daniels release. * * *

    In his newest comments, Daniels said he would like to see the Eastern Standard Time zone portion of the state observe daylight-saving time. Ayres said that proposal would have no effect on the Central-time counties in Northwest Indiana. Thats good news for those worried about the Chicago markets.

    Last week, state Sen. Frank Mrvan, D-Hammond, said he would not support any proposal that would shift Northwest Indiana out of sync with Chicago. But the proposal would keep Northwest Indiana one hour behind most of the state. Under the current system, Indiana falls into sync with the Central zone in the spring.

    Daniels considers his proposal to make all of Indiana observe daylight-saving time an economic development initiative. He said it will eliminate confusion for businesses and put Indiana in sync with almost every other state.

    However, similar efforts to mandate the clock change in 77 counties that do not observe daylight-saving time have failed at least 24 times in the past three decades.

    Finally for now, the Munster Times has a story titled "Daniels announces agenda for first day of Legislature." In addition to the items covered above, this story reports:
    Other immediate changes would come from executive orders, Daniels said. These will include ethics reforms such as regulating executive branch lobbying and publishing state contracts on the Internet, the appointment of a secretary of commerce and the breakup of the huge Family and Social Services Agency into smaller parts.

    More controversial and costly goals would come afterward, including moving ISTEP testing to the spring and starting earlier enrollment for kindergarten eligibility. Daniels also discussed a tax amnesty program and the sale of state assets to private corporations as ways to pay for his proposals.

    [More] I somehow neglected to include the front-page Indianapolis Star story this morning by Mary Beth Schneider, headlined "Daniels: It's high time for a change in time." The story is accompanied by a side-bar highlighting the Daniels legislative agency. Some quotes from the end of the story:
    Speaker of the House Brian Bosma, R-Indianapolis, said the legislature will get off to a fast start on that [economic development law change] and other issues.

    In past sessions, he said, "the first two or three weeks of the General Assembly have been the least effective weeks of my lifetime. We vowed to change that, to hit the ground running. Folks are going to hear tires squealing (today.)"

    Some of the items on Daniels' agenda don't require legislative action. The governor-elect said he would take executive action to do such things as order an inventory of state assets with an eye toward selling some of the state's property and equipment. He earlier said one possibility is selling the Indiana Toll Road to raise cash for other state needs.

    One executive order Daniels is weighing is whether to continue the collective bargaining agreements with state employees, threatening the union representation of those employees.

    Daniels said he would not comment on that Monday, calling it the most complicated choice he is facing now.

    Posted by Marcia Oddi on Tuesday, January 04, 2005
    Posted to Indiana Government

    Monday, January 03, 2005

    Indiana Law - Economic development and the Indiana Governor

    This afternoon's local radio news reported that Gov.-elect Mitch Daniel's bill to revise the new economic development commission law would be heard in House Committee tomorrow. As I haven't see the Daniels' proposal, I checked the General Assembly website's House Committee Schedule page, only to be told that Pat Bauer is still Speaker. I believe that is incorrect. Perhaps the page will be updated by the time you read this.

    I then reviewed my May 17, 2004 ILB entry titled "Economic Development and the Indiana Governor." I recommend it to you as background. It begins:

    Introduction. This entry, an opinion piece, has two parts. Part I looks at the problems with the 2003 Indiana Economic Development Corporation law (IEDC) that I pointed out last fall, and asks -- have they been corrected? Part II explores the authority, or lack of authority, the governor elected this fall will have over Indiana economic development, as the law now stands.
    [More 1/4/05] Here is the new IEDC bill - HB 1003, authored by Representative Borror and referred to Committee on Commerce and Economic Development and Small Business, which, according to the news, will meet to consider it today. The digest of the bill, as introduced:
    Economic development. Consolidates various provisions related to the economic development corporation (IEDC) into one article of the Indiana Code. Provides that the governor is the chairperson of the IEDC board. Reduces the membership of the IEDC board from 23 to 12 members. Abolishes the department of commerce, the steel industry advisory commission, the enterprise zone board, the twenty-first century research and technology fund board, the small business development corporation, the film commission, the business modernization and technology corporation, and the economic development council. Transfers the duties and powers of these entities to the IEDC. Specifies that certain programs related to tourism, community development, and energy that are currently administered by the department of commerce shall be administered by the lieutenant governor. Repeals provisions related to functions of the department of commerce that are transferred to the IEDC. Abolishes the office of tourism and community development and the office of energy policy, which were to take over certain duties of the department of commerce on July 1, 2005. Makes conforming changes.

    Posted by Marcia Oddi on Monday, January 03, 2005
    Posted to Indiana Law

    Indiana Courts - St. Joseph Superior Court Judge William C. Whitman retiring

    The South Bend Tribune today has a feature story on St. Joseph Superior Court Judge William C. Whitman, who is retiring this week. Some quotes:

    Attorney Morris Rosen says 24 years as a judge hasn't changed his law school roommate.

    "He was just like he is now. He hasn't changed. He's just the nicest guy," Rosen said of St. Joseph Superior Court Judge William C. Whitman, who is retiring this week. * * *

    Whitman said his name is on another case local residents may remember because it was an annexation statute ultimately found to apply only to St. Joseph County.

    On appeal, Whitman was reversed when the Indiana Supreme Court found the law to be special legislation, which was illegal.

    Interestingly, that case was City of South Bend v. Kimsey, et.al. , discussed here yesterday in an ILB entry about the Fort Wayne airport oral arguments.

    Posted by Marcia Oddi on Monday, January 03, 2005
    Posted to Indiana Courts

    Indiana Government - Annual property tax updates

    A story in the South Bend Tribune today by James Wensits, headlined "New rule lets valuations be revised yearly: Property value updates to minimize change between reassessments," includes these quotes:

    Indiana Gov. Joe Kernan, though expressing concerns about long-term effects on homeowners, has signed into law a new rule that permits annual adjustment of property values for taxation purposes.

    The annual adjustments, which will begin this year, won't replace periodic property reassessments.

    The idea is to use market-based methodology to continually update values on all properties and avoid the huge changes typical in the past when there were several years between reassessments.

    In a letter sent to Gov.-elect Mitch Daniels and top state lawmakers, Kernan said "the concept of annual adjustment is good policy" but warned that "because residential property values will increase relative to agricultural, industrial and commercial values, the rule will shift the tax burden to residential taxpayers."

    Based on a study of 27 counties completed by the Legislative Services Agency, that shift could be substantial.

    The study, which did not include St. Joseph County, estimated a potential 9.3 percent increase in the median property tax burden for residential properties. * * *

    Because of that shift to residential taxpayers, the governor said, it will be necessary for the state to expend an estimated additional $40 million a year in property tax replacement funds.

    The change could also lead to delays in the completion of property tax assessments in 2005 due to changes that will be required in computer valuation systems operated by each county.

    Kernan actually signed the new rule on Thursday, the last day for action on the document, but the letter to Daniels and state lawmakers spelling out his concerns was embargoed until today. * * *

    Despite apparent misgivings about the shifting of the property tax burden, Kernan told the lawmakers that he believes his decision to sign the rule will give them the "greatest flexibility" as they begin the new legislative session. "Putting the rule in place gives state policy-makers the greatest number of options for future action," he said.

    Kernan said in the letter that had he not signed the rule on Thursday, it would have expired, the rule-making process would had to have started again and no annual adjustment would have been possible this year.

    Although the next general property reassessment isn't due until 2009 for taxes payable in 2010, the new rules will permit annual adjustments in assessments so as to reflect market conditions. Adjustments made in 2005 will be reflected in tax bills sent out in 2006.

    Here is the Kernan press release. The new rule is LSA #02-297. Here is a copy of the rule.

    Posted by Marcia Oddi on Monday, January 03, 2005
    Posted to Indiana Government

    Indiana Government - Daniels transition vs. Bush transition

    I thought of the transition to the Daniels administration this morning when I read this story from the Washington Post titled "Transition Is Easier Second Time Around: For Bush, Fewer Jobs to Fill and Less Fuss." The story begins:

    In at least one respect, President Bush's second term already promises to be far different from his first: The presidential transition will be a lot easier.

    Four years ago, Bush began the transition process amid the uncertainty of the Florida recount. That forced him to lay the groundwork to name 15 Cabinet members and hire as many as 600 people for the White House staff and an additional 6,000 political appointees for other key government posts before he even knew for sure that he would be president.

    This time, there are fewer jobs to fill, far less fuss surrounding the process and no real doubt about who was elected president. In a second term, federal agencies do not have to be restocked wholesale with political appointees, and departments need not adopt radically new policy approaches as when a new party assumes power. Also, many top White House staffers -- the key drivers of policy in modern presidential administrations -- are already in place.

    In 2000, the Bush transition operation took more than 90,000 square feet of federal office space on G Street downtown and received $5.3 million in government funds to help launch the new administration in a 37-day sprint to Inauguration Day. This time, most of the transition is being handled within the White House. Although there has been substantial turnover in Bush's second-term Cabinet -- 9 of 15 secretaries are being replaced -- the White House staff is largely intact. Most notably, Chief of Staff Andrew H. Card Jr. and political strategist Karl Rove are staying on in those roles. That provides important continuity as Bush pursues an ambitious and controversial policy agenda, which includes revamping Social Security, curbing lawsuits, reshaping immigration laws and overhauling the tax code.

    Posted by Marcia Oddi on Monday, January 03, 2005
    Posted to Indiana Government

    Indiana Decisions - 7th Circuit posts three today, including Ten Commandments decision

    Mercier, Sue v. Fraternal Order 1254 (WD Wis.)

    Before BAUER, MANION, and KANNE, Circuit Judges.
    MANION, Circuit Judge. For almost forty years, a monument
    inscribed with the Ten Commandments (the Monument)
    has occupied a spot in Cameron Park, a public park in the
    City of La Crosse, Wisconsin (La Crosse or the City).
    Recently, certain residents of La Crosse, joined by an advocacy
    group, sued the City claiming the Monument violated
    the Establishment Clause of the First Amendment. In response,
    La Crosse sold a portion of the park and the Monument
    to the Order of Eagles, the service organization that
    had originally donated the Monument to the City. The
    district court held that this sale violated the Establishment
    Clause. We reverse. * * *

    In the face of litigation threatening the presence of a monument
    of the Ten Commandments in a public park, the City
    of La Crosse decided to sell that Monument and a small
    parcel of land surrounding the Monument to the group that
    had donated the Monument to the City forty years ago. This
    sale has clearly not pleased everyone, and it likely did not
    entirely please anyone. It was, however, constitutionally
    appropriate. The decision of the district court is reversed
    and the case is remanded so that the district court may enter
    an order of summary judgment in favor of the City and the
    Eagles. REVERSED

    BAUER, Circuit Judge. I respectfully dissent.
    If one accepts the premise that, by its present action, the
    authorities of the City of La Crosse has effectively disassociated
    themselves and the City from an endorsement of
    religion by sponsoring a monument of The Ten
    Commandments, the majority opinion is hard to quarrel
    with. But I believe that the District Court had it right; the
    actions of the City actually show a stubborn refusal to
    separate itself from the display of a purely religious monument.
    Having created a problem by the original act of
    permitting a monument of The Ten Commandments to be
    displayed on public property with what any observer would
    have to conclude was an endorsement of the message of the
    commandments, the City elected a solution that I think
    borders on a fraud. * * *

    And, as I recall the story, when asked whether the law of
    God or the law of man was law to follow, the answer by the
    founder of Christianity was, Render unto Caesar the things
    that are Caesars and to God the things that are Gods.
    Neither God nor religion requires an endorsement from
    Governmentnor does the law permit it.
    I would affirm the finding and order of the district court.

    Espinoza-Franco, Wal v. Ashcroft, John D. (On Petition for Review of an Order of the Board of Immigration Appeals)
    Before RIPPLE, EVANS, and SYKES, Circuit Judges.
    PER CURIAM. Walter Leopoldo Espinoza-Franco was convicted
    under an Illinois statute of felony sexual abuse of his
    daughter. The Immigration and Naturalization Service
    against him, arguing that he is removable because he committed
    sexual abuse of a minoran aggravated felony
    under the Immigration and Nationality Act. After a hearing,
    an Immigration Judge ordered his removal, and the
    Board of Immigration Appeals affirmed. Espinoza-Franco
    admits having committed the crime but argues that it is not
    an aggravated felony. Because the crime does constitute an
    aggravated felony, we dismiss his petition for review of the
    administrative proceedings for lack of jurisdiction.
    USA v. Murry, Darnell (ND Ill.)
    Before RIPPLE, KANNE and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. A jury found Darnell Murry
    guilty of one count of transporting fraudulently obtained
    merchandise across state lines in violation of 18 U.S.C.
    2314 and 2, and one count of obtaining goods valued at
    over $1000 through the unauthorized use of an access device
    in violation of 18 U.S.C. 1029(a). On appeal, Murry
    challenges both his conviction and his sentence, claiming
    the district court erred in several evidentiary rulings and in
    instructing the jury on the use of summary charts admitted
    into evidence. He complains the court also erred in setting
    the amount of restitution he is required to pay as part of his
    sentence. We affirm the conviction but vacate and remand
    the sentence so that the district court may adjust the
    restitution order.

    Posted by Marcia Oddi on Monday, January 03, 2005
    Posted to Ind. (7th Cir.) Decisions

    Happy New Year to Indiana Law Blog readers

    On this first work day of 2005, Happy New Year!

    There does not appear to be much news today, so far. I did receive several responses over the holidays to my request for suggestions for the Indiana Law Blog's 2005 Wish List and I will be working on the list today.

    Posted by Marcia Oddi on Monday, January 03, 2005
    Posted to About the Indiana Law Blog

    Sunday, January 02, 2005

    Indiana Decisions - More on Fort Wayne Airport case

    The Supreme Court oral argument in SMDfund, Inc., et al v. Fort Wayne-Allen County Airport Auth., et al took place December 20, 2004. The ILB entry from that date included this information:

    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 [See particularly my thoughts at the end of the 9/21/04 entry].
    Why am I talking abut this now? Because I just this morning ran across a good report on the Dec. 20th oral arguments, by Jennifer Whitson of the Evanville Courier&Press (whose website continues to confound me). Dated 12/21/04, the headline is "High court case may clarify what special legislation is all about." Some quotes:
    The Indiana Constitution requires that all laws be general and applied equally. But throughout the years, lawmakers often have passed laws to aid a specific area. Whether this so-called special legislation, set up for specific areas, is constitutional has been a point of contention. To avoid the debate, lawmakers for years wrote laws that used population brackets and descriptions, instead of city names, to define which cities would be affected.

    But in a split decision the Indiana Supreme Court handed down in January 2003 [City of South Bend v. Kimsey, et.al.], the majority said the legislative maneuver wasn't enough to keep some laws from being special legislation. The court further found that special legislation would be allowed in some circumstances but only when a city or county could show that its unique need necessitated a law.

    Since then it's been somewhat unclear how to proceed and Monday's oral arguments may be the first step toward clarifying the ground rules for lawmakers.

    In his questioning, Justice Theodore R. Boehm's questions seemed to offer two other alternatives - deciding outright whether the Fort Wayne case was permissible special legislation or sending the case back to the trial court to decide that issue.

    Recall that the author of the majority opinion in City of South Bend v. Kimsey, et.al. (Ind.S.Ct. 1/15/03) was Justice Boehm.

    Over the holidays I took the opportunity to watch the 12/20/04 oral argument in SMDfund, Inc., et al v. Fort Wayne-Allen County Airport Auth., et al, via the Indiana Supreme Court's Oral Arguments Online. I highly recommend it.

    Posted by Marcia Oddi on Sunday, January 02, 2005
    Posted to Ind. Sup.Ct. Decisions

    Indiana Government - Stories today

    There are a number of stories today in Indiana papers relating to the issues facing the General Assembly, which is convening this Tueday, Jan. 4th, and the new administration -- Gov.-elect Daniels takes office Monday, Janu. 10th.

    Lesley Stedman Weidenbener of the Louisville Courier Journal has an interview today with Gov.-elect Mitch Daniels, in which he talks "about his plans for the state and his agenda for the General Assembly session that begins this week." Another Weidenbener story today is headlined "State budget is the top priority as GOP prepares to take reins." A third LCJ article is titled "Five Key Players" and looks at five people in the executive and legislative branches. Finally, "GOP must get along to get ahead" is the headline to this Weideneber article.

    "Children's advocates await action: Legislature expected to work on reform" is the headline to this story today by Tim Evans of the Indianapolis Star.

    The Evanville Courier&Press writer, Jennifer Whitson, has this story today titled "Legislature short on money, not issues." Here is a quote:

    As lawmakers face a fairly full plate sorting out the budget and several other initiatives, Gov.-elect Mitch Daniels has said he wants to debate moving the state to daylight-saving time this session.

    Some say Daniels doesn't know how large of a fight he is taking on.

    Server said it is a debate lawmakers would "like to avoid like the plague."

    "We've dealt with it," he said. "The governor's not dealt with it. It's one that he can't win with. Either way you go, you upset people. There's no consensus."

    Sen. Lindel Hume, D-Princeton, agreed. "Some of my constituents are for it and some are against it," Hume said. "And I'm fully behind my constituents."

    Add to the confusion the fact that people don't really understand Daniels' plan. During the campaign, he said he backed petitioning to move the state to the Central time zone observing daylight-saving time. But recently Daniels has said he wants to debate the two issues - resetting clocks twice a year and time zones - separately.

    But for many in Southwestern Indiana, the issues can't be separated. To move to daylight- saving time without a time zone change would mean the Evansville region would be an hour behind Indianapolis and most of the state year-round.

    "It's certainly not in the best interest of Evansville to put us in a different time zone all year," Avery said.

    And though Republicans now enjoy control of the House, Senate and governor's office, Server said that didn't mean it was going to be easy.

    "This is going to be a very contentious session," Server said. "Partially because all of the responsibility is going to be on Republicans. We have no money and my general concern is that we don't get diverted by side issues, like time and other internal fights."

    The Fort Wayne Journal Gazette has an editorial (accompanied by an entertaining cartoon) titled "Balancing act: Lawmakers, Daniels explore political landscape." A quote:
    GOP control of the Statehouse would suggest the session will be a romp for Republicans. Thats not the case. The states delayed recovery from national recession means that lawmakers will finally have to address the budget shortfall they ignored two years ago. It also means Republicans will have to forge unlikely alliances to pass legislation that some of their own wont support. Finally, it means they will have no one else to point to when they fail to pass bills they championed for grandstanding reasons.

    The upshot is that lawmakers will do some things they shouldnt and fail to do some others they should. Here are some possibilities: * * *

    Daylight-saving time. Few legislators will admit it, but a Democratic-controlled House served them well when it came to the third rail of Indiana politics. Legislators straddled the issue by telling constituents who favor a time switch that it was being held hostage by big, bad power brokers in the House. For those who opposed it, lawmakers could simply reassure them that it wasnt going to happen. Nobody wins, nobody loses.

    The governor-elect supports daylight-saving time and believes Indianas fractured time zone situation is an impediment to economic development. It was one of the most clearly articulated positions of his campaign, and those who missed it werent paying attention.

    If Daniels believes strongly enough that the state should adopt daylight-saving time and makes it part of his legislative platform, he will set the stage for the first showdown with members of his own party. His strongest support is likely to come from lawmakers from the heavily Democratic districts in northwest and southwest Indiana, where voters would like to join neighboring Illinois on Central time. Hoosiers in rural areas of the state, represented largely by Republicans, hate the idea of adopting daylight-saving time. * * *

    Gay marriage. Legislation to amend the Indiana Constitution to define marriage as between a man and a woman proved the most divisive in the last session, prompting a walkout by Republican House members. The caucus used it to its advantage in defeating Democratic incumbents and winning control of the House, so approval of the legislation is practically a slam-dunk.

    If lawmakers were truly as supportive of economic development as they claim, they would resist their worst impulses to support this backward legislation. Successful corporate leaders understand that it is bad business to exclude potential employees and customers. They dont discriminate on the basis of sexual orientation not only because its illegal, but because they know they might be excluding a first-rate employee if they do. They extend benefits to same-sex couples for the same reason.

    Politicians, however, look at polls and insist they are following the wishes of their constituents. Later, they wring their hands in despair over the brain drain as Indiana college graduates flee the state to live and work in progressive urban areas where tolerance and diversity are valued. * * *

    [Note from 1/3/05: The Fort Wayne paper has another editorial today looking at these same two issues - access it here.]

    "'This is our best shot' - With plans in place, Daniels and GOP leaders are poised to act: Lawmakers begin work on Tuesday." So reads the headline to this Indianapolis Star story today, by Michele McNeil. A quote:

    Republicans have seized control of both legislative chambers and the governor's office at a particularly daunting time.

    A national recession forced thousands of Hoosiers into unemployment. A state budget deficit that was once near $1 billion still hovers close to $600 million, and lawmakers have used up most of the one-time accounting tricks that could be used to balance it, at least on paper.

    Meanwhile, state government has been riddled with a seemingly endless string of scandals.

    "I really consider this to be a year that, a couple of decades from now, we will look back on and say, 'This is the turning point,' " said Bosma, of Indianapolis.

    Republicans have to figure out how to get Indiana out of this mess. And, unlike in previous years, they won't be able to blame Democrats for failure.

    "I think Republicans are very conscious of that. We sought this opportunity. We earned it. Now we show we know how to use our victory," Daniels said.

    "The pressure -- I like it."

    Finally, for now, here is a useful Star story titled "2005 Legislative Preview: A look at the issues."

    [More] The South Bend Tribune today has two reports from Martin DeAgostino: one is headlined "Daniels' leadership faces test: New governor's reforms may get stalled as lawmakers deal with budget woes;" the second is "Pressure and opportunity await GOP: Democrats face reduced role in House."

    Posted by Marcia Oddi on Sunday, January 02, 2005
    Posted to Indiana Government

    Saturday, January 01, 2005

    Indiana Government - Problems facing governors across the country

    "Vexing Issues Await States, New Leaders in 2005" is the title to this story today from the Kansas City infoZine. Some quotes:

    A cast of first-time governors will bring a fresh approach to their inaugurations in 2005, including a no-frills swearing in at the State Fairgrounds for incoming Indiana Gov. Mitch Daniels (R).

    But while the political style may sometimes be different, the script will remain much the same in 2005 for governors and state lawmakers who again face soaring health care costs that will squeeze state budgets.

    All 50 state legislatures meet in 2005 and will tackle many of the same issues that bedeviled legislatures in 2004, including how to pay for schools, curb soaring health care expenses and rein in high medical malpractice fees. * * *

    Posted by Marcia Oddi on Saturday, January 01, 2005
    Posted to Indiana Government

    Law - Lobbyists working pro bono on some projects

    A story December 27, 2004 in the Washington Post was headlined "Sometimes Lobbyists' Advice Really Is Priceless." A quote:

    Lobbyists are usually reviled as shills for greedy interests. But dozens of them also work without pay to advance projects that embrace the giving spirit. What better time to acknowledge such selflessness than now, the holiday season?
    The story includes examples, such as:
    Right here in Washington, the Capital Area Food Bank is richer thanks to Piper Rudnick LLP. Lobbying by Karen A. Regan and William H. Minor, and advice from Carl L. Vacketta and William A. Smith II, produced a $300,000 gift for the food bank in the D.C. appropriations bill. Piper Rudnick lawyers also regularly hold food drives and fund-raising events to help reduce hunger in the city.

    The District's struggling school system got a boost because of other Patton Boggs lobbying. The Center for Inspired Teaching, which puts public school teachers through rigorous training, received $150,000 in taxpayer money because several of the firm's lawyers pleaded its case in Congress.

    Kidsave International creates model programs around the world that move orphans into adoption or long-term mentoring situations. Pro-bono lobbying by Van Scoyoc Associates brought Kidsave International an appropriation of $400,000 for its on-going work in Russia. * * *

    Even the American League of Lobbyists got into the charitable act. The 25-year-old group decided to put its members' fancy clothes to a higher use. It held what it called a Capitol PurSuit drive and collected more than 7,000 business suits and related items. They were all donated to low-income people who are trying to enter the job market. The league's foundation also raised nearly $150,000 at its annual Members of Congress vs. Lobbyists basketball game in September. The proceeds paid for eye glasses, braces and tutoring for D.C. kids on Capitol Hill.

    Posted by Marcia Oddi on Saturday, January 01, 2005
    Posted to General Law Related